EXHIBIT 1
SEA CONTAINERS LTD.
(a Bermuda company)
2,400,000 Class A Common Shares
(par value $.01 each)
SALES AGREEMENT
______________, 2004
Lazard Freres & Co. LLC
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Sea Containers Ltd., a company incorporated in Bermuda ("Sea
Containers"), confirms its agreement with you with respect to the offer and sale
by Sea Containers of up to 2,400,000 shares (the "Shares") of the class A common
shares, par value $.01 each, of Sea Containers (the "Class A Shares").
Subject to the terms and conditions stated herein, Sea Containers
hereby (i) appoints you as its agent for the purpose of selling any or all of
the Shares in accordance with the provisions of paragraph 2(a) hereof, and (ii)
agrees that whenever Sea Containers determines to sell Shares directly to you as
principal for resale to others, it will enter into a Terms Agreement relating to
such sale in accordance with the provisions of Section 2(b) hereof.
Sea Containers has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (Registration No. 333-
), which has been declared effective, relating to the offer and sale of the
Shares by Sea Containers from time to time in accordance with Rule 415(a)(1)(x)
under the Securities Act of 1933 (the "1933 Act"). Such registration statement,
including the exhibits thereto, at the time it became effective, is hereinafter
called the "Registration Statement," and the prospectus constituting Part I of
the Registration Statement is hereinafter called the "Prospectus," except that
(a) if an amended Prospectus or Prospectus supplement is filed by Sea Containers
pursuant to Rule 424(b) under the 1933 Act, the term "Prospectus" will mean the
last such amendment or supplement, and (b) whenever the Company files any report
pursuant to Section 13(a), 13(c) or 15(d) of the Securities Exchange Act of 1934
(the "1934 Act") which is incorporated by reference into the Registration
Statement pursuant to Item 12 of Form S-3, the terms "Registration Statement"
and "Prospectus" will include such report from and after the time it is filed
with the Commission.
Each Share includes a right (a "Right") to purchase, under certain
circumstances, one two-hundredth of a series A junior participating preferred
share of Sea Containers ("Preferred Share"), subject to adjustment. The Rights
are being issued pursuant to a Rights Agreement dated as of May 9, 1988 and
amended and restated as of June 1, 1998, between Sea Containers two-hundredth of
a series A junior participating preferred share of Sea Containers ("Preferred
Share"), subject to adjustment. The Rights are being issued pursuant to a Rights
Agreement dated as of May 9, 1988 and amended and restated as of June 1, 1998,
between Sea Containers
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and EquiServe Trust Company N.A. (successor to BankBoston, N.A.), as rights
agent (the "Rights Agreement").
SECTION 1. Representations and Warranties. Sea Containers represents
and warrants to you as of the date of this Agreement, and will represent and
warrant to you on each date when any post-effective amendment to the
Registration Statement becomes effective (an "Effective Date"), each Settlement
Date (as defined in paragraph 2(b) below) and each time referred to in
paragraphs 6(a) and 6(b) below (a "Representation Date"), as follows:
(a) The Registration Statement complies in all material
respects with the requirements of the 1933 Act and the rules of the
Commission thereunder and do not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus complies in all material respects with the requirements of
the 1933 Act and the rules of the Commission thereunder, and does not
contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided that the representations and warranties in this paragraph (a)
do not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to Sea Containers in writing by you expressly for
use in the Registration Statement or Prospectus, as provided in
paragraph 7(a) of this Agreement.
(b) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they
were filed with the Commission, complied in all material respects with
the requirements of the 1934 Act and the rules and regulations of the
Commission thereunder, and when read together with the other information
in the Prospectus, do not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they are made, not misleading.
(c) Sea Containers meets the registrant requirements for the
use of Form S-3 for the Registration Statement, and the Registration
Statement meets the requirements set forth in Rule 415(a)(1)(x) under
the 1933 Act and comply in all other material respects with said Rule.
(d) Sea Containers and its subsidiaries have been duly
organized and are validly existing as societies, companies or
corporations, as the case may be, in good standing under the laws of
their respective jurisdictions of organization, with full power and
authority (corporate and other) to own, lease and operate their
respective properties and conduct their respective businesses; each of
Sea Containers and its subsidiaries is in compliance with all laws
requiring its qualification to do business as a foreign corporation, and
is in good standing, in all jurisdictions in which it owns or leases
properties of a nature, or transact business of a type, that would
require such qualification, except where the failure to comply with such
laws would not have a material adverse effect on the condition
(financial or otherwise), earnings, business affairs or business
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prospects of Sea Containers and its subsidiaries considered as one
enterprise (a "Material Adverse Effect").
(e) The outstanding capital shares of the subsidiaries of Sea
Containers have been duly authorized and validly issued and are fully
paid and nonassessable, and Sea Containers owns the outstanding capital
shares of its subsidiaries, directly or indirectly, free and clear of
all liens and encumbrances, except as disclosed in the Prospectus or
except where such liens or encumbrances would not have a Material
Adverse Effect.
(f) To the knowledge of Sea Containers, Deloitte & Touche LLP,
the accountants who certified the financial statements and supporting
schedules included in or incorporated by reference into the Registration
Statement and the Prospectus, are independent public accountants as
required by the 1933 Act and the rules of the Commission.
(g) The consolidated financial statements of Sea Containers and
its consolidated subsidiaries included in or incorporated by reference
into the Registration Statement and the Prospectus present fairly the
financial position and results of operations of Sea Containers and its
subsidiaries on a consolidated basis at the respective dates or for the
respective periods to which they apply; such financial statements have
been prepared in conformity with U.S. generally accepted accounting
principles applied on a consistent basis throughout the respective
periods involved and in compliance with the applicable accounting
requirements of the 1933 Act, the 1934 Act and the rules of the
Commission; and the supporting financial statement schedule or schedules
included or incorporated by reference into the Registration Statement,
when considered in relation to the basic consolidated financial
statements taken as a whole, presents or present fairly in all material
respects the information required to be stated therein. The summary
consolidated financial data included or incorporated by reference in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited consolidated
financial statements included or incorporated by reference in the
Registration Statement.
(h) Since December 31, 2003, the date of the latest audited
financial statements incorporated by reference in the Registration
Statement and the Prospectus, except as otherwise stated in the
Prospectus, (A) there has been no material adverse change in the
condition (financial or otherwise), earnings, business affairs or
business prospects of Sea Containers and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of
business (a "Material Adverse Change"), (B) except for this Agreement
and the transactions contemplated hereby and as otherwise disclosed in
the Prospectus, there have been no transactions entered into by Sea
Containers or any of its subsidiaries, other than those in the ordinary
course of business, which are material with respect to Sea Containers
and its subsidiaries considered as one enterprise, and (C) there has
been no dividend or distribution of any kind declared, paid or made by
Sea Containers on any class of its common shares except ordinary
quarterly cash dividends currently at the rate of $0.025 per Class A
Share and $0.0225 per class B common share of Sea Containers ("Class B
Share").
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(i) There is no action, suit or proceeding before or by any
court or governmental agency or body, United States domestic
("domestic") or foreign (other than as disclosed in or by incorporation
by reference into the Registration Statement), now pending or, to the
knowledge of Sea Containers, threatened, against or affecting Sea
Containers or any of its subsidiaries, which action, suit or proceeding
is required to be disclosed in or incorporated by reference into the
Registration Statement or might result in a Material Adverse Change, or
might materially and adversely affect the sale of the Shares pursuant to
this Agreement and any applicable Terms Agreement; and all pending or
threatened legal or governmental proceedings to which Sea Containers or
any of its subsidiaries is a party or of which any of their property is
the subject and which are not described in or incorporated by reference
into the Registration Statement or otherwise publicly disclosed prior to
the date of this Agreement and any applicable Terms Agreement, including
ordinary routine litigation incidental to their businesses, are,
considered in the aggregate, not material to Sea Containers and its
subsidiaries considered as one enterprise.
(j) There are no contracts or documents of Sea Containers or
any of its subsidiaries which are required to be filed or incorporated
by reference as exhibits to the Registration Statement by the 1933 Act
or by the rules of the Commission, or are required to be described in
the Prospectus, which have not been so filed or incorporated by
reference or described therein.
(k) Neither Sea Containers nor any of its subsidiaries is in
violation of its charter or bye-laws or other constituent documents, or
is in default in the performance or observance of any obligation,
agreement, covenant or condition contained in any contract, indenture,
mortgage, deed of trust or other instrument or agreement to which it is
a party or by which it or its property may be bound or subject, except
for such defaults, if any, that would not have a Material Adverse
Effect.
(1) The execution and delivery by Sea Containers of this
Agreement and any applicable Terms Agreement, the performance by Sea
Containers of, or its compliance with, its obligations under, this
Agreement and any applicable Terms Agreement, the sale and delivery by
Sea Containers of the Shares, the Rights and, upon exercise of the
Rights, the Preferred Shares, and the other transactions contemplated in
this Agreement, any applicable Terms Agreement or the Registration
Statement, do not and will not result in a breach or violation of any of
the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of Sea Containers or any of its subsidiaries under,
(1) any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which Sea
Containers or any of its subsidiaries is a party or by which
any of them is bound or to which any of their properties may
be subject, except for such breaches, violations, defaults,
liens, charges or encumbrances, if any, that would not have a
Material Adverse Effect, or
(2) the charter or bye-laws or other constituent
documents of Sea Containers or any of its subsidiaries, or
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(3) any statute, rule or regulation, or any decree,
judgment or order of any court or governmental agency or body
(domestic or foreign) having jurisdiction over Sea Containers
or any of its subsidiaries or over their respective
properties, except for such breaches, violations or defaults,
liens, charges or encumbrances, if any, that would not have a
Material Adverse Effect.
(m) No consent, approval, authorization or order of, or
registration, qualification or filing of or with, any court or
governmental agency or body (domestic or foreign) is required for the
performance by Sea Containers of its obligations under this Agreement
and any applicable Terms Agreement or the consummation of the
transactions contemplated by this Agreement or otherwise in connection
with the valid sale and delivery by Sea Containers of the Shares, the
Rights and, upon exercise of the Rights, the Preferred Shares except
(1) such as have been or will be obtained or
made under the 1933 Act,
(2) such as have been or will be obtained from the
Bermuda Monetary Authority, and
(3) such as may be required under state securities
laws in connection with the purchase and distribution of the
Shares and Rights by you.
(n) Sea Containers has full power and authority to sell the
Shares as contemplated by this Agreement.
