EXHIBIT 1.1
[Managing Underwriters]
Ladies and Gentlemen:
Alcan Inc., a Canadian corporation (the "Company"), proposes to issue U.S.
$ ____________ in principal amount of its ______ % Debentures due ________,
_____, (the "Securities") to be issued pursuant to the provisions of the
Indenture dated as of May 15, 1983, as supplemented (as so supplemented, the
"Indenture"), between the Company and Bankers Trust Company, as Trustee (the
"Trustee"). The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement including a prospectus relating to
up to U.S. $1,000,000,000 in principal amount of debt securities and will file
with, or mail for filing to, the Commission a prospectus supplement specifically
relating to the Securities pursuant to Rule 424 under the Securities Act of
1933. The term "Registration Statement" means the registration statement as
amended to the date hereof. The term "Basic Prospectus" means the prospectus
included in the Registration Statement. If, prior to the execution and delivery
of this Agreement, the Company has filed an abbreviated registration statement
on Form S-3 to register additional Securities pursuant to Rule 462(b) under the
Securities Act (the "RULE 462 REGISTRATION STATEMENT"), then any reference
herein to the term the "REGISTRATION STATEMENT" shall be deemed to included such
rule 462 Registration Statement. The term "Prospectus" means the Basic
Prospectus together with the prospectus supplement specifically relating to the
Securities, as filed with, or mailed for filing to, the Commission pursuant to
Rule 424. The term "preliminary prospectus" means a preliminary prospectus
supplement specifically relating to the Securities together with the Basic
Prospectus. As used herein, the terms "Registration Statement", "Basic
Prospectus", and "premilinary prospectus" shall include in each case the
material incorporated by reference therein.
I.
The Company hereby agrees to sell to the several Underwriters named in
Schedule A hereto and the Underwriters, upon the basis of the representations
and warranties herein contained, but subject to the conditions hereinafter
stated, agree to purchase from the Company, severally and not jointly, the
principal amounts of the Securities set forth below opposite their names in
Schedule A at, _____ % of the principal amount (the "Purchase Price") and
accrued interest from ____________, to the date of payment and delivery.
As compensation for the services of the Underwriters in connection with the
transactions contemplated by this Agreement for investment banking and advisory
services rendered to the Company by the Underwriters, and for the Underwriters
acting as financial advisors to the Company, assisting in the preparation of the
Prospectus and the prospectus supplement, managing the sale of the Securities
and distributing the Securities to the public both directly and through brokers
and dealers, the Company hereby agrees to pay to the Underwriters, on the
Closing Date (as defined below), a commission in the amount of U.S.$
_____________. Such commission shall be paid to the Underwriters by wire
transfer of immediately available funds to an account specified by ____________.
Such commission shall be paid without set-off or counterclaim, and free and
clear of, and without deduction or withholding for or on account of, any present
or future taxes, levies, imposts, duties, fees, assessments or other charges of
whatever nature, imposed by Canada or any Province or Territory thereof, or by
any department, agency or other political subdivision or taxing authority either
thereof or therein, and all interest, penalties or similar liabilities with
respect thereto ("Canadian Taxes"). If any Canadian Taxes are required by law to
be deducted or withheld in connection with the payment of such commission, the
Company will increase the amount paid to the Underwriters so that the
Underwriters receive the full amount of such commission. The obligations of the
Company contained in this paragraph shall survive the delivery of the Securities
to the Underwriters.
II.
The Company is advised by you that the Underwriters propose to make a
public offering of their respective portions of the Securities as soon after
this Agreement is entered into as in your judgment is advisable. The Company is
further advised by you that the Securities are to be offered to the public
initially at ________ % of the principal amount (the "Public Offering Price")
and accrued interest, and to certain dealers at a price which represents a
concession of not in excess of _______ % of the principal amount under their
Public offering Price; that the Underwriters and such dealers may allow a
discount, not in excess of ________ % of the principal amount, to certain other
dealers; and that the Public Offering Price and concession and discount to
dealers may be changed by the Underwriters.
