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Exhibit 1.1
UBS AG
$2,000,000,000
MEDIUM TERM NOTES, SERIES A
DISTRIBUTION AGREEMENT
November __, 2000
UBS Warburg LLC,
000 Xxxxxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
PaineWebber Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
UBS AG, a corporation organized under the laws of Switzerland (the
"Company"), proposes to issue and sell from time to time certain Medium Term
Notes, Series A (the "Securities") in an amount having an aggregate initial
offering price of up to $2,000,000,000 and agrees with each of you
(individually, an "Agent" and, collectively, the "Agents") as set forth in this
Agreement. Each of the terms "the Agents", "such Agent", "any Agent", "an
Agent", "each Agent", "the Purchasing Agent" and "the Selling Agent", when used
in this Agreement or in any Terms Agreement (as defined below) or in the Annexes
hereto, shall mean UBS Warburg LLC and PaineWebber Incorporated, except at any
time when more Agents are acting as such hereunder, as contemplated in Section
10 hereof.
The Company acknowledges and agrees that UBS Warburg LLC and PaineWebber
Incorporated may use the Prospectus (as defined below) in connection with offers
and sales of the Securities as contemplated in the Prospectus under the caption
"Plan of Distribution -- Plan of Distribution for Market-Making Resales by
Affiliates" ("Secondary Market Transactions"). The Company further acknowledges
and agrees that each of UBS Warburg LLC and PaineWebber Incorporated is under no
obligation to effect any Secondary Market Transactions and, if it does so, it
may discontinue effecting such transactions at any time without providing any
notice to the Company. The term "Agent", whenever used in this Agreement, shall
include each of UBS Warburg LLC and PaineWebber Incorporated, whether acting in
its capacity as an Agent or acting in connection with a Secondary Market
Transaction, except as may be specifically provided otherwise herein.
Subject to the terms and conditions stated herein and to the reservation
by the Company of the right to sell Securities directly on its own behalf, the
Company hereby (i) appoints each Agent as an agent of the Company for the
purpose of soliciting and receiving offers to purchase Securities from the
Company pursuant to Section 2(a) hereof and (ii) agrees that, except as
otherwise contemplated herein, whenever it determines to sell Securities
directly to any Agent as principal, it will enter into a separate agreement
(each a "Terms Agreement"), substantially in the form of Annex I hereto or in
such other form as may be agreed by the parties to that particular agreement,
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relating to such sale in accordance with Section 2(b) hereof. This Distribution
Agreement shall not be construed to create either an obligation on the part of
the Company to sell any Securities or an obligation of any of the Agents to
purchase Securities as principal.
The Securities will be issued under an indenture, dated as of November
__, 2000 (as it may be amended from time to time, the "Indenture"), between the
Company and U.S. Bank Trust, National Association, as trustee (including any
successor trustee thereunder, the "Trustee"). The Securities shall have the
maturity ranges, interest rates, if any, redemption provisions and other terms
set forth in the Prospectus referred to below as it may be amended or
supplemented from time to time. The Securities will be issued, and the terms and
rights thereof established, from time to time by the Company in accordance with
the Indenture.