(o) This Agreement, together with any applicable Terms
Agreement, has been duly authorized, executed and delivered by Sea
Containers and is a valid and binding agreement of Sea Containers,
except that (i) the validity of the indemnification and contribution
provisions of Sections 7 and 8 of this Agreement may be limited by
public policy considerations, and (ii) the validity of Section 16 of
this Agreement may be limited by the public policy of the State of New
York, and with respect to the United States District Court for the
Southern District of New York, may be subject to the discretion of the
court pursuant to 28 U.S.C. Section 1404(a).
(p) All of the outstanding capital shares of Sea Containers
(including the Shares) have been duly authorized and validly issued, and
are fully paid and nonassessable, and no holder thereof is subject to
personal liability by reason of being such a holder; none of the
outstanding capital shares of Sea Containers was issued in violation of
the preemptive rights of any shareholder of Sea Containers; and the
descriptions of the Shares and the Rights in the Prospectus are
materially accurate and complete summaries.
(q) The Rights Agreement has been duly authorized, executed and
delivered by Sea Containers; the Rights have been duly authorized by Sea
Containers, and the Rights attached to the Shares are validly issued;
and the Preferred Shares issuable upon exercise of such Rights have
been duly authorized by Sea Containers and validly reserved for issuance
upon the exercise of the Rights and, when issued upon such exercise in
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accordance with the terms of the Rights Agreement, will be validly
issued, fully paid and nonassessable.
(r) The Class A Shares (including the Shares) and the Rights
associated therewith are listed on the New York Stock Exchange and the
Pacific Exchange.
(s) There are no contracts, agreements or understandings
between Sea Containers and any person other than Sea Containers,
granting such person the right to require Sea Containers to include in
the Registration Statement any securities (debt or equity) of Sea
Containers owned or to be owned by such person.
(t) Each of Sea Containers and its subsidiaries has good and
marketable title to all properties and assets owned by it, free and
clear of all liens, charges, encumbrances or restrictions, except such
as (A) are otherwise described in the Prospectus or (B) are neither
material in amount nor materially significant in relation to the
business of Sea Containers and its subsidiaries considered as one
enterprise. All of the leases and subleases material to the business of
Sea Containers and its subsidiaries, considered as one enterprise, and
under which Sea Containers or any subsidiary holds properties, are in
full force and effect, and neither Sea Containers nor any subsidiary has
any notice of any material claim of any sort that has been asserted by
anyone adverse to the rights of Sea Containers or any subsidiary under
any of the leases or subleases mentioned above, or affecting or
questioning the rights of Sea Containers or such subsidiaries to the
continued possession of the leased or subleased premises under any such
lease or sublease.
(u) Except as disclosed in the Registration Statement, or
except as would not individually or in the aggregate have a Material
Adverse Effect, each of Sea Containers and its subsidiaries owns,
possesses or has obtained all material governmental licenses, permits,
certificates, consents, orders, approvals and other authorizations
necessary to own or lease, as the case may be, and to operate its
properties and to carry on the Company's business as presently
conducted, and neither Sea Containers nor any subsidiary has received
any notice of proceedings relating to revocation or modification of any
such licenses, permits, certificates, consents, orders, approvals or
authorizations.
(v) Except as disclosed in the Registration Statement or except
as would not individually or in the aggregate have a Material Adverse
Effect, (A) Sea Containers and its subsidiaries are in compliance with
all applicable Environmental Laws, (B) Sea Containers and its
subsidiaries have all permits, authorizations and approvals required
under any applicable Environmental Laws and are in compliance with their
requirements, (C) there are no pending or threatened Environmental
Claims against Sea Containers or any of its subsidiaries, and (D) there
are no circumstances with respect to any property or operations of Sea
Containers or its subsidiaries that could reasonably be anticipated to
form the basis of an Environmental Claim against Sea Containers or its
subsidiaries. "Environmental Law" means any United States (or other
applicable jurisdiction's) federal, state, local or municipal statute,
law, rule, regulation, ordinance, code, policy or rule of common law and
any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent decree or judgment,
relating to the environment, health, safety or any chemical, material or
substance, exposure to which is
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prohibited, limited or regulated by any governmental authority, and
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices
of noncompliance or violation, investigations or proceedings relating in
any way to any Environmental Law.
(w) Sea Containers and its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurances
that (A) transactions are executed in accordance with management's
general or specific authorization, (B) transactions are recorded as
necessary to permit preparation of financial statements in conformity
with U.S. generally accepted accounting principles and to maintain
accountability for assets, (C) access to assets is permitted only in
accordance with management's general or specific authorization and (D)
the recorded accountability for assets is compared in all material
respects with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(x) Sea Containers has established and maintains disclosure
controls and procedures (as such term is defined in Rule 13a-14 under
the 1934 Act), which (i) are designed to ensure that material
information relating to Sea Containers, including its consolidated
subsidiaries (other than GE SeaCo SRL, Orient-Express Hotels Ltd. and
Orient-Expess Hotels Inc.), is made known to Sea Containers' principal
executive officer and its principal financial officer by others within
those entities, particularly during the periods in which the periodic
reports required under the 1934 Act are being prepared, (ii) have been
evaluated for effectiveness as of the end of the period covered by Sea
Containers' most recent annual or quarterly report filed with the
Commission, and (iii) are effective in all material respects to perform
the functions for which they were established. Based on the evaluation
of Sea Containers' disclosure controls and procedures described above,
Sea Containers is not aware of (a) any significant deficiency in the
design or operation of internal controls which could adversely affect
Sea Containers' ability to record, process, summarize and report
financial data or any material weaknesses in internal controls or (b)
any fraud, whether or not material, that involves management or other
employees who have a significant role in Sea Containers' internal
controls. Since the most recent evaluation of Sea Containers' disclosure
controls and procedures described above, there have been no significant
changes in internal controls or in other factors that could
significantly affect internal controls.
(y) Sea Containers and its officers and directors are in
compliance with applicable effective provisions of the Xxxxxxxx-Xxxxx
Act of 2002 and the rules and regulations promulgated in connection
therewith (the "Xxxxxxxx-Xxxxx Act"), and are actively taking steps to
ensure that they will be in compliance with other applicable provisions
of the Xxxxxxxx-Xxxxx Act upon their effectiveness.
(z) Neither Sea Containers nor any affiliate of Sea Containers
has taken, nor will Sea Containers or any affiliate take, directly or
indirectly, any action which is designed to or which has constituted or
which would be expected to cause or result in stabilization or
manipulation of the price of any security of Sea Containers to
facilitate the sale or resale of the Shares.
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(aa) Sea Containers and its subsidiaries have filed all
necessary U.S. federal, state and foreign income tax returns and have
paid all taxes shown by such returns which are due and payable, and any
related or similar assessment, fine or penalty levied against any of
them, except in each case as may be being contested in good faith and by
appropriate proceedings. Sea Containers and its subsidiaries have made
adequate charges, accruals and reserves in the applicable financial
statements described in the Registration Statement and Prospectus in
respect of all U.S. federal, state and foreign income taxes for all
periods as to which the tax liability of Sea Containers or any of its
subsidiaries has not been finally determined.
SECTION 2. Authorization for Offers; Sales as Agent; Purchases as
Principal; Suspensions of Offers.
(a) Sales as Agent. On the basis of the representations and warranties
herein contained, and subject to the terms and conditions herein set forth, you
agree, as agent for Sea Containers, to use your best efforts to sell the Shares
upon the terms and conditions set forth in the Prospectus and hereinafter
provided. Sea Containers may on any business day deliver notice to you by
telephonic communication and confirmed by any standard form of written
telecommunication (the "Authorization") confirming the minimum price at which
you may sell the Shares and the limitation, if any, on the number of Shares
which may be sold at such price, and the terms of such Authorization shall
remain in effect until receipt by you of a subsequent Authorization which
modifies the terms of the previously delivered Authorization. The terms
contained in the most recently delivered Authorization may be modified
subsequent to the delivery thereof by telephonic or other form of communication,
provided that you shall not be bound by, or subject to any liability with
respect to, such modification until a reasonable time after receipt by you from
Sea Containers of a subsequent Authorization containing such modifications.
Sea Containers reserves the right, in its sole discretion, to suspend
sales of the Shares commencing at any time for any period of time or
permanently. Upon receipt of instructions from Sea Containers, you will
forthwith suspend such sales for Sea Containers until such time as Sea
Containers has advised you that sales may be resumed.
Sea Containers agrees to pay you a commission in respect of agency
transactions in the amount of ten cents per Share.
(b) Purchases as Principal. Each sale of Shares to you as principal
other than a block transaction will be made in accordance with the terms of this
Agreement and a separate agreement to be entered into between you and Sea
Containers which will provide for the sale of such Shares to, and the purchase
and reoffering thereof by, you. Each such separate agreement (which will be
substantially in the form of Exhibit A hereto and which may take the form of an
exchange of any standard form of written telecommunication between you and Sea
Containers) is herein referred to as a "Terms Agreement." Your commitment to
purchase Shares pursuant to any Terms Agreement will be deemed to have been made
on the basis of the representations and warranties of Sea Containers herein
contained and will be subject to the terms and conditions herein set forth. Each
Terms Agreement will specify the number of Shares to be purchased by you
pursuant thereto, the price to be paid to Sea Containers for such Shares, the
initial public
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offering price, if any, at which the Shares are proposed to be reoffered, and
the date, time and place of delivery of and payment for such Shares (the
"Settlement Date"). Such Terms Agreement will also specify any requirements for
opinions of counsel and letters from Deloitte & Touche LLP pursuant to Section 5
hereof.
(c) Manner of Sales.
(1) The sale of the Shares through you as agent or by you as
principal may be effected from time to time by means of (A) ordinary
brokers' transactions and transactions in which the broker-dealer
solicits purchasers, (B) block transactions (which may involve crosses)
in accordance with the rules of any exchange on which the Class A Shares
may be admitted to trading (an "Exchange" or the "Exchanges"), in which
you may attempt to sell Shares as agent but may purchase and resell all
or a portion of the block as principal, (C) "fixed price offerings" off
the floor of the Exchanges, or "exchange distributions" and "special
offerings" of Shares under the rules of the Exchanges, (D) short sales,
(E) a combination of any such methods of sale, in each case on the
Exchanges, in the over-the-counter market, through negotiated
transactions or otherwise, or (F) any other method permitted pursuant to
applicable law. Such transactions may be effected by you at market
prices prevailing at the time of sale, at prices related to such
prevailing market prices, at negotiated prices or at fixed prices. You
may effect such transactions by selling Shares to or through other
broker-dealers, and such other broker-dealers may receive compensation
in the form of underwriting discounts, concessions or commissions from
you and/or commissions from the purchasers of Shares for whom they may
act as agent (which discounts, concessions or commissions will not
exceed those customary in the types of transactions involved). In
connection with the sale of the Shares, you may also receive commissions
from purchasers of Shares for whom you may act as agent.