Each Underwriter represents that it has not offered or sold, and agrees
that it will not offer or sell, any of the Securities purchased by it hereunder,
directly or indirectly, in Canada in contravention of the securities laws of
Canada or of any
Province or Territory thereof.
III.
Payment for the Securities shall be made by wire transfer of immediately
available funds to an account specified by the Company. Delivery to the
Underwriters of the Securities in global form and registered in the name of the
Depository Trust Company or its nominee shall take place at the office of Xxxxx
Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00
o'clock A.M., New York time, on ____________ , or at such other time on the same
or such other date, not later ___________, as shall be designated by you and the
Company. The time and date of such payment and delivery are herein referred to
as the "Closing Date".
IV.
The several obligations of the Underwriters hereunder are subject to the
following conditions:
(a) (i) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission; (ii) there shall not have
occurred any downgrading in the rating accorded any debt securities of the
Company by Standard & Poor's Corporation or Xxxxx'x Investors Service, Inc., or
any public announcement by either such organization of an intended or potential
downgrading; and (iii) there shall have been no material adverse change (not in
the ordinary course of business) in the condition of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus; and you
shall have received, on the Closing Date, a certificate, dated the Closing Date
and signed by an officer of the Company, to the foregoing effect. The officer
making such certificate may rely upon the best of his knowledge as to
proceedings pending or threatened.
(b) You shall have received on and as of the Closing Date a favorable
opinion of Xxx Xxxxxxxxxx, counsel of the Company, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a
corporation under the laws of Canada, has received a certificate of compliance
dated as of a recent date under the Canada Business Corporations Act and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or the ownership or leasing of its property
requires such qualification and in which failure to qualify would have a
material adverse effect on the businesses, operations, properties or financial
condition of the Company and its subsidiaries taken as a whole (such counsel
being entitled to rely in respect of the opinion in this clause upon opinions of
local counsel and in respect of matters of fact upon certificates or
representations of officers or senior employees of the Company, provided that
such counsel shall state that he believes that both you and he are justified in
relying upon such opinions, certificates and representations);
(ii) neither the issuance and sale of the Securities hereunder nor the
fulfillment of the terms thereof will contravene any provision" of applicable
law in Canada or the Restated Articles of Incorporation or By-law of the Company
or, to the best knowledge of such counsel, any agreement or other instrument
binding upon the Company;
(iii) the Indenture has been duly authorized, executed and delivered by the
Company and constitutes a valid and binding agreement of the Company;
(iv) the Securities have been authorized by all necessary corporate action
and, when executed and authenticated in accordance with the provisions of the
Indenture and delivered to and paid for by the Underwriters pursuant to this
Agreement, will constitute valid and binding obligations of the Company;
(v) this Agreement has been duly authorized, executed and delivered by the
Company and is a valid and binding agreement of the Company, except as rights to
indemnity and contribution hereunder may be limited by applicable law;
(vi) no consent, approval or authorization of, or registration, recordation
or filing with, any governmental body in Canada is required for the issuance and
sale of the Securities to the Underwriters pursuant to this Agreement and the
Indenture, except such as have been obtained under the Canada Business
Corporations Act and the Securities Act (Quebec);
(vii) no registration of the Securities under the securities and other
similar laws of Canada or of any Province or Territory
of Canada or of any political subdivision thereof, and no approval, permit,
order or filing thereunder, is required in connection with the authorization,
execution, delivery and performance by the Company of this Agreement and the
issue, offer and sale (other than in Canada) of the Securities in the manner
contemplated by this Agreement except for any approval which has been obtained
and filings which have been made under the Canada Business Corporations Act and
the Securities Act (Quebec);
(viii) no registration, recording or filing of the Indenture is required
under the laws of Canada or of any Province or Territory of Canada or of any
political subdivision thereof in connection with the authorization, execution,
delivery and performance by the Company of the Indenture except for an exemption
which has been obtained and filings which have been made under the Canada
Business Corporations Act;
(ix) except as set forth in the Prospectus and the documents incorporated
by reference therein, there are no material pending legal proceedings known to
such counsel to which the Company or any of its subsidiaries is a party or of
which property of the Company or any of its subsidiaries is the subject and to
the best knowledge of such counsel no such proceeding is contemplated;
(x) the statements in the Prospectus under the caption "Description of Debt
Securities", in the Prospectus Supplement under the Caption "Description of the