1. The Company represents and warrants to, and agrees with, each Agent
that:
(a) A registration statement on Form F-1 (File No. 333-46930) in
respect of the Securities has been filed with the Securities and Exchange
Commission (the "Commission"); such registration statement and any
post-effective amendment thereto, each in the form heretofore delivered or to be
delivered to such Agent, excluding exhibits to such registration statement, have
been declared effective by the Commission in such form; no other document with
respect to such registration statement has been filed with the Commission (other
than the prospectuses filed pursuant to Rule 424(b) of the rules and regulations
of the Commission under the Securities Act of 1933, as amended (the "Act"), each
in the form delivered to the Agents); and no stop order suspending the
effectiveness of such registration statement has been issued and no proceeding
for that purpose has been initiated or threatened by the Commission (any
preliminary prospectus included in such registration statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Act, is hereinafter called a "Preliminary Prospectus"; the
various parts of such registration statement, including all exhibits thereto but
excluding Form T-1 and, if applicable, including the information contained in
the form of final prospectus filed with the Commission pursuant to Rule 424(b)
under the Act, in accordance with Section 4(a) hereof and deemed by virtue of
Rule 430A under the Act to be part of the registration statement, each as
amended at the time such part of the registration statement became effective, is
hereinafter collectively called the "Registration Statement"; the prospectus
(including, if applicable, any prospectus supplement) relating to the
Securities, in the form in which it has most recently been filed, or transmitted
for filing, with the Commission on or prior to the date of this Agreement, is
hereinafter called the "Prospectus"; any supplement to the Prospectus that sets
forth only the terms of a particular issue of the Securities and is filed in
accordance with Section 4(a) hereof is hereinafter called a "Pricing
Supplement"; and any reference herein to the Prospectus as amended or
supplemented shall be deemed to refer to and include the Prospectus as amended
and supplemented (including by the applicable Pricing Supplement) in relation to
Securities to be sold pursuant to this Agreement, in the form filed or
transmitted for filing with the Commission pursuant to Rule 424(b) under the Act
and in accordance with Section 4(a) hereof);
(b) No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus,
at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an Agent
expressly for use therein;
(c) The Registration Statement and the Prospectus conform, and
any further amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements of the Act
and the Trust Indenture Act, and the rules and regulations of the Commission
thereunder
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and do not and will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto and as of the applicable filing
date as to the Prospectus and any amendment or supplement thereto, contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by any Agent expressly for use in the
Prospectus as amended or supplemented to relate to a particular issuance of
Securities;
(d) The financial statements of the Company and its consolidated
subsidiaries included in the Prospectus present fairly the financial position of
the Company and its consolidated subsidiaries on a consolidated basis, as of the
dates indicated, and the results of their operations for the periods specified
in accordance with International Accounting Standards;
(e) The unaudited pro forma financial statements of the Company
included in the Registration Statement comply as to form with in all material
respects with the applicable accounting requirements of the Act and the
published rules and regulations thereunder, and the pro forma adjustments have
been properly applied to the historical amounts in the compilation of the
statements;
(f) Subsequent to the respective dates as of which information is
given in the Prospectus, there has been no material adverse change in the
condition, financial or otherwise, or in the business affairs of the Company and
its consolidated subsidiaries, taken as a whole, whether or not arising in the
ordinary course of business, except as set forth or contemplated in the
Prospectus;
(g) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued and are fully paid and
non-assessable;
(h) The Company has been duly organized and is validly existing
under the laws of Switzerland, with full power and authority to engage in its
business in Switzerland. The Company is licensed, registered or qualified to
conduct the business in which it is engaged in each jurisdiction where the
conduct of its business or the location of its properties requires such
licenses, registration or qualification, except for such jurisdictions where the
failure to so qualify will not have a material adverse effect on the financial
condition of the Company and its consolidated subsidiaries, taken as a whole;
(i) The Securities have been duly authorized, and, when issued
and delivered pursuant to this Agreement and any Terms Agreement, will have been
duly executed, authenticated, issued and delivered and will constitute valid and
legally binding obligations of the Company under the laws of the State of New
York and Switzerland, entitled to the benefits provided by the Indenture, which
will be substantially in the form filed as an exhibit to the Registration
Statement; the Indenture has been duly authorized, executed and delivered by the
Company and duly qualified under the Trust Indenture Act and constitutes a valid
and legally binding instrument, enforceable in accordance with its terms under
the laws of the State of New York and Switzerland, subject, as to enforcement,