(2) Sea Containers acknowledges that nothing in this Agreement
will prohibit you from (A) acting as broker for the sale of shares of
Sea Containers by customers other than Sea Containers, (B) soliciting
the sale of shares of Sea Containers through you as broker for the
seller, soliciting the sale of shares of Sea Containers to you as
principal and soliciting offers to buy shares, (C) purchasing shares of
Sea Containers otherwise than pursuant to this Agreement, and (D)
offering and selling as principal for your own account shares of Sea
Containers which you have purchased otherwise than pursuant to this
Agreement.
(d) Procedures. Administrative procedures respecting the sale of Shares
will be agreed upon from time to time by you and Sea Containers, and as of the
date of this Agreement, the administrative procedures relating to transactions
in your capacity as agent pursuant to paragraph 2(a) hereof are set forth in
Exhibit B hereto (the "Procedures"). You and Sea Containers agree to perform the
respective duties and obligations specifically provided to be performed by you
and Sea Containers herein and in the Procedures.
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(e) Delivery. The documents required to be delivered by Sections 5 and
6 hereof will be delivered at the office of your counsel, Shearman & Sterling
LLP at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 on the dates provided in
Sections 5 and 6, or at such other places or times as you and Sea Containers may
agree upon.
SECTION 3. Covenants of Sea Containers. Sea Containers covenants with
you as follows:
(a) Sea Containers will advise you immediately and confirm such advice
in writing:
(i) of Sea Containers' intention to amend or supplement the
Registration Statement or the Prospectus (otherwise than by the filing
of periodic reports pursuant to Section 13(a) of the 1934 Act), and Sea
Containers will furnish you with copies of any such amendment or
supplement a reasonable time in advance of filing, and will not file
such amendment or supplement without your consent, which consent shall
not be unreasonably withheld;
(ii) of the filing of any document incorporated by reference
in the Registration Statement, will furnish you with copies of any such
document concurrently with such filing and promptly thereafter will
make available to you for consultation appropriate personnel of Sea
Containers so as to permit you to conduct due diligence with respect to
such filing;
(iii) of the receipt of any comments from the Commission with
respect to the Registration Statement or the Prospectus or the request
by the Commission for any amendment to the Registration Statement or
any supplement to the Prospectus or for additional information relating
to the Registration Statement or the Prospectus or any document
incorporated by reference into the Prospectus;
(iv) of the filing or effectiveness of any amendment or
supplement to the Registration Statement or the Prospectus; and
(v) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the
suspension of the qualification of the Shares for offering or sale in
any jurisdiction or the institution or threat of any proceeding for any
such purposes. Sea Containers will use its best efforts to prevent the
issuance of any such order or of any order suspending such
qualification and to obtain as soon as possible its lifting at the
earliest possible moment, if issued.
(b) If at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Shares, any event shall occur or
condition exist as a result of which it is necessary, in the reasonable opinion
of counsel for Sea Containers, to amend or supplement the Prospectus so that it
will not include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein not misleading
in the light of the circumstances existing at the time it is delivered to a
purchaser, or if it shall be necessary, in the reasonable opinion of such
counsel at any such time to amend or supplement the Registration Statement or
the Prospectus in order to comply with the requirements of the 1933 Act or the
rules of the Commission, Sea Containers will give you immediate notice to cease
the sale of the
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Shares in your capacity as agent and to cease sales of any Shares you may then
own as principal, and Sea Containers will, subject to subsection 3(a)(i), if
applicable, promptly prepare and file with the Commission such amendment or
supplement, whether by filing documents pursuant to the 1934 Act, the 1933 Act
or otherwise, as may be necessary to correct such untrue statement or omission
or to make the Registration Statement comply with such requirements.
(c) Promptly after Sea Containers releases to the general public
quarterly financial statement information of Sea Containers, interim financial
statement information with respect to any unanticipated charge or gain or, upon
your request, any other interim financial statement information related to Sea
Containers with respect to each of the first three quarters of any fiscal year,
or preliminary financial statement information with respect to any fiscal year,
Sea Containers will furnish to you copies of such documents and will file with
the Commission a Form 8-K under the 1934 Act that includes (or Sea Containers
shall, subject to subsection 3(a)(i), if applicable, otherwise cause the
Registration Statement to be amended and the Prospectus to be supplemented to
include or incorporate by reference) such financial statement information and,
if and to the extent relevant, corresponding information for the comparable
period of the preceding fiscal year; provided that if on the date of such
release, and for so long thereafter as, (i) all sales of Shares previously made
pursuant to paragraph 2(a) of this Agreement have settled, (ii) you are not
obligated to purchase Shares under a Terms Agreement, and (iii) you are not
offering for sale any Shares which you are holding as principal and which you
acquired under a Terms Agreement, then Sea Containers will not be obligated to
file such a Form 8-K or otherwise amend or supplement the Prospectus.
(d) Promptly after Sea Containers releases to the general public
audited financial information of Sea Containers for any fiscal year, Sea
Containers will furnish to you copies of such documents and will, subject to
subsection 3(a)(i), if applicable, cause the Registration Statement to be
amended and the Prospectus to be supplemented, whether by the filing of
documents pursuant to the 1934 Act, the 1933 Act or otherwise, to include or
incorporate by reference such audited financial statements and the report or
reports, and consent or consents to such inclusion or incorporation by
reference, of the independent accountants with respect thereto; provided that if
on the date of such release, and for so long thereafter as, (i) all sales of
Shares previously made pursuant to paragraph 2(a) of this Agreement have
settled, (ii) you are not obligated to purchase Shares under a Terms Agreement,
and (iii) you are not offering for sale any Shares which you are holding as
principal and which you acquired under a Terms Agreement, then Sea Containers
will not be obligated so to amend or supplement the Prospectus.
(e) Sea Containers, during the period when the Prospectus is required
to be delivered under the 1933 Act in connection with the offering or sale of
the Shares, (i) will file promptly all documents required to be filed by it with
the Commission pursuant to Section 13(a), 13(c) or 15(d) of the 1934 Act, and
(ii) will obtain the written consent of Sea Containers' independent accountants
for the incorporation by reference in the Registration Statement of their
reports on the audited financial statements contained in Sea Containers' annual
reports on Form 10-K under the 1934 Act.
11
(f) Sea Containers will furnish to you such copies of the Prospectus
and all amendments and supplements thereto, in each case as soon as available
and in such quantities as you may reasonably request.
(g) Sea Containers will make generally available to its securityholders
as soon as practicable earnings statements (in form complying with the
provisions of Rule 158 under the 0000 Xxx) with respect to each sale of Shares
under a Terms Agreement.
(h) Until this Agreement is terminated, Sea Containers will furnish to
you, as soon as available, (i) a copy of each of its annual reports to
shareholders, (ii) a copy of each other document mailed by Sea Containers to its
shareholders, (iii) each press release or announcement issued by Sea Containers,
and (iv) from time to time, such other information concerning Sea Containers and
its subsidiaries as you may reasonably request.
(i) Sea Containers will cooperate with you in qualifying the Shares,
including the Rights associated therewith, for offering and sale under the laws
of such jurisdictions as you shall reasonably designate and will cooperate with
you in continuing such qualifications in effect so long as required for the
distribution by you of such Shares and Rights; provided that in connection with
such qualification, Sea Containers will not be required to qualify as a foreign
corporation or a securities dealer in any jurisdiction, or to consent to the
service of process under the laws of any jurisdiction (except service of process
with respect to the offering and sale of the Shares) or to take any action which
would or could subject Sea Containers to taxation in any jurisdiction where it
is not now so subject. Sea Containers will execute such statements and reports
you prepare as may be required by the laws of each jurisdiction in which the
Shares and Rights are being qualified. Sea Containers will also supply you with
such information for determining the legality of the Shares and Rights for
investment under the laws of such jurisdictions as you may reasonably request.
(j) Between the date of any Terms Agreement and the Settlement Date
with respect to such Terms Agreement, Sea Containers will not, without your
prior consent, offer or sell, or enter into any agreement to sell, any Class A
Shares or securities convertible into or exchangeable for Class A Shares (other
than the Shares and Rights which are to be sold pursuant to such Terms
Agreement), except as may otherwise be provided in any such Terms Agreement and
except for (i) Class A Shares issuable upon the exercise of employee stock
options granted by Sea Containers in the normal course of its business, and (ii)
Class A Shares issuable upon conversion of outstanding Class B Shares and any
outstanding preferred shares.
SECTION 4. Payment of Expenses. Sea Containers will pay all expenses
incident to the performance of its obligations under this Agreement, including
(i) the preparation and filing of the Registration Statement and all amendments
thereto, (ii) the preparation, issuance and delivery of the certificates
evidencing the Shares, (iii) the fees and disbursements of Sea Containers'
accountants and counsel, (iv) the qualification of the Shares under securities
laws in accordance with the provisions of Section 3(i), including filing fees
and the reasonable fees and disbursements of your counsel in connection with
such qualification and in connection with the preparation of any blue sky
survey, (v) any fees, taxes and charges imposed by Bermuda on the sale of the
Shares, (vii) the printing and delivery to you of copies of the Registration
Statement and all amendments thereto, and copies of the Prospectus and any
amendments or supplements
12
thereto, (viii) the reproduction and delivery of copies of the blue sky survey,
and (ix) the fees and expenses, if any, incurred with respect to any filing by
you with the National Association of Securities Dealers, Inc. in connection with
the offer and sale of the Shares.
SECTION 5. Conditions of Obligations. Your obligations to sell the
Shares as agent of Sea Containers and your obligations to purchase Shares
pursuant to any Terms Agreement will be subject to the accuracy of the
representations and warranties on the part of Sea Containers herein on the most
recent Effective Date, any applicable Representation Date and any applicable
Settlement Date, to the performance and observance by Sea Containers of all
covenants and agreements herein contained on its part to be performed and
observed, and to the following additional conditions precedent:
(a) The Registration Statement is effective under the 1933 Act, and no
stop order suspending the effectiveness of the Registration Statement or the
suspension of the qualification of the Shares for offering or sale in any
jurisdiction shall have been issued and not lifted, and no proceedings for such
purposes shall have been instituted and continue to be pending, or, to your
knowledge or the knowledge of Sea Containers, shall be threatened, and all
requests for additional information by the Commission shall have been complied
with to your reasonable satisfaction.