Debentures" and in the Company's Annual Report on Form 10-K for the fiscal year
ended December 31, 2001, as amended, under the caption "Item 3 -- Legal
Proceedings", insofar as such statements constitute a summary of the documents
and proceedings referred to therein, fairly present the information called for
with respect to such documents and proceedings;
(xi) such counsel has no reason to believe that the Registration Statement
on the date it became effective and the Prospectus on the date of this Agreement
(in either case, as amended or supplemented, if applicable, and except for the
financial statements and schedules included therein, as to which such counsel
need express no belief) contained any 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 (as amended
or supplemented, if applicable, except for the financial statements and
schedules included therein, as to which such counsel need express no belief)
contains any untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
and
(xii) as of the Closing Date, their opinion as summarized in the Prospectus
regarding enforceability of U.S. securities laws is true and correct.
(c) You shall have received on and as of the Closing Date a favorable
opinion of Xxxx Xxxxxxx, Tax Counsel of the Company, to the effect that:
(i) no taxes are payable under the laws of Canada or of any Province or
Territory of Canada in connection with the execution and delivery of the
Indenture or the issuance of the Securities in accordance with this Agreement;
and
(ii) as of the Closing Date, their opinion as set forth in the Prospectus
under the caption "Canadian Taxation" is true and correct.
(d) You shall have received on and as of the Closing Date a favorable
opinion or opinions and letter of Xxxxxxxx & Xxxxxxxx, United States counsel for
the Company, to the effect that:
(i) the Registration Statement has become effective under the Securities
Act of 1933 and the Indenture has been duly qualified under the Trust Indenture
Act of 1939;
(ii) all regulatory consents, authorizations, approvals and filings
required to be obtained or made by the Company under the Federal laws of the
United States for the issuance, sale and delivery of the Securities by the
Company to you have been obtained or made;
(iii) the issuance of the Securities will not result in a default under or
breach of such specified material indentures and loan agreements governed by the
laws of the State of New York as you shall reasonably request;
(iv) assuming the Indenture has been duly authorized, executed and
delivered by the Company insofar as the laws of Canada and of Quebec applicable
laws are concerned, it has been duly executed and delivered by the Company, and
constitutes a valid and legally binding obligation of the Company enforceable in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity principles;
(v) assuming the Securities have been duly authorized, executed,
authenticated, issued and delivered by the Company insofar as the laws of Canada
and applicable laws of Quebec are concerned, they have been duly executed,
authenticated, issued and delivered by the Company, and constitute the valid and
legally binding obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(vi) such counsel shall also state that they have reviewed the
Registration Statement, the Prospectus and the prospectus supplement and
participated in discussions with representatives of the Company and their
counsel, representatives of the accountants of the Company and representatives
of the Underwriters and their U.S. counsel; and on the basis of the information
they gained in the course of the performance of such services, considered in
light of the experience they have gained through practice in this field, such
counsel shall confirm to the Underwriters that the Registration Statement as of
its effective date, and the Prospectus as supplemented by the prospectus
supplement as of the date of the prospectus supplement appeared on their face to
be appropriately responsive in all material respects to the requirements of the
Securities Act of 1933, the Trust Indenture Act of 1939 and the applicable rules
and regulations of the Securities and Exchange Commission thereunder; and
nothing has come to the attention of such counsel has caused them to believe
that (a) the Registration Statement, as of its effective date, contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances in which they were made not misleading or (b)
that, in the course of specified procedures performed by them subsequent to the
effective date of the Registration Statement, the Prospectus, as supplemented by
the prospectus supplement, as of the date of such opinion contained any untrue
statement of a material fact or omitted to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading. Such opinion may state (1) that such counsel do
not assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement, the Prospectus or the
prospectus supplement except for those made under the captions "Description of
Debt Securities" and "Plan of Distribution" in the Prospectus and "Description
of the Debentures" and Underwriting" in the Prospectus Supplement insofar as
they relate to provisions of documents therein described and (2) that they do
not express any opinion or belief as to the financial statements or other
financial data contained in the Registration Statement or the Prospectus or the
prospectus supplement, or as to the statement of eligibility and qualification
of the Trustee under the Indenture under which the Securities are being issued,
or as to any statement of the Company or its counsel with respect to Canadian or
Quebec law, in each case, in the Registration Statement or in documents
incorporated by reference therein.