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles; and the Indenture conforms and the Securities of any particular
issuance of Securities will conform to the descriptions thereof contained in the
Prospectus as amended or supplemented to relate to such issuance of Securities;
(j) The Company is not in violation of its Articles of
Association or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other instrument to which it
is a party or by which it or its properties may be bound where the effect of
such violation or default would be to materially impair the Company's ability to
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perform its obligations hereunder or under the Securities. This Agreement and
any Terms Agreement has been duly authorized, executed and delivered by the
Company and the performance of this Agreement, any Terms Agreement and the
Indenture by the Company of its obligations hereunder and thereunder have been
duly authorized by all necessary corporate action and will not conflict with or
constitute a breach of, or default under, or result in the creation of
imposition of any lien, charge or encumbrance upon any property or assets of the
Company pursuant to any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which the Company is a party or by which it may be
bound or to which any of the property or assets of the Company is subject, nor
will such action result in any violation of the provisions of the Articles of
Association of the Company or any law, administrative regulation or
administrative or court order or decree applicable to the Company; and no
consent, approval, authorization, order, registration or qualification of or
with any court or governmental agency or body is required for the solicitation
of offers to purchase Securities, the issue and sale of the Securities or the
consummation by the Company of the other transactions contemplated by this
Agreement, any Terms Agreement or the Indenture, except such as have been, or
will have been prior to the Commencement Date (as defined in Section 3 hereof),
obtained under the Act or the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the solicitation by such Agent of
offers to purchase Securities from the Company and with purchases of Securities
by such Agent as principal, as the case may be, in each case in the manner
contemplated hereby;
(k) The statements set forth in the Prospectus under the caption
"Description of Debt Securities We May Offer", insofar as they purport to
constitute a summary of the terms of the Securities, and under the captions
"United States Taxation" and "Plan of Distribution", insofar as they purport to
describe the provisions of the laws and documents referred to therein, are
accurate, complete and fair;
(l) There are no legal or governmental actions, suits or
proceedings before or by any court or governmental agency or body, domestic or
foreign, now pending or, to the best knowledge of the Company, threatened
against or affecting the Company or of which any property of the Company is
subject, other than as set forth in the Prospectus and other than legal or
governmental actions, suits or proceedings which in each case and in the
aggregate are not expected to have a material adverse effect on the financial
condition of the Company and its consolidated subsidiaries taken as a whole or
the ability of the Company to perform its obligations under this Agreement, the
Securities or the Indenture;
(m) The Company is not and, after giving effect to each offering
and sale of the Securities, will not be an "investment company", as such term is
defined in the Investment Company Act of 1940, as amended (the "Investment
Company Act");
(n) ATAG Ernst & Young, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(o) Under the laws of Switzerland, the obligations of the Company
under the Securities will rank pari passu under all other unsecured indebtedness
of the Company for money borrowed that is not contractually subordinated to the
payment of such obligations including unsecured deposit obligations, except for
obligations entitled to statutory priority in the event of liquidation upon
insolvency.
(p) Under the laws of the Switzerland, the Company, being a
corporation which is subject to civil and commercial law, has no right of
immunity, on the grounds of sovereignty or otherwise.
2. (a) On the basis of the representations and warranties herein
contained, and subject to the terms and conditions herein set forth, each of the
Agents hereby severally and not jointly agrees, as agent of the Company,
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to use its reasonable efforts to solicit and receive offers to purchase the
Securities from the Company upon the terms and conditions set forth in the
Prospectus as amended or supplemented from time to time. So long as this
Agreement shall remain in effect with respect to any Agent, the Company shall
not, without the consent of such Agent, solicit or accept offers to purchase, or
sell, any debt securities except (i) pursuant to this Agreement or any Terms
Agreement, (ii) pursuant to a private placement not constituting a public
offering under the Act, (iii) pursuant to an offering of securities exempt from
registration under Section 3(a)(2) under the Act, (iv) pursuant to an offering
outside the United States that is not subject to the registration requirements
of the Act or (v) in connection with a firm commitment underwriting pursuant to
an underwriting agreement that does not provide for a continuous offering of
debt securities (other than in Secondary Market Transactions). However, the
Company reserves the right to sell, and may solicit and accept offers to
purchase, Securities directly on its own behalf in transactions with persons
other than broker-dealers, and, in the case of any such sale not resulting from
a solicitation made by any Agent, no commission will be payable with respect to
such sale. These provisions shall not limit Section 4(f) hereof or any similar
provision included in any Terms Agreement.