(b) At each Settlement Date with respect to any Terms Agreement, if
called for by such Terms Agreement, you shall have received:
(1) The opinion, dated as of such Settlement Date, of Xxxxxx
Xxxxxxx & Xxxxxxx LLP, United States counsel to Sea Containers, in form
reasonably satisfactory to you and your counsel, to the effect that:
(i) To such counsel's knowledge, except as described
in the Prospectus, there are no legal or governmental
proceedings pending or threatened in the United States to which
Sea Containers or any of its subsidiaries is a party or to
which any of its or their properties is subject and which are
required to be disclosed in the Registration Statement or the
Prospectus;
(ii) The execution and delivery by Sea Containers of
this Agreement and the Terms Agreement, the performance by Sea
Containers of, or its compliance with, its obligations under
this Agreement and the Terms Agreement, and the consummation of
the transactions contemplated herein and in the Registration
Statement, including the sale and delivery by Sea Containers of
the Shares, the Rights and the Preferred Shares issuable upon
the exercise of such Rights (assuming such Preferred Shares
were issued on the date of such opinion), do not and will not
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of Sea Containers or any of the
subsidiaries under, (A) any indenture, mortgage, deed of trust,
loan agreement or any other agreement or instrument to be
listed in an annex to such opinion, which shall include any
material indenture, mortgage, deed of trust, loan agreement or
any other agreement or instrument to which Sea Containers or
any of its
13
subsidiaries is a party, by which it is bound, or to which any
of its property or assets is subject, and which is (x)
described or referred to in the Prospectus, or incorporated by
reference or is filed as an exhibit to the Registration
Statement, (y) relating to a loan or other financing in an
aggregate amount exceeding $100,000,000, or (z) reasonably
requested by you, or (B) any United States federal or New York
statute, rule or regulation or any decree, judgment or order,
known to such counsel, of any United States federal or New York
court or governmental agency or body specifically applicable to
Sea Containers or any of its subsidiaries or any of their
properties, except for such breaches, violations, defaults,
liens, charges or encumbrances that would not have a Material
Adverse Effect;
(iii) No consent, approval, authorization or order of,
or registration or qualification or filing of or with, any
United States federal or New York governmental agency or, to
the best of such counsel's knowledge, any United States federal
or New York court is required for the performance by Sea
Containers of its obligations under this Agreement and the
Terms Agreement, or the consummation of the transactions
contemplated by this Agreement in connection with the valid
sale and delivery by Sea Containers of the Shares, the Rights
associated therewith and the Preferred Shares issuable upon the
exercise of such Rights, except, in the case of the Shares and
the Rights associated therewith, (a) such as have been obtained
or made under the 1933 Act, and (b) such as may be required
under state securities laws in connection with the purchase and
distribution of the Shares and Rights by you, and except in the
case of the Preferred Shares issuable upon the exercise of the
Rights associated with the Shares, (a) such as may be required
under the 1933 Act or the 1934 Act, and (b) such as may be
required under state securities laws in connection with the
issuance of the Preferred Shares upon the exercise of such
Rights;
(iv) The Registration Statement is effective under the
1933 Act and, to the best of such counsel's knowledge, no stop
order suspending the effectiveness of the Registration
Statement is in effect and no proceedings for that purpose have
been initiated or are pending or threatened;
(v) (I) The Registration Statement, the Prospectus and
each amendment or supplement thereto comply as to form in all
material respects with the requirements of the 1933 Act and the
rules of the Commission thereunder; (II) each document
incorporated by reference in the Registration Statement and
Prospectus, at the time such document was initially filed with
the Commission, complied as to form in all material respects
with the requirements of the 1934 Act and the rules of the
Commission thereunder; and (III) the descriptions in the
Registration Statement and the Prospectus of contracts and
other documents, of United States federal and New York
statutes, and of legal and governmental proceedings in the
United States, are accurate summaries in all material respects
and fairly present the information required to be given;
(vi) such counsel does not know of any contracts or
documents required to be described in the Registration
Statement or Prospectus, or required to
14
be filed as exhibits to the Registration Statement or
incorporated by reference in the Registration Statement or
Prospectus, which are not described or filed or incorporated by
reference as required, it being understood that such counsel
need not express any opinion as to the financial statements and
related notes and schedule or schedules or other financial
information and statistical data in the Registration Statement
or the Prospectus;
(vii) The Class A Shares (including the Shares) and
the Rights associated therewith are listed on the New York
Stock Exchange, Inc. and the Pacific Exchange, Inc.;
(viii) Sea Containers is eligible to use Form S-3 for
the registration under the 1933 Act of the offer and sale of
the Shares as described in the Prospectus, and the Registration
Statement meet the requirements set forth in Rule 415(a)(1)(x)
under the 1933 Act;
(ix) Sea Containers is not an "investment company" or
an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act of 1940, as
amended;
(x) Orient-Express Hotels Inc. has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware; and
(xi) Sea Containers' submission (pursuant to Section
16 of this Agreement) to the personal jurisdiction of the
courts of the State of New York in the County of New York or
the United States District Court for the Southern District of
New York with respect to any action or proceeding arising out
of, or based on, this Agreement is valid and enforceable
against Sea Containers, and Sea Containers' appointment of Sea
Containers America Inc. and Corporation Service Company as the
designees, appointees and agents upon whom process may be
served in any such action or proceeding is also valid and
enforceable against Sea Containers. The enforceability of such
submission and appointment is subject to, and may be limited
by, (i) bankruptcy, insolvency, liquidation, receivership,
moratorium, reorganization, fraudulent conveyance or other
similar laws relating to or affecting the enforcement of the
rights of creditors, (ii) general principles of equity, and
(iii) the discretion of United States federal or New York State
courts with respect to venue, as provided in 28 U.S.C. ss.
1404(a) and New York CPLR ss. 510, respectively.
Xxxxxx Xxxxxxx & Xxxxxxx LLP may limit such opinion to the laws
of the United States of America and the State of New York and the
General Corporation Law of Delaware and may rely as to factual matters
on certificates obtained from officers of Sea Containers and public
officials. The opinion of Xxxxxx Xxxxxxx & Xxxxxxx LLP will also state
that, while such counsel have not made any independent investigation of,
are not passing upon and do not assume responsibility for, the accuracy
or completeness of the statements contained in the Registration
Statement or the Prospectus (other than as
15
indicated in clause (III) of paragraph (v) above), on the basis of
discussions regarding the business and affairs of Sea Containers and
such counsel's familiarity with certain matters relating to such
business and affairs as a result of having served as United States
counsel for Sea Containers in connection with certain previous
transactions, nothing has come to their attention that would lead them
to believe that the Registration Statement (other than the financial
statements and notes and other financial and statistical data included
in the Registration Statement and Prospectus, as to which such counsel
expresses no view), at the most recent Effective Date (or, if, after
such Effective Date, Sea Containers files any documents pursuant to
Section 13(a), 13(c) or 15(d) of the 1934 Act which are incorporated by
reference into the Registration Statement, at the time of the most
recent such filing), contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the
Prospectus (other than the financial statements and notes and other
financial and statistical data included in the Registration Statement
and Prospectus, as to which such counsel expresses no view), on the most
recent Effective Date, or on the appropriate Settlement Date or
Representation Date, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
(2) The opinion, dated as of such Settlement Date, of Xxxxxxx
Xxxxxxxx Xxxxxx, Bermuda counsel to Sea Containers, in form reasonably
satisfactory to you and your counsel, to the effect that:
(i) Each of Sea Containers, Orient-Express Hotels
Ltd., Sea Containers SPC Ltd. and Contender 2 Ltd. is an
exempted company duly incorporated with limited liability,
validly existing and in good standing under the laws of
Bermuda;
(ii) Sea Containers has all requisite corporate power
and authority under its Constitutional Documents (as defined)
to own, lease, manage and operate its properties and to
conduct its business as described in the Registration
Statement and the Prospectus and to enter into and perform its
obligations under this Agreement and the Terms Agreement;
(iii) This Agreement and the Terms Agreement have
been duly authorized, executed and delivered by Sea Containers
and constitute valid and binding obligations of Sea Containers
enforceable against Sea Containers in accordance with their
terms;
(iv) The issued and outstanding Class A Shares have
been duly authorized and validly issued and are fully paid and
non-assessable;
(v) None of the outstanding Class A Shares were
issued in violation of any pre-emptive or other similar rights
of any security holder of Sea Containers pursuant to the
Constitutional Documents (as defined);
16
(vi) The Shares have been duly authorized for sale
and delivery to you pursuant to the terms of this Agreement
and the Terms Agreement, and when sold and delivered by Sea
Containers pursuant to the terms of this Agreement and the
Terms Agreement, against payment of the consideration set
forth in the Terms Agreement, will be validly issued, fully
paid and non-assessable, and no holder of the Shares is or
will be subject to personal liability with respect to the
debts or obligations of Sea Containers solely by reason of
being such a holder.
(vii) The Rights Agreement has been duly authorized,
executed and delivered by Sea Containers, the Rights have been
duly authorized by Sea Containers, the Rights attached to the
Shares are validly issued, and the Preferred Shares issuable
upon the exercise of the Rights have been duly authorized by
Sea Containers and validly reserved for issuance upon the
exercise of the Rights and, when issued upon such exercise in
accordance with the terms of the Rights Agreement, will be
validly issued, fully paid and non-assessable;
(viii) Based solely on the results of the Litigation
Search (as defined), there is not pending any action, suit,
proceeding, inquiry or investigation in Bermuda, to which Sea
Containers, Orient-Express Hotels Ltd., Sea Containers SPC
Ltd. or Contender 2 Ltd. is a party or to which the property
of Sea Containers, Orient-Express Hotels Ltd., Sea Containers
SPC Ltd. or Contender 2 Ltd. is subject, before or brought by
any court or governmental agency or body in Bermuda, which
could reasonably be expected to result in a Material Adverse
Effect, or which could reasonably be expected to materially
and adversely affect the properties or assets thereof or the
consummation of the transactions contemplated by this
Agreement or the performance by Sea Containers of its
obligations hereunder.