(e) You shall have received on the Closing Date an opinion of Xxxxx Xxxx &
Xxxxxxxx, counsel for the Underwriters, dated the Closing Date, covering the
matters in (iv) and (v) in (d) above.
It is understood that Xxxxxxxx & Xxxxxxxx and Xxxxx Xxxx & Xxxxxxxx may
base their opinions as to all matters relating to the laws of Canada or any
Province or Territory thereof upon the opinions of Xx. Xxxxxxxxxx, counsel and
Xx. Xxxxxxx, tax counsel. It is further understood that (i) Xx. Xxxxxxxxxx,
counsel, except to the extent specified above, may limit his opinion to the laws
of the Province of Quebec and the laws of Canada (ii) the opinion of Xxxxxxxx &
Xxxxxxxx
shall be limited to the Federal laws of the United States and the laws of the
State of New York. Counsel may state that with respect to (b) (xi) and (d) (ix)
above their belief or opinion, as the case may be, is based upon their
participation in the preparation of the Registration Statement and the
Prospectus and any supplements and amendments thereto and review and discussion
of the contents thereof, but is without independent check or verification except
as specified.
(f) You shall have received on the Closing Date a letter dated the Closing
Date, in form and substance satisfactory to you, from PricewaterhouseCoopers
LLP, independent public accountants, containing statements and information of
the type ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in or incorporated by reference in the Registration Statement and the
Prospectus.
V.
In further consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
(a) to furnish you, without charge, three signed copies of the Registration
Statement (including exhibits and documents incorporated by reference therein)
and to each other Underwriter a copy of the Registration Statement (without
exhibits but including documents incorporated by reference therein) and, during
the period mentioned in paragraph (c) below, as many copies of the Prospectus,
the documents incorporated by reference therein and any supplements and
amendments thereto as you may reasonably request. The terms "supplement" and
"amendment" or "amend" as used in this Agreement shall include all documents
filed by the Company after the date of the Basic Prospectus pursuant to the
Securities Exchange Act of 1934, which are deemed to be incorporated by
reference in the Registration Statement and the Prospectus;
(b) before amending or supplementing the Registration Statement or the
Prospectus with respect to the Securities, to furnish you a copy of each such
proposed amendment or supplement;
(c) if, during such period after the first date of the public offering of
the Securities as, in the opinion of counsel, the Prospectus is required by law
to be delivered in connection with sales by an Underwriter or dealer, any event
shall occur as a result of which it is necessary to amend or supplement the
Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if it is necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses you will furnish to the Company) to which
Securities may have been sold by you on behalf of the Underwriters and to any
other dealers upon request, either amendments or supplements to the Prospectus
so that the statements in the Prospectus as so amended or supplemented will not,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will comply with law;
(d) to endeavor to qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions of the United States as you
shall reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection with such qualification and in
connection with the determination of the eligibility of the Securities for
investment under the laws of such jurisdictions as you may designate; provided,
however, that the Company shall not be required to qualify as a foreign
corporation or file a general consent to service of process in any jurisdiction;
(e) to make generally available to the Company's security holders as soon
as practicable an earnings statement covering a twelve-month period beginning
after the date hereof, which shall satisfy the provisions of Section 11(a) of
the Securities Act of 1933 and the rules and regulations of the Commission
thereunder; and
(f) during the period beginning on the date hereof and continuing to and
including the Closing Date, not to offer, sell, contract to sell or otherwise
dispose of any United States dollar-denominated debt securities of the Company
which are substantially similar to the Securities, without your prior consent,
which consent shall not be unreasonably withheld.