Procedural details relating to the issue and delivery of Securities,
the solicitation of offers to purchase Securities and the payment in each case
therefor shall be as set forth in the Administrative Procedure attached hereto
as Annex II as it may be amended from time to time by written agreement between
the Agents and the Company (the "Administrative Procedure"). The provisions of
the Administrative Procedure shall apply to all transactions contemplated
hereunder other than those made pursuant to a Terms Agreement. Each Agent and
the Company agree to perform the respective duties and obligations specifically
provided to be performed by each of them in the Administrative Procedure. The
Company will furnish to the Trustee a copy of the Administrative Procedure as
from time to time in effect.
The Company reserves the right, in its sole discretion, to suspend
solicitation of offers to purchase Securities from the Company commencing at any
time for any period of time or permanently. The Company shall be entitled to
suspend such solicitation as to any Agent or all of the Agents, as determined by
the Company. Upon receipt of instructions from the Company, the relevant Agent
or Agents shall suspend solicitation of offers to purchase from the Company
until such time as the Company has advised such Agent or Agents that such
solicitation may be resumed. During such period, the Company shall not be
required to comply with the provisions of Sections 4(h), 4(i), 4(j), 4(k) and
4(l). Upon advising the Agents that such solicitation may be resumed, however,
the Company shall simultaneously provide the documents required to be delivered
by Sections 4(h), 4(i), 4(j), 4(k) and 4(l), and the Agents shall have no
obligation to solicit offers to purchase the Securities until such documents
have been received by the Agents. In addition, any failure by the Company to
comply with its obligations hereunder, including its obligations to deliver the
documents required by Sections 4(h), 4(i), 4(j), 4(k) and 4(l), shall
automatically terminate the Agents' obligations hereunder, including its
obligations to solicit offers to purchase the Securities hereunder as agent or
to purchase Securities hereunder as principal.
The Company agrees to pay each Agent a commission, at the time of
settlement of any sale of a Security by the Company as a result of a
solicitation made by such Agent, in an amount equal to the following applicable
percentage of the principal amount of such Security sold:
Commission
Maturities (percentage of principal amount)
---------- --------------------------------
Less Than 9 Months 0.100%
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Commission
Maturities (percentage of principal amount)
---------- --------------------------------
From 9 months to less than 1 year 0.125%
From 1 year to less than 18 months 0.150%
From 18 months to less than 2 years 0.200%
From 2 years to less than 3 years 0.250%
From 3 years to less than 4 years 0.350%
From 4 years to less than 5 years 0.450%
From 5 years to less than 6 years 0.500%
From 6 years to less than 7 years 0.550%
From 7 years to less than 10 years 0.600%
From 10 years to less than 15 years 0.625%
From 15 years to less than 20 years 0.700%
From 20 years to less than 30 years 0.750%
30 years or more (To be negotiated)
(b) Each sale of Securities by the Company to any Agent as
principal shall be made in accordance with the terms of this Agreement and
(unless the Company and such Agent shall otherwise agree) a Terms Agreement
which will provide for the sale of such Securities by the Company to, and the
purchase thereof by, such Agent; a Terms Agreement may also specify certain
provisions relating to the reoffering of such Securities by such Agent; the
commitment of any Agent to purchase Securities as principal, whether pursuant to
any Terms Agreement or otherwise, shall be deemed to have been made on the basis
of the representations and warranties of the Company herein contained and shall
be subject to the terms and conditions herein set forth; each Terms Agreement
shall specify the principal amount of Securities to be purchased by any Agent
pursuant thereto, the price to be paid to the Company for such Securities, any
provisions relating to rights of, and default by, underwriters acting together
with such Agent in the reoffering of the Securities and the time and date and
place of delivery of and payment for such Securities; such Terms Agreement shall
also specify any requirements for opinions of counsel, accountants' letters and
officers' certificates pursuant to Section 4 hereof and such Terms Agreement may
also include such other provisions (including provisions that modify this
Agreement insofar as it sets forth the agreement between the Company and such
Agent) as the Company and such Agent may agree upon. Each Agent proposes to
offer Securities purchased by it as principal from the Company for sale at
prevailing market prices or prices related
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thereto at the time of sale, which may be equal to, greater than or less than
the price at which such Securities are purchased by such Agent from the Company.