(ix) The information in the Prospectus under the
captions "Risk Factors - Other Risk Factors - We cannot assure
you that a judgment of a United States court for liabilities
under U.S. securities laws would be enforceable in Bermuda, or
that an original action can be brought in Bermuda against Sea
Containers for liabilities under U.S. securities laws," "Risk
Factors - Other Risks - Sea Containers' directors and officers
may control the outcome of most matters submitted to a vote
and of its shareholders," "Risk Factors - Other Risks -
Provisions in Sea Containers' charter documents may discourage
potential acquisitions of Sea Containers, even those which the
holders of a majority of its class A common shares might
favor," and "Description of Common Shares," to the extent such
information constitutes matters of Bermuda law, is accurate in
all material respects.
(x) The execution and delivery by Sea Containers of
this Agreement and the Terms Agreement, the performance by Sea
Containers of, or its compliance with, its obligations under
this Agreement and the Terms Agreement, and the consummation
of the transactions contemplated herein and the Terms
Agreement or in the Registration Statement, including the sale
and delivery by Sea Containers of the Shares, the Rights and
the Preferred Shares issuable upon
17
the exercise of such Rights (assuming such Preferred Shares
were issued on the date of such opinion), do not and will not
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon
any property or assets of Sea Containers under (A) any
indenture, mortgage, deed of trust, loan agreement or any
other agreement or instrument which is described or referred
to in the Prospectus, or is filed or incorporated by reference
as an exhibit to the Registration Statement, and to which Sea
Containers, Orient-Express Hotels Ltd., Sea Containers SPC
Ltd. or Contender 2 Ltd. is a party or by which they are bound
or to which any of their property or assets is subject, except
for such breaches, violations, defaults, liens, charges or
encumbrances, if any, that would not have a Material Adverse
Effect), (B) any requirement of any law or regulation of
Bermuda, and (C) the Constitutional Documents;
(xi) No consent, approval, authorization or order of,
or registration or qualification or filing of or with, any
Bermuda governmental agency or body or, to the best of such
counsel's knowledge, any Bermuda court is required for the
performance by Sea Containers of its obligations under this
Agreement and the Terms Agreement, including the sale and
delivery by Sea Containers of the Shares, the Rights
associated therewith and the Preferred Shares issuable upon
the exercise of such Rights, except such as have been obtained
from the Bermuda Monetary Authority; and
(xii) The choice of the laws of the State of New York
as the proper law to govern this Agreement and the Terms
Agreement is a valid choice of law under Bermuda law, and such
choice of law would be recognized, upheld and applied by the
courts of Bermuda as the proper law of this Agreement and the
Terms Agreement in proceedings brought before them in relation
to this Agreement and the Terms Agreement, provided that (1)
the point is specifically pleaded; (2) such choice of law is
valid and binding under the laws of the state of New York; and
(3) recognition would not be contrary to public policy as that
term is understood under Bermuda law.
(xiii) There are no Bermuda capital, stamp or other
issuance taxes or duties payable in Bermuda in connection with
the issuance, sale and delivery of the Shares to you, or the
consummation of any of the other transactions contemplated in
this Agreement and the Terms Agreement.
(xiv) The irrevocable and unconditional submission by
Sea Containers to the jurisdiction of any state or federal
court in New York under this Agreement is not contrary to
Bermuda law and would be recognised by the courts of Bermuda
as a legal, valid and binding submission, provided that such
submission is accepted by such courts and is legal, valid and
binding under the laws of the State of New York.
(xv) A final and conclusive judgment of a competent
foreign court against Sea Containers based on this Agreement,
and the transactions
18
contemplated thereby (other than a court of jurisdiction to
which the Judgment (Reciprocal Enforcement) Xxx 0000 applies,
and it does not apply to the courts of New York) under which a
sum of money is payable (not being a sum payable in respect of
taxes or other charges of a like nature, in respect of a fine
or other penalty, or in respect of multiple damages as defined
in The Protection of Trading Interests Act 1981) may be the
subject of enforcement proceedings in the Supreme Court of
Bermuda under the common law doctrine of obligation by action
on the debt evidenced by the judgment of such competent
foreign court. A final opinion as to the availability of this
remedy should be sought when the facts surrounding the foreign
court's judgment are known, but, on general principles, one
would expect such proceedings to be successful provided that:
(a) the court which gave the judgment was
competent to hear the action in accordance with
private international law principles as applied in
Bermuda; and
(b) the judgment is not contrary to public
policy in Bermuda, has not been obtained by fraud or
in proceedings contrary to natural justice and is not
based on an error in Bermuda law.
Enforcement of such a judgment against the assets in Bermuda
may involve the conversion of the judgment debt into Bermuda
dollars, but the Bermuda Monetary Authority's policy is to
give the consents necessary to enable recovery in the currency
of the obligation.
Such counsel has no reason to believe that as of the date of the opinion the
enforcement of a foreign judgment relating to the indemnification and
contribution provisions set forth in Sections 7 and 8 of this Agreement would
contravene Bermuda public policy or laws.
(3) The opinion, dated as of such Settlement Date, of Xxxxx X.
Xxxxxxxxxxxx, Vice President, General Counsel and Secretary of Sea
Containers, in form reasonably satisfactory to you and your counsel, to
the effect that:
(i) Great North Eastern Railway Ltd., Sea Containers
U.K. Ltd. and Sea Containers British Isles Ltd. are companies
duly incorporated, validly existing and in good standing under
the laws of England.
(ii) The issued shares of capital stock of each
significant subsidiary of Sea Containers (as defined in
Regulation S-X of the Securities and Exchange Commission) have
been duly authorized and validly issued, are fully paid and
non-assessable and except as otherwise disclosed in the
Prospectus, are owned beneficially by Sea Containers, either
directly or through wholly-owned subsidiaries of Sea
Containers, free and clear, to the best of such counsel's
knowledge, of any pledge, lien, encumbrance, security
interest, restriction on voting or transfer, preemptive rights
or other defect or claim of any third party, except that (a)
the shares of Silja Oy Ab and the preference shares of Sea
Containers SPC Ltd. are pledged as security for bank loans to
Sea Containers and
19
its subsidiaries, (b) the class A shares of Sea Containers
SPC Ltd. have limited voting rights and are not owned by Sea
Containers or any of its subsidiaries, and (c) the shares of
Great North Eastern Railway Ltd. have transfer
restrictions imposed by the U.K. government.
(iii) The execution and delivery by Sea Containers of
this Agreement, the performance by Sea Containers of, or its
compliance with, its obligations under this Agreement and the
consummation of the transactions contemplated in this
Agreement or in the Registration Statement, including the
offering, issuance or sale by Sea Containers of the Shares,
the Rights and the Preferred Shares issuable upon the exercise
of such Rights (assuming such Preferred Shares were issued on
the date of such opinion) do not and will not result in a
breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any
property or assets of Sea Containers or any of its
subsidiaries under, (A) any indenture, mortgage, deed of
trust, loan agreement or any other agreement or instrument
which is described or referred to in the Prospectus, or is
filed or incorporated by reference as an exhibit to the
Registration Statement and to which Sea Containers or any of
its subsidiaries is a party or by which they are bound or to
which any of their property or assets is subject, or (B) any
provision of the Memorandum of Association, Certificate of
Incorporation, By-laws or other constituent documents of Sea
Containers or, to the best of such counsel's knowledge, any
significant subsidiary of Sea Containers or (C) any applicable
law, statute, rule, regulation, judgment, order, writ or
decree, known to such counsel, of any government, government
instrumentality or court in the United Kingdom having
jurisdiction over Sea Containers or any of its subsidiaries or
any of their assets, properties or operations; and
(iv) To the best of such counsel's knowledge, there
are no legal or governmental proceedings in England pending or
threatened to which Sea Containers or any of its subsidiaries
is a party or to which any of its or their property is
subject, except as otherwise disclosed in the Prospectus and
except for such proceedings that, individually or in the
aggregate, would not have a Material Adverse Effect.
Such counsel may limit such opinion to the laws of the United Kingdom. The
opinion of such counsel will also state as follows:
"In my capacity as the Vice President, General Counsel of Secretary of
Sea Containers, I participated in the preparation of the Registration
Statement and the Prospectus. In the course of those preparations, I
have participated in conferences with other officers and other
representatives of Sea Containers, representatives of the independent
public accountants for Sea Containers, counsel to Sea Containers and
your representatives, and I am familiar with the statistical data
contained in the Registration Statement and the Prospectus. Although I
have not independently verified the accuracy, completeness or fairness
of that statistical data, I advise you that no facts have come to my
attention that cause me to believe (i) that the Registration Statement,
at the time they became effective,
20
included any statistical data which constituted or contained an untrue
statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements in
the Registration Statement not misleading, or (ii) that the Prospectus,
at the time it was issued and on the date hereof, included or includes
any statistical data which constituted or contained, or constitutes or
contains, an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements in the
Prospectus, in the light of the circumstances under which they were
made, not misleading. Nothing set forth herein is intended to express
any view with respect to the financial statements of Sea Containers, or
any related notes or schedules."
(4) The opinion of your counsel to the effect that the
opinions delivered pursuant to subsections 5(b)(1), 5(b)(2) and 5(b)(3)
appear on their face to be appropriately responsive to the requirements
of this Agreement except, specifying the same, to the extent waived by
you, and with respect to the Shares, this Agreement, the Registration
Statement, the Prospectus, the documents incorporated by reference and
such other related matters as you may require. In giving such opinion,
such counsel may rely, as to all matters governed by the laws of
jurisdictions other than the laws of the State of New York and the
federal laws of the United States, upon the opinions of counsel
satisfactory to you, including the opinion of Xxxxxxx Xxxxxxxx Xxxxxx
as to matters of Bermuda law. Such counsel may also state that, insofar
as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of Sea
Containers and certificates of public officials.
(c) On each Settlement Date there will not have been, since the date of
the applicable Terms Agreement, and on each Effective Date, there will not have
been since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any Material Adverse Change, whether
or not arising in the ordinary course of business, and on each Effective Date,
and on each Settlement Date if called for by the applicable Terms Agreement, you
shall have received a certificate of Sea Containers' president or any vice
president, dated as of the Effective Date or such Settlement Date, to the effect
that (i) there has been no such Material Adverse Change, (ii) the other
representations and warranties of Sea Containers contained in Section 1 of this
Agreement are true and correct with the same force and effect as though
expressly made at and as of the time of such certificate, (iii) Sea Containers
has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied under this Agreement and any applicable Terms Agreement
at or prior to the date of such certificate, and (iv) no stop order suspending
the effectiveness of the Registration Statement or the qualification of the
Shares for offer or sale in any jurisdiction has been issued, and no proceedings
for that propose have been initiated or are pending or, to such person's
knowledge, are threatened.