VI.
The Company represents and warrants to each Underwriter that (i) each
document filed or to be filed pursuant to the Securities Exchange Act of 1934
and incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with such Act and the rules and regulations
thereunder, (ii) each part of the registration statement (including the
documents incorporated by reference therein), filed with the Commission pursuant
to the Securities Act of 1933 relating to the Securities, when such part became
effective, did not contain any untrue statement of material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) each preliminary prospectus, if any,
filed pursuant to Rule 424 under the Securities Act of 1933 complied when so
filed in all material respects with such Act and the applicable rules and
regulations thereunder, (iv) the Registration Statement and the Prospectus
comply and, as amended or supplemented, if applicable, will comply as of the
time of such amendment or supplement in all material respects with the
Securities Act of 1933 and the applicable rules and regulations thereunder and
(v) the Prospectus as of its date does not contain and, as amended or
supplemented, if applicable, will not contain as of the time of such amendment
or supplement any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; except that these representations and warranties do not
apply to statements or omissions in the Registration Statement, any preliminary
prospectus or the Prospectus based upon information furnished to the Company in
writing by any Underwriter expressly for use therein.
The Company agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of either
Section 15 of the Securities Act of 1933 or Section 20 of the Securities
Exchange Act of 1934, from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any preliminary
prospectus or the Prospectus (if used within the period set forth in paragraph
(c) of Article V hereof and as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information furnished in writing to the Company by any Underwriter expressly for
use therein; provided that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages or liabilities
purchased the Securities or of any person controlling such Underwriter, if a
copy of the Prospectus (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
Securities to such person, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such loss, claim, damage or
liability.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its Directors, its Officers, its authorized representative
or representatives in the United States, and each person, if any, who controls
the Company within the meaning of either Section 15 of the Securities Act of
1933 or Section 20 of the Securities Exchange Act of 1934, who sign the
Registration Statement and any person controlling the Company to the same extent
as the foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished in writing by
such Underwriter expressly for use in the Registration Statement, any
preliminary prospectus or the Prospectus.
In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable fees and expenses of more than one
separate firm for all such indemnified parties. Such firm shall be designated in
writing by you in the case of parties indemnified pursuant to the second
preceding paragraph and by the Company in the case of parties indemnified
pursuant to the first preceding paragraph. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent
but if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in the second and third paragraphs of
this Article VI is unavailable as a matter of law to an indemnified party in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under either such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting commissions
received by the Underwriters, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Company and of the
Underwriters shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VI 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 in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Article VI, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act of 1933) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Article VI are several in proportion
to their respective underwriting percentages (as defined in the Agreement Among
Underwriters) and not joint.
The indemnity and contribution agreements contained in this Article VI and
the representations and warranties of the Company in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Underwriter or any
person controlling the Company and (iii) acceptance of and payment for the
Securities.