Unless otherwise agreed between the Company and the relevant Agents, where more
than one Agent has agreed with the Company to purchase a particular issue of
Securities pursuant to this subsection, the obligations of such Agents so to
purchase such Securities shall be several and not joint.
For each sale of Securities by the Company to an Agent as principal
that is not made pursuant to a Terms Agreement, the procedural details relating
to the issue and delivery of such Securities and payment therefor shall be as
set forth in the Administrative Procedure. For each such sale of Securities by
the Company to an Agent as principal that is not made pursuant to a Terms
Agreement, the Company agrees to pay such Agent a commission (or grant an
equivalent discount) as provided in Section 2(a) hereof and in accordance with
the schedule set forth therein.
Each time and date of delivery of and payment for Securities to be
purchased from the Company by an Agent as principal, whether set forth in a
Terms Agreement or in accordance with the Administrative Procedure, is referred
to herein as a "Time of Delivery".
(c) Each Agent agrees, with respect to any Security
denominated in a currency other than U.S. dollars, and whether acting as agent,
as principal under any Terms Agreement or otherwise (including in any Secondary
Market Transaction), not to solicit offers to purchase or otherwise offer, sell
or deliver such Security, directly or indirectly, in, or to residents of, the
country issuing such currency, except as permitted by applicable law.
(d) Nothing in this Agreement shall be read or deemed to
preclude the Company and one or more of the Agents from modifying or
supplementing this Agreement (including the Administrative Procedure) insofar as
it applies to transactions between them without such modifications or
supplemental provisions being made of general applicability to transactions
between the Company and all of the Agents.
3. The documents required to be delivered pursuant to Section 6 hereof
on the Commencement Date (as defined below) shall be delivered to the Agents at
the offices of Xxxxxxxx & Xxxxxxxx, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
at 11:00 a.m., New York City time, on the date of this Agreement, which date and
time of such delivery may be postponed by agreement between the Agents and the
Company but in no event shall be later than the day prior to the date on which
solicitation of offers to purchase Securities is commenced or on which any Terms
Agreement is executed (such time and date being referred to herein as the
"Commencement Date").