(d) On the date of any Terms Agreement, you will have received from
Deloitte & Touche LLP a letter, dated as of such date, in form and substance
reasonably satisfactory to you, to the effect that:
(1) They are an independent registered public accounting firm
with respect to Sea Containers and its subsidiaries within the meaning
of the 1933 Act and the rules of the Commission;
21
(2) In their opinion, the consolidated financial statements
and related financial statement schedules audited by them and included
in or incorporated by reference into the Registration Statement and
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act, the 1934 Act and
the rules of the Commission thereunder, as applicable;
(3) On the basis of limited procedures, not constituting an
audit in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of Sea Containers and its subsidiaries,
inspection of the minute books of Sea Containers, inquiries of
officials of Sea Containers and its subsidiaries responsible for
financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
(i) as of a specified date not more than five days
prior to the date of delivery of such letter, there were any
changes in the capital shares, long-term debt or shareholders'
equity, or any decrease in total assets, in each case as
compared with amounts shown in the latest balance sheet
included or incorporated by reference in the Prospectus,
except in each case for changes, increases or decreases which
the Prospectus discloses have occurred or may occur or which
are described in such letter;
(ii) for the period from the date of the latest
balance sheet included or incorporated by reference into the
Prospectus to the specified date referred to in clause (i)
above, there were any material decreases in consolidated
revenues, earnings from operations before net financing costs
or in the total or per share amounts of net income of Sea
Containers and its subsidiaries, in each case as compared with
the corresponding period of the preceding year, except in each
case for decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter;
(iii) the unaudited financial statements, if any,
included or incorporated in the Registration Statement and the
Prospectus do not comply in form in all material respects with
the applicable accounting requirements of the 1933 Act or the
1934 Act, as the case may be, and the rules of the Commission
thereunder, or are not in conformity with generally accepted
accounting principles applied on a basis substantially
consistent with that of the audited financial statements
included or incorporated in the Registration Statement and the
Prospectus; and
(iv) the unaudited financial information, if any,
included or incorporated in the Registration Statement and the
Prospectus does not agree with the amounts set forth in the
unaudited consolidated financial statements from which it was
derived or was not determined on a basis substantially
consistent with that of the audited financial statements
included or incorporated in the Registration Statement and the
Prospectus; and
22
(4) Certain information set forth in dollar amounts (or
ratios, per share amounts or percentages derived from such dollar
amounts) specified by you contained in the Registration Statement, in
each case to the extent that such dollar amounts, ratios, per share
amounts and percentages have been obtained from accounting records
which are subject to the internal controls of Sea Containers'
accounting system or have been derived directly from such accounting
records by analysis or computation, is in agreement with such records
or computations made therefrom.
(e) On each Settlement Date, if called for by the applicable Terms
Agreement, you will have received from Deloitte & Touche LLP a letter, dated as
of such Settlement Date, to the effect that they reaffirm the statements made in
the letter furnished pursuant to paragraph (d) of this Section 5, except that
the specified date referred to will be a date not more than five days prior to
such Settlement Date and, to the extent that any additional documents are
incorporated by reference in the Registration Statement, such letter will refer
to the most recent consolidated financial statements, amounts, percentages and
financial information contained therein.
(f) On the date of this Agreement and on each Settlement Date, your
counsel shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the sale of the
Shares as herein contemplated and related proceedings, or in order to evidence
the accuracy and completeness of any of the representations and warranties, or
the fulfillment of any of the conditions, herein contained; and all proceedings
taken by Sea Containers in connection with the sale of the Shares as herein
contemplated shall be reasonably satisfactory in form and substance to you and
your counsel.
(g) You shall have received evidence reasonably satisfactory to you
that the appointment of Corporation Service Company, as agent for service of
process for Sea Containers pursuant to Section 16 hereof has been accepted by
such agent.
(h) In the event that Sea Containers grants you in a Terms Agreement an
option to purchase Shares to cover overallotments ("Option Shares") and you
exercise such option to purchase all or any portion of the Option Shares, the
representations and warranties of Sea Containers contained herein and the
statements in such Terms Agreement or any certificates furnished by Sea
Containers hereunder will be true and correct as of each Settlement Date for
such Option Shares ("Option Settlement Date") and, at the relevant Option
Settlement Date, you will have received:
(1) a certificate, dated such Option Settlement Date, of the
president or any vice president of Sea Containers confirming that the
certificate delivered at the Settlement Date pursuant to paragraph 5(c)
hereof remains true and correct as of such Option Settlement Date;
(2) the opinions of Xxxxxx Xxxxxxx & Xxxxxxx LLP, Xxxxxxx
Xxxxxxxx Xxxxxx, and Xxxxx X. Xxxxxxxxxxxx as General Counsel to Sea
Containers, each in form reasonably satisfactory to your counsel, dated
such Option Settlement Date, relating to the Option Shares to be
purchased on such Option Settlement Date and otherwise to the same
effect as the opinions delivered pursuant to subsections 5(b)(1), 5(b)
(2) and 5(b)(3) hereof;
23
(3) the opinion of your counsel, dated such Option Settlement
Date, relating to the Option Shares to be purchased on such Option
Settlement Date and otherwise to the same effect as the opinion
delivered pursuant to subsection 5(b)(4) hereof; and
(4) a letter from Deloitte & Touche LLP, in form and
substance reasonably satisfactory to you and dated such Option
Settlement Date, substantially in the same form and substance as the
letter furnished to you pursuant to paragraph 5(e) hereof, except that
the specified date in the letter furnished to you pursuant to this
paragraph (h) shall be a date not more than five days prior to such
Option Settlement Date.
Your obligation to purchase Shares pursuant to any Terms Agreement will
be subject to the further condition that there shall not have come to your
attention any facts that would cause you to believe that the Prospectus, at the
time it was required to be delivered to a purchaser of the Shares, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the circumstances
existing at such time, not misleading.
If any condition specified in this Section 5 will not have been
fulfilled, this Agreement and any Terms Agreement may be terminated by you by
notice to Sea Containers at any time at or prior to the applicable Settlement
Date, and such termination shall be without liability of any party to any other
party except that the covenant set forth in paragraph 3(g) hereof, the
provisions of Section 4 hereof, the indemnity provisions of Section 7 hereof,
the contribution provisions of Section 8 hereof and the provisions of Sections
9, 10 and 13 hereof will remain in effect. For purposes of a Settlement Date
with respect to any Terms Agreement, the term "Prospectus" will refer to the
Prospectus last filed by Sea Containers under Rule 424(b) under the 1933 Act
prior to the execution of the applicable Terms Agreement.
SECTION 6. Additional Covenants of Sea Containers. Sea Containers
covenants and agrees as follows:
(a) Each execution and delivery of a Terms Agreement by Sea Containers
will be deemed to be (i) an affirmation that the representations and warranties
of Sea Containers contained in this Agreement and such Terms Agreement and in
any certificate theretofore delivered to you pursuant hereto are true and
correct at the time of such execution and delivery, and (ii) an undertaking that
such representations and warranties will be true and correct at the applicable
Settlement Date, as though made at and as of such Settlement Date (and it is
understood that such representations and warranties shall relate to the
Registration Statement and the Prospectus as amended and supplemented to each
such time).
(b) Each time that Sea Containers (1) amends or supplements the
Registration Statement or the Prospectus by filing with the Commission an annual
report pursuant to Section 13 or 15(d) of the 1934 Act, or (2) otherwise amends
the Registration Statement or the Prospectus (other than by providing solely for
a change in the plan of distribution or sales price or similar changes, and
other than by filing with the Commission any document (other than an annual
report) incorporated by reference into the Prospectus), Sea Containers will
furnish or cause to be furnished to you forthwith (i) a certificate, in form
reasonably satisfactory to you, to
24
the effect that the statements contained in the certificate referred to in
paragraph 5(c) hereof which was last furnished to you are true and correct at
the time of filing such amendment or supplement, as the case may be, as though
made at and as of such time (except that such statements will be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such time) or (ii) in lieu of such certificate a certificate of
the same tenor as the certificate referred to in paragraph 5(c), modified as
necessary to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such certificate.
(c) Each time that Sea Containers (1) amends or supplements the
Registration Statement or the Prospectus by filing with the Commission an annual
report pursuant to Section 13 or 15(d) of the 1934 Act, or (2) otherwise amends
the Registration Statement or the Prospectus (other than an amendment or
supplement providing solely for a change in the plan of distribution or sales
price or similar changes, and other than by filing with the Commission any
document (other than an annual report) incorporated by reference into the
Prospectus), Sea Containers will cause to be furnished forthwith to you and your
counsel (i) a written opinion of Xxxxxx Xxxxxxx & Xxxxxxx LLP or other United
States counsel reasonably satisfactory to you, (ii) a written opinion of Xxxxxxx
Xxxxxxxx Xxxxxx or other Bermuda counsel reasonably satisfactory to you, and
(iii) the written opinion of Sea Containers' General Counsel or other counsel
reasonably satisfactory to you, in each case dated the date of delivery of such
opinion, in form reasonably satisfactory to you, of the same tenor as the
opinions to be delivered by such counsel pursuant to subsections 5(b)(1),
5(b)(2) and 5(b)(3) hereof, respectively, but modified, as necessary, to relate
to the Registration Statement and the Prospectus as amended and supplemented to
the time of delivery of such opinions or, in lieu of such opinions, counsel last
furnishing such an opinion to you may furnish you with a letter to the effect
that you may rely on such last opinion to the same extent as though it was dated
the date of such letter authorizing reliance (except that statements in such
last opinion will, subject to the last sentence of Section 5 hereof, be deemed
to relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such letter authorizing reliance).