The Company agrees that any legal suit, action or proceeding brought by any
Underwriter to enforce the indemnity or contribution agreements contained in
this Article VI may be instituted in any state or Federal court in The City of
New York, State of New York, waives to the fullest extent permitted by law any
objection which it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding. The Company hereby irrevocably designates and
appoints CT Corporation System (or any successor corporation) as the Company's
authorized agent to accept and acknowledge on its behalf service of any and all
process which may be served in any such suit, action or proceeding in any such
court and agrees that service of process upon CT Corporation System (or said
successor corporation) at its office at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(or such other address in the Borough of Manhattan, The City of New York, as the
Company may designate by written notice to you) and written notice of said
service to the Company, mailed or delivered to Alcan Inc., 0000 Xxxxxxxxxx
Xxxxxx Xxxx, Xxxxxxxx, Xxxxxx, Xxxxxx, X0X 0X0, Attn.: Secretary, shall be
deemed in every respect effective service of process upon the Company in any
such suit, action or proceeding and shall be taken and held to be valid personal
service upon the Company. Said designation and appointment shall be irrevocable
until the principal of and interest on the Securities and all other sums owing
by the Company in accordance with the provisions of the Securities and the
Indenture have been paid in full by the Company in accordance with the
provisions thereof. The Company agrees to take all action as may be necessary to
continue the designation and appointment of CT Corporation System or any
successor corporation in full force and effect so that the Company shall at all
times have an agent for service of process for the above purposes in Xxx Xxxx xx
Xxx Xxxx, Xxxxx xx Xxx Xxxx, Xxxxxx Xxxxxx of America. Nothing in this Article
VI shall affect the right of any Underwriter to serve process in any manner
permitted by law or limit the right of any Underwriter to bring proceedings
against the Company in the courts of any jurisdiction or jurisdictions.
VII.
If, on the Closing Date, any one or more of the Underwriters shall fail or
refuse to purchase the Securities which it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Securities, the other Underwriters shall be obligated, severally in the
proportions which the amounts of Securities set forth opposite their names in
Schedule A hereto bear to the aggregate principal amount of Securities set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as you may specify, to purchase the Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase; provided
that in no event shall the principal amount of Securities which any Underwriter
has agreed to purchase pursuant to Article I be increased pursuant to this
Article VII by an amount in excess of one-ninth of such principal amount of
Securities, without the written consent of such Underwriter.
If, on the Closing Date any Underwriter or Underwriters shall default in its
obligation to purchase the Securities which it has agreed to purchase hereunder,
and the aggregate purchase price of Securities with respect to which such
default occurs is more than one-tenth of the aggregate purchase price of the
Securities to be sold hereunder, you may in your discretion arrange for you or
another party or other parties to purchase such Securities on the terms
contained herein. If within thirty-six hours after such default by any
Underwriter you do not arrange for the purchase of such Securities, then this
Agreement shall terminate without liability on the part of any defaulting
Underwriter or the Company. In the event that, within the respective prescribed
period, you notify the Company that you have so arranged for the purchase of
such Securities you or the Company shall have the right to postpone the Closing
for a period of not more than seven days, in order to effect whatever changes
may thereby be made necessary in the Registration Statement or the Prospectus,
or in any other documents or arrangements. Any action taken under this paragraph
shall not relieve any defaulting Underwriter from liability in respect of any
default of such Underwriter under this Agreement.
This Agreement shall be subject to termination in your absolute discretion,
by notice given to the Company, if prior to the Closing Date (i) trading in
securities generally in the New York Stock Exchange shall have been suspended or
materially limited, (ii) a general moratorium on commercial banking activities
in New York shall have been declared by either Federal or New York State
authorities or (iii) there shall have occurred any material 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 the make it, in your
judgment, impracticable to market the Securities.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by them in connection with the Securities.
This Agreement may be executed in one or more separate counterparts and it is
not necessary that signatures of all parties appear on the same counterpart, but
such separate counterparts together shall constitute but one and the same
agreement.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours,
ALCAN INC.
By: _________________________________
Accepted, ___________________________
By:__________________________________
SCHEDULE A
PRINCIPAL
AMOUNT OF THE
NAME OF UNDERWRITER SECURITIES
TOTAL