4. The Company covenants and agrees with each Agent:
(a) (i) To make no amendment or supplement to the Registration
Statement or the Prospectus (A) prior to the Commencement Date which shall be
disapproved by any Agent promptly after reasonable notice thereof, (B) after the
date of any Terms Agreement or other agreement by an Agent to purchase
Securities as principal and prior to the related Time of Delivery which shall be
disapproved by any Agent party to such Terms Agreement or so purchasing as
principal promptly after reasonable notice thereof or (C) during the period
beginning on the Commencement Date and continuing for as long as may be required
under applicable law, in the reasonable judgment of such Agent after
consultation with the Company, in order to offer and sell any Securities in
Secondary Market Transactions as contemplated by the Prospectus (the "Secondary
Transactions Period") which shall be disapproved by such Agent promptly after
reasonable notice thereof;
(ii) to prepare, with respect to any Securities to be sold by
the Company through or to such Agent pursuant to this Agreement, a Pricing
Supplement with respect to such Securities in a form previously
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approved by such Agent and to file such Pricing Supplement pursuant to Rule
424(b) under the Act not later than the close of business of the Commission
on the fifth business day after the date on which such Pricing Supplement is
first used or, if required under Rule 424(b) under the Act, no later than
the close of business of the Commission on the second business day after the
date on which such Pricing Supplement is first used;
(iii) to make no amendment or supplement to the Registration
Statement or Prospectus, other than any Pricing Supplement, at any time
prior to having afforded each Agent a reasonable opportunity to review and
comment thereon (other than documents filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and incorporated by reference
in such Registration Statement or Prospectus, as the case may be, which
documents the Company shall provide to such Agent promptly after being
transmitted for filing with the Commission);
(iv) to file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act for so long as the delivery of a prospectus is required in connection
with the offering or sale of the Securities (including in any Secondary
Market Transactions during the Secondary Transactions Period), and during
such same period to advise such Agent, promptly after the Company receives
notice thereof, of the time when any amendment to the Registration
Statement has been filed or has become effective or any supplement to the
Prospectus or any amended Prospectus (other than any Pricing Supplement
that relates to Securities not purchased through or by such Agent) has been
filed with the Commission, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any prospectus
relating to the Securities, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request by
the Commission for the amendment or supplement of the Registration
Statement or Prospectus or for additional information; and
(v) in the event of the issuance of any such stop order or of
any such order preventing or suspending the use of any such prospectus or
suspending any such qualification, to use promptly its best efforts to
obtain its withdrawal; It is understood and agreed that, if Form F-2 or F-3
under the Act is available to the Company, the Company may amend the
Registration Statement so as to be on such form or may file a new
registration statement on such form and have it declared effective by the
Commission, and thereafter any information required to be included in the
Registration Statement or the Prospectus may be incorporated therein by
reference as permitted by such form, provided that:
(X) if a new registration statement is filed, the Company
shall be deemed to have made the representations and warranties in Sections
1(a), 1(b) and 1(c) hereof with respect to such new registration statement
as of its effective date, any preliminary prospectus included therein, as
of its date, and the prospectus included therein in the form in which it is
first filed pursuant to Rule 424(b) under the Act, as of its date, and to
have made the agreements in Section 4(a)(i) hereof with respect to the
initial filing of such new registration statement, each filing of a
pre-effective amendment thereto and each filing of a related prospectus
pursuant to Rule 424(a) or (b) under the Act;
(Y) if a new registration statement is filed and becomes
effective, any reference herein to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall thereafter include,
respectively, such new registration statement, any preliminary prospectus
included therein and the prospectus included therein in the form first
filed pursuant to Rule 424(b) under the Act; and
(Z) if a new registration statement is filed and becomes
effective, any reference in this Agreement to any Preliminary Prospectus or
the Prospectus shall thereafter be deemed to refer to and include
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any documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and incorporated by reference in such
Preliminary Prospectus or Prospectus, as the case may be.