(d) Each time that Sea Containers (1) amends or supplements the
Registration Statement or the Prospectus by filing with the Commission an annual
or quarterly report pursuant to Section 13 or 15(d) of the 1934 Act, or (2)
otherwise amends the Registration Statement or the Prospectus (other than an
amendment or supplement providing solely for a change in the plan of
distribution or sales price or similar changes, and other than by filing with
the Commission any document (other than an annual report) incorporated by
reference into the Prospectus), Sea Containers shall cause Deloitte & Touche LLP
forthwith to furnish you a letter, dated the date of filing of such annual
report or other amendment or supplement with the Commission, in form
satisfactory to you, of the same tenor as the portions of the letter referred to
in clauses (1) and (2) of paragraph 5(d) hereof but modified to relate to the
Registration Statement and Prospectus, as amended and supplemented to the date
of such letter, and of the same general tenor as the portions of the letter
referred to in clauses (3) and (4) of said paragraph 5(d) with such changes as
may be necessary to reflect changes in the financial statements and other
information derived from the accounting records of Sea Containers; provided that
if the Registration Statement or the Prospectus is amended or supplemented
solely to include financial information as of and for a fiscal quarter, Deloitte
& Touche LLP may limit the scope of such letter to the unaudited financial
statements included in such amendment or supplement unless any other information
25
included therein of an accounting, financial or statistical nature is of such a
nature that, in your reasonable judgment, such letter should cover such other
information.
(e) Each time that Sea Containers amends or supplements the
Registration Statement or the Prospectus by filing with the Commission a
quarterly report pursuant to Section 13 or 15(d) of the 1934 Act, Sea Containers
will cause to be furnished forthwith to you and your counsel a written Rule
10b-5 certification of Xxxxxx Xxxxxxx & Xxxxxxx LLP or other United States
counsel reasonably satisfactory to you, dated the date of delivery of such
opinion, substantially in the form set forth in the last paragraph of Section
5(b)(1) of this Agreement but modified, as necessary, to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certification.
SECTION 7. Indemnification.
(a) Sea Containers agrees to indemnify and hold harmless you and each
person, if any, who controls you within the meaning of Section 15 of the 1933
Act as follows:
(1) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), or the omission or
alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
(2) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened, or of any
claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission if such settlement is
effected with the written consent of Sea Containers;
(3) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by you),
reasonably incurred in investigating, preparing or defending against any
litigation, or investigation or proceeding by any governmental agency or
body, commenced or threatened and to which you are a party, or any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, to the extent that any such
expense is not paid under subsection (1) or (2) above; and
(4) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any failure by Sea
Containers to comply with its obligation to deliver Shares to any
purchaser hereunder or pursuant to any Terms Agreement (such indemnity
for failure to deliver Shares to be provided to the same extent that
indemnity is provided in subsections (1)-(3) above with respect to
untrue statements and omissions);
26
provided, however, that (A) this indemnity agreement does not apply to
any loss, liability, claim, damage or expense to the extent arising out
of an untrue statement or omission or alleged untrue statement or
omission made in reliance upon and in conformity with written
information furnished to Sea Containers by you expressly for use in the
Registration Statement (or any amendment thereto) or any preliminary
Prospectus supplement or the Prospectus (or any amendment or supplement
thereto); and (B) this indemnity, as to any preliminary Prospectus
supplement, will not inure to your benefit (or any person controlling
you) on account of any loss, claim, damage, liability or litigation
arising from the sale of Shares to any person by you if you failed to
send or give a copy of any subsequent Prospectus or Prospectus
supplement to such person within the time required by the 1933 Act, and
the untrue statement or alleged untrue statement or omission or alleged
omission of a material fact in such preliminary Prospectus supplement
was corrected in the subsequent Prospectus or Prospectus supplement,
unless such failure resulted from noncompliance by Sea Containers with
paragraph 3(f) hereof.
(b) You agree to indemnify and hold harmless Sea Containers, its
directors, each of its officers who signed the Registration Statement, and each
person, if any, who controls Sea Containers within the meaning of Section 15 of
the 1933 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsections (a)(1)-(3) of this Section
7, but only with respect to untrue statements or omissions, or alleged untrue
statements or omissions, made in the Registration Statement (or any amendment
thereto) or the Prospectus (or any amendment or supplement thereto) in reliance
upon and in conformity with written information furnished to Sea Containers by
you expressly for use in the Registration Statement (or any amendment thereto)
or the Prospectus (or any amendment or supplement thereto), as described in
paragraph (a) above.
(c) Promptly after receipt by an indemnified party under this Section 7
of notice of any claim or the commencement of any action, the indemnified party
must, if a claim in respect thereof is to be made against the indemnifying party
under this Section 7, notify the indemnifying party in writing of the claim or
the commencement of that action; provided that the failure to notify the
indemnifying party will not relieve it from any liability which it may have
under this Section 7 except to the extent it has been materially prejudiced by
such failure; and provided further that the failure to notify the indemnifying
party will not relieve it from any liability which it may have to an indemnified
party otherwise than under this Section 7. If any such claim or action is
brought against an indemnified party and it notifies the indemnifying party
thereof, the indemnifying party will be entitled to participate therein and, to
the extent that it wishes, to assume the defense thereof with counsel reasonably
satisfactory to the indemnified party. After notice from the indemnifying party
to the indemnified party of its election to assume the defense of such claim or
action, the indemnifying party will not be liable to the indemnified party under
this Section 7 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; provided that the indemnified party will have the right
to employ one counsel in each jurisdiction to represent jointly the indemnified
party and its respective controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the
indemnified party under this Section 7 if, in the reasonable judgment of the
indemnified party, it is advisable for the indemnified party and controlling
persons to be jointly represented by separate counsel, and in that event the
fees and expenses of such separate counsel
27
will be paid by the indemnifying party. An indemnifying party will not,
without the prior written consent of the indemnified parties (which consent
will not be unreasonably withheld), settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding. An indemnified
party will not, without the prior written consent of the indemnifying party
(which consent shall not be unreasonably withheld), settle or compromise any
such action, but if settled with the consent of the indemnifying party or if
there be a final judgment of the plaintiff in any such action, the indemnifying
party agrees to indemnify and hold harmless any indemnified party from and
against any loss or liability by reason of such settlement or judgment.
SECTION 8. Contribution. If the indemnification provided for in Section
7 is for any reason unavailable to or insufficient to hold harmless an
indemnified party under Section 7 in respect to any loss, liability, claim,
damage or expense, or any action in respect thereof, referred to therein, then
each indemnifying party will, in lieu of indemnifying such indemnified party,
contribute to the amount paid or payable by such indemnified party as a result
of such loss, liability, claim, damage or expense, or action in respect thereof,
(i) in such proportion as shall be appropriate to reflect the relative benefits
received by Sea Containers and you from the offering of the Shares or (ii) if
the allocation provided by clause (i) above is not permitted by applicable law,
in such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of Sea Containers
and you with respect to the statements or omissions which resulted in such loss,
liability, claim, damage or expense, or action in respect thereof, as well as
any other relevant equitable considerations. The relative benefits received by
Sea Containers and you with respect to such offering will be deemed to be in the
same proportion as the total net proceeds from the offering of the Shares
purchased under this Agreement (before deducting expenses) received by Sea
Containers, on the one hand, and the total brokerage and underwriting discounts
and commissions received by you with respect to the Shares purchased under this
Agreement, on the other hand, bear to the total gross proceeds from the offering
of the Shares under this Agreement. The relative fault will be determined by
reference to whether the untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by Sea Containers or you, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. Sea Containers and you agree that it would not be just
and equitable if contributions pursuant to this Section 8 were to be determined
by pro rata allocation or by any other method of allocation which does not take
into account the equitable considerations referred to herein. The amount paid or
payable by an indemnified party as a result of the loss, liability, claim,
damage or expense or action in respect thereof, referred to above in this
Section 8 will be deemed to include, for purposes of this Section 8, any legal
or other expenses reasonably incurred by such indemnified party in connection
with investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, you will not be required to contribute any amount
in excess of the amount by which the total price at which the Shares distributed
by you hereunder was offered to the public exceeds the amount of any damages
which you have otherwise paid or become liable to pay by reason of any untrue or
alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent
28
misrepresentation (within the meaning of section 11(f) of the 0000
Xxx) will be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
SECTION 9. Representations and Indemnities to Survive Delivery. Except
as otherwise specified herein, the respective indemnities, agreements,
representations, warranties and other statements of Sea Containers, its officers
or subsidiaries, and you set forth in or made pursuant to this Agreement or any
Terms Agreement entered into in connection herewith will remain in full force
and effect, regardless of any investigation, or statement as to the results
thereof, made by or on behalf of you or Sea Containers or any of your or its
officers, directors or controlling persons and will survive delivery of and
payment for the Shares, from time to time.
SECTION 10. Your Status as Agent. In selling the Shares for Sea
Containers, you are acting solely as agent for Sea Containers and not as
principal, except as otherwise provided in Section 2(b) hereof. When acting
solely as agent, you will make reasonable efforts to assist Sea Containers in
obtaining performance by each purchaser whose offer to purchase Shares from Sea
Containers has been accepted on behalf of Sea Containers, but you will not have
any liability to Sea Containers if any such purchase is not consummated for any
reason.
SECTION 11. Termination. This Agreement may be terminated for any
reason at any time by any party hereto by giving five days' written notice of
such termination to the other parties hereto. You may also terminate this
Agreement and any existing Terms Agreement immediately (i) if there has been,
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, any Material Adverse Change, whether or not
arising in the ordinary course of business, or (ii) if there has occurred any
material adverse change in the financial markets or any outbreak or escalation
of hostilities or other calamity or crisis the effect of which on the financial
markets of the United States is such as to make it, in your reasonable judgment,
impracticable or inadvisable to market the Shares, or (iii) if trading in any
securities of Sea Containers has been suspended by the Commission or a national
securities exchange, or if trading generally on either the New York Stock
Exchange or the Nasdaq Stock Market has been suspended, or minimum or maximum
prices for trading have been fixed, or maximum ranges for prices for securities
have been required, by either of said exchanges or by order of the Commission or
any other governmental authority, or if a banking moratorium has been declared
by either Federal, New York or United Kingdom authorities, or (iv) a material
disruption has occurred in commercial banking or securities settlement or
clearance services in the United States, or (v) a stop order suspending the
effectiveness of the Registration Statement or an order preventing or suspending
the use of the Prospectus shall have been entered and shall not have been lifted
or removed, or (vi) any event shall have occurred as a result of which the
Prospectus would include any untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein in the
light of the circumstances under which they are made not misleading, and Sea
Containers will not have complied with Section 3(b) of this Agreement. In the
event of any such termination, a party hereto will not have any liability to the
other parties hereto (including any obligation of yours to complete a purchase
of Shares as principal or to complete a sale as agent hereunder), except that
(i) you will be entitled to any commissions earned in accordance with the third
paragraph of paragraph 2(a) hereof, (ii) if at the time of termination, (A) you
own any of the Shares with the intention of reselling them or (B) an offer to
purchase any of the Shares has been accepted on behalf of Sea Containers but
the time of delivery to the purchaser or its agent of the Shares relating
thereto has not occurred,
29
the covenants set forth in Sections 3 and 6 hereof and the conditions in Section
5 hereof will remain in effect until such Shares are so resold or delivered, as
the case may be, and (iii) the covenant set forth in paragraph 3(g) hereof, the
provisions of Section 4 hereof, the indemnity provisions of Section 7 hereof,
the contribution provisions of Section 8 hereof and the provisions of Sections
9, 10 and 13 hereof will remain in effect.
SECTION 12. Notices. All notices and other communications hereunder
will be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to you shall be
directed to General Counsel, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
attention General Counsel (fax (000) 000-0000). Notices to Sea Containers shall
be directed to it at 00 Xxxxxxxx Xxxxxx, Xxxxxxxx, XX 00, Xxxxxxx, attention of
the Secretary (fax (000) 000-0000), with copies to Sea Containers America Inc.
at (until January 1, 2005 or thereabouts) 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, attention of Xxxx X. Xxxxxx, Xx., Esq. (fax (000) 000-0000), and
thereafter to Sea Containers America Inc., at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx
Xxxx, Xxx Xxxx, 00000, attention of Xxxx X. Xxxxxx, Xx., Esq. (fax (212)
000-0000); to Sea Containers Services Ltd., Sea Containers House, 00 Xxxxx
Xxxxxx, Xxxxxx XX 0 0XX, Xxxxxxx, attention of Xxxxx X. Xxxxxxxxxxxx, Esq. (fax
000-00-000-000-0000); and to Xxxxxxx Xxxxx-Xxxx, Esq., Xxxxxx Xxxxxxx & Xxxxxxx
LLP, 0 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax (000) 000-0000).
SECTION 13. Parties. This Agreement and any Terms Agreement will inure
to the benefit of and be binding upon you and Sea Containers and your and its
respective successors. Nothing expressed or mentioned in this Agreement or any
Terms Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto and their respective successors and
the controlling persons and officers and directors referred to in Section 7
hereof and their heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any Terms Agreement, or
any provision herein or therein contained. This Agreement and any Terms
Agreement and all conditions and provisions hereof and thereof are intended to
be for the sole and exclusive benefit of the parties hereto and their respective
successors and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Shares will be deemed to be a successor by reason
merely of such purchase.
SECTION 14. Governing Law. This Agreement and any Terms Agreement, and
the rights and obligations of the parties created hereby and thereby, are and
will be governed by the laws of the State of New York.
SECTION 15. Counterparts. This Agreement and any Terms Agreement may be
executed in one or more counterparts and, when a counterpart has been executed
by each party, all such counterparts taken together will constitute one and the
same agreement.
SECTION 16. Submission to Jurisdiction. Any legal action or proceeding
with respect to this Agreement and any Terms Agreement, the Shares or any
document related thereto may be brought in the courts of the State of New York
in the County of New York or the United States District Court for the Southern
District of New York and, by execution and delivery of this Agreement, Sea
Containers hereby accepts for itself and in respect of its property, generally
and unconditionally, the jurisdiction of the aforesaid courts in any such legal
action or proceeding.
30
The parties hereto hereby irrevocably waive trial by jury, and Sea Containers
hereby irrevocably waives any objection, including, without limitation,
any objection to the laying of venue or based on the grounds of forum non
conveniens, which it may now or hereafter have to the bringing of any
such action or proceeding in such respective jurisdictions. Sea Containers
hereby irrevocably designates Sea Containers America Inc. and Corporation
Service Company as the designees, appointees and agents of Sea Containers to
receive, for and on behalf of Sea Containers, service of process in such
respective jurisdictions in any legal action or proceeding with respect to this
Agreement, any Terms Agreement, the Shares or any document related thereto. It
is understood that a copy of such process served on either such agent will be
promptly forwarded to Sea Containers at its addresses set forth in Section 12,
but the failure of Sea Containers to receive such copy will not affect in any
way the service of such process. In addition to service on Sea Containers'
process agent, Sea Containers further irrevocably consents to the service of
process of any of the aforementioned courts in any such action or proceeding by
the mailing of copies thereof by registered or certified mail, postage prepaid,
to Sea Containers at its said address, such service to become effective 10 days
after such mailing. Nothing herein will affect your right or the right of any
holder of Shares to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against Sea Containers in any
other jurisdiction.
31
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to Sea Containers a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement between you and Sea Containers in accordance with its terms.
Very truly yours,
SEA CONTAINERS LTD.
By:_______________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of the date first above written:
LAZARD FRERES & CO. LLC
By: _______________________________
Name:
Title:
32
EXHIBIT A
SEA CONTAINERS LTD.
(a Bermuda company)
2,400,000 Class A Common Shares
(par value $.01 each)
TERMS AGREEMENT
[Date]
Re: Sales Agreement dated _______________, 200_
The undersigned agrees to purchase________________Shares on the
following terms:
Initial Public Offering Price: $_________per Share Discount:
Proceeds to Sea Containers Ltd.: $______ per Share Settlement
Date, Time and Place:
Exceptions, if any, to Section 3(j) of the Sales Agreement:
[The certificate referred to in Section 5(c) of the Sales Agreement, the
opinions referred to in Section 5(b) of the Sales Agreement and the accountants'
letter referred to in Section 5(e) of the Sales Agreement will be required.]
LAZARD FRERES & CO. LLC
By: _______________________________
Name:
Title:
Accepted:
SEA CONTAINERS LTD.
By: ___________________________
Name:
Title:
A-1
EXHIBIT B
Administrative Procedures
SEA CONTAINERS LTD.
2,400,000 Class A Common Shares
(par value $.01 each)
2,400,000 shares (the "Shares") of the class A common shares, par value
$.01 each, of Sea Containers Ltd., a Bermuda company (the "Company"), are to be
offered on a continuing basis by the Company. Lazard Freres & Co. LLC, as agent
(the "Agent"), has agreed to use its best efforts to sell the Shares directly
for Sea Containers, and may also purchase Shares, as principal, for resale. The
Shares are being sold pursuant to a Sales Agreement between Sea Containers and
the Agent dated __________, 2004 (the "Sales Agreement"). The Shares have been
registered under the Securities Act of 1933 with the Securities and Exchange
Commission (the "Commission").
Administrative procedures and specific terms of the offering are
explained below. Administrative responsibilities, document control and
record-keeping functions will be performed for the Company by Xxxx X. Xxxxxx,
Xx. and Xxxxx X. Xxxxxxxxxxxx.
Confirmation: At the close of business on each day on which Shares are
sold hereunder (a "trade date"), the Agent will issue a
confirmation for the day's transactions by fax or e-mail to
Xxxxx X. Xxxxxxxxxxxx at Sea Containers Services Ltd.,
London, England (fax 000-00-000-000-0000, e-mail
xxxxx.xxxxxxxxxxxx@xxxxxxxxxxxxx.xxx), with a copy to Xxxx
X. Xxxxxx, Xx. at Sea Containers America Inc. in New York
(fax 000-0000000, e-mail xxxx.xxxxxx@xxxxxxxxxxxxx.xxx)
containing the following key details:
1. The number of Shares sold.
2. The prices at which the Shares were sold.
3. The commissions payable to the Agent by Sea Containers.
4. Other applicable charges, such as transfer taxes.
5. The net proceeds payable to Sea Containers.
6. The date or dates of settlement.
Settlement Date: 3 business days after the trade date (the "settlement
date").
Denomination and
Registration: Single certificate representing total number of Shares to be
settled on a settlement date or credit to the Agent's
account at The Depository Trust Company of the total number
of Shares to be settled on the settlement date, unless other
instructions are given to Sea Containers by the Agent at
least 48 hours prior to the settlement date. All
certificates will be registered in the name of Cede & Co.
unless other instructions are given to Sea Containers by the
Agent at least 48 hours prior to the settlement date.
B-1
Details for
Settlement: On the day after a trade date, Sea Containers will authorize
EquiServe Trust Company N.A., as transfer agent, by fax or
e-mail to deliver certificate(s) or credit Shares to Agent's
Depository Trust Company account on the settlement date upon
telephonic, fax or e-mail authorization by Sea Containers on
such date. Sea Containers will indicate denominations of
certificate(s). On the settlement date, Agent will credit
the amount of net sales proceeds to the account of Sea
Containers with Agent or send New York Clearing House funds
in the amount of net sales proceeds (sales price less
commission and transfer taxes) by wire to________________
Bank, New York, NY, for the account of Sea Containers Ltd.,
Account No._________________ , ABA Code _________________,
Swift Code _______________. Upon telephonic receipt of funds
wire number, Sea Containers will authorize EquiServe Trust
Company N.A. by telephone, fax or e-mail to release
certificates to Agent.
Delivery of
Certificates: EquiServe Trust Company N.A. will call Xxxx Xxxxxxxxx of
Agent (telephone (000) 000-0000) two days prior to
settlement to confirm delivery of certificate(s). EquiServe
Trust Company N.A. will release certificate(s) to Agent on
telephonic authorization by Sea Containers. Certificate(s)
will be delivered to Lazard Freres & Co. LLC, 00 Xxxxxxxxxxx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, or by other means for the
account of the Agent through The Depository Trust Company,
not later than 10:00 a.m., New York City time, on the third
business day after the trade date for the sale of such
Shares; provided that Sea Containers and the Agent may agree
that delivery of and payment for Shares sold in particular
transactions and/or payment of commissions in respect
thereof is to be made at such other times and places and in
such other manner as Sea Containers and the Agent may
determine
Fails: If on the settlement date the certificate(s) are ready for
delivery but Agent does not wire funds to Sea Containers or
credit net sales proceeds to Sea Containers' account with
Agent, Agent will pay interest to Sea Containers for each
day's delay at the federal funds rate.
Suspension of Sales;
Amendment or
Supplement: Sea Containers will give Agent telephonic notice of
suspension, amendment or supplement, confirmed by fax or
e-mail.
B-2
Delivery of
Prospectus: Sea Containers will deliver to Agent such number of copies
of the Prospectus as the Agent may reasonably request. Sea
Containers will file seven current Prospectuses with the New
York Stock Exchange, or such other number as may be required
from time to time pursuant to Rule 153.
Payment of
Selling Commissions
and Transfer Taxes: Commissions and taxes will be deducted from sales price paid
to Sea Containers.
B-3