(b) Promptly from time to time to take such action as such Agent
may reasonably request to qualify the Securities for offering and sale
under the securities laws of such jurisdictions as such Agent may request
and to comply with such laws so as to permit the continuance of sales and
dealings therein for as long as may be necessary to complete the
distribution or sale of the Securities (including in any Secondary Market
Transactions during the Secondary Transactions Period); provided, however,
that in connection therewith the Company shall not be required to qualify
as a foreign corporation or to file a general consent to service of process
in any such jurisdiction;
(c) (i) To furnish such Agent with copies of the Registration
Statement and each amendment thereto and with copies of the Prospectus as
each time amended or supplemented, other than any Pricing Supplement (except
as provided in the Administrative Procedure), in the form in which it is
filed with the Commission pursuant to Rule 424 under the Act, all in such
quantities as such Agent may reasonably request from time to time;
(ii) if the delivery of a prospectus is required at any time
in connection with the offering or sale of the Securities (including
Securities purchased from the Company by such Agent as principal and
including in any Secondary Market Transactions during the Secondary
Transactions Period) and if at such time any event shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it shall be
necessary during such same period to amend or supplement the Prospectus in
order to comply with the Act or the Trust Indenture Act, to notify such
Agent and request such Agent, in its capacity as agent of the Company, to
suspend solicitation of offers to purchase Securities from the Company
(and, if so notified, such Agent shall cease such solicitations as soon as
practicable, but in any event not later than one business day later); and
if the Company shall decide to amend or supplement the Registration
Statement or the Prospectus as then amended or supplemented, to so advise
such Agent promptly by telephone (with confirmation in writing) and to
prepare and cause to be filed promptly with the Commission an amendment or
supplement to the Registration Statement or the Prospectus as then amended
or supplemented that will correct such statement or omission or effect such
compliance;
(iii) notwithstanding paragraph (ii) above, if during the
period specified in such paragraph such Agent continues to own Securities
purchased from the Company by such Agent as principal or such Agent is
otherwise required to deliver a prospectus in respect of transactions in
the Securities (including in any Secondary Market Transactions during the
Secondary Transactions Period), the Company shall promptly prepare and file
with the Commission such an amendment or supplement and furnish without
charge to such Agent as many copies as it may from time to time during such
period reasonably request of such amendment or supplement; provided,
however, that the Company may elect, upon notice to such Agent not to
comply with this paragraph (iii) with respect to any Secondary Market
Transaction, but only for a period or periods that the Company reasonably
determines are necessary in order to avoid premature disclosure of
material, non-public information, unless, notwithstanding such election,
such disclosure would otherwise be required under this Agreement; and
provided, further, that no such period or periods described in the
preceding proviso shall exceed 90 days in the aggregate during any period
of 12 consecutive calendar months. Upon receipt of any such notice, each
Agent shall cease using the Prospectus or any amendment or supplement
thereto in connection with
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Secondary Market Transactions until it receives notice from the Company that
it may resume using such document (or such document as it may be amended or
supplemented);
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c) under
the Act), an earnings statement of the Company and its subsidiaries (which need
not be audited) complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158 under the Act);
(e) So long as such Agent is continuing to solicit and receive
offers to purchase Securities in accordance with the terms and conditions of
this Agreement, to furnish to such Agent copies of all reports or other
communications (financial or other) furnished to stockholders generally, and to
deliver to such Agent (i) as soon as they are available, copies of any reports
and financial statements furnished to or filed with the Commission or any
national securities exchange on which any class of securities of the Company is
listed; and (ii) such additional information concerning the business and
financial condition of the Company as such Agent may from time to time
reasonably request (such financial statements to be on a consolidated basis to
the extent the accounts of the Company and its subsidiaries are consolidated in
reports furnished to its stockholders generally or to the Commission);
(f) That, from the date of any Terms Agreement with such Agent
or other agreement by such Agent to purchase Securities as principal and
continuing to and including the later of (i) the termination of the "restricted
period", as such term is defined under Regulation M, relating to the Securities
purchased thereunder, as notified to the Company by such Agent, and (ii) the
related Time of Delivery, the Company will not, without the prior written
consent of such Agent, offer, sell, contract to sell or otherwise dispose of any
debt securities of the Company which are substantially similar to such
Securities;
(g) That each acceptance by the Company of an offer to
purchase Securities hereunder (including any purchase from the Company by such
Agent as principal not pursuant to a Terms Agreement), and each execution and
delivery by the Company of a Terms Agreement with such Agent, shall be deemed to
be an affirmation to such Agent that the representations and warranties of the
Company contained in or made pursuant to this Agreement are true and correct as
of the date of such acceptance or of such Terms Agreement, as the case may be,
as though made at and as of such date, and an undertaking that such
representations and warranties will be true and correct as of the settlement
date for the Securities relating to such acceptance or as of the Time of
Delivery relating to such sale, as the case may be, as though made at and as of
such date (except that such representations and warranties shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented relating to such Securities);
(h) That each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a Pricing
Supplement), and each time the Company sells Securities to such Agent as
principal pursuant to a Terms Agreement and such Terms Agreement specifies the
delivery of an opinion under this Section 4(h) as a condition to the purchase of
Securities pursuant to such Terms Agreement, the Company shall furnish or cause
to be furnished forthwith to such Agent a written opinion of the Company's Swiss
counsel, or other counsel for the Company satisfactory to such Agent, dated the
date of such amendment or supplement or the Time of Delivery relating to such
sale, as the case may be, in form satisfactory to such Agent, to the effect that
such Agent may rely on the opinion of such counsel referred to in Section 6(b)
hereof which was last furnished to such Agent to the same extent as though it
were dated the date of such letter authorizing reliance (except that the
statements in such last opinion shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such date) or, in
lieu of such opinion, an opinion of the same tenor as the opinion of such
counsel
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referred to in Section 6(b) hereof but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to such date;
(i) That each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a Pricing
Supplement), and each time the Company sells Securities to such Agent as
principal pursuant to a Terms Agreement and such Terms Agreement specifies the
delivery of an opinion under this Section 4(i) as a condition to the purchase of
Securities pursuant to such Terms Agreement, the Company shall furnish or cause
to be furnished forthwith to such Agent a written opinion of Xxxxxxxx &
Xxxxxxxx, the Company's United States counsel, dated the date of such amendment
or supplement or the Time of Delivery relating to such sale, as the case may be,
in form satisfactory to such Agent, to the effect that such Agent may rely on
the opinion of such counsel referred to in Section 6(c) hereof which was last
furnished to such Agent to the same extent as though it were dated the date of
such letter authorizing reliance (except that the statements in such last
opinion shall be deemed to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date) or, in lieu of such
opinion, an opinion of the same tenor as the opinion of such counsel referred to
in Section 6(c) hereof but modified to relate to the Registration Statement and
the Prospectus as amended and supplemented to such date;
(j) That each time the Registration Statement or the
Prospectus shall be amended or supplemented to set forth financial information
included in or derived from the Company's consolidated financial statements or
accounting records, and each time the Company sells Securities to such Agent as
principal pursuant to a Terms Agreement and such Terms Agreement specifies the
delivery of a letter under this Section 4(j) as a condition to the purchase of
Securities pursuant to such Terms Agreement, the Company shall cause the
independent certified public accountants who have certified the financial
statements of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement forthwith to furnish such Agent a
letter, dated the date of such amendment or supplement or the Time of Delivery
relating to such sale, as the case may be, in form satisfactory to such Agent,
of the same tenor as the letter referred to in Section 6(d) hereof but modified
to relate to the Registration Statement and the Prospectus as amended or
supplemented to the date of such letter, with such changes as may be necessary
to reflect changes in the financial statements and other information derived
from the accounting records of the Company, to the extent such financial
statements and other information are available as of a date not more than five
business days prior to the date of such letter; provided, however, that, with
respect to any financial information or other matter, such letter may reconfirm
as true and correct at such date as though made at and as of such date, rather
than repeat, statements with respect to such financial information or other
matter made in the letter referred to in Section 6(d) hereof which was last
furnished to such Agent;
(k) That each time the Registration Statement or the
Prospectus shall be amended or supplemented (other than by a Pricing
Supplement), and each time the Company sells Securities to such Agent as
principal and the applicable Terms Agreement specifies the delivery of a
certificate under this Section 4(k) as a condition to the purchase of Securities
pursuant to such Terms Agreement, the Company shall furnish or cause to be
furnished forthwith to such Agent a certificate, dated the date of such
supplement or amendment or the Time of Delivery relating to such sale, as the
case may be, in such form and executed by such officers of the Company as shall
be satisfactory to such Agent, to the effect that the statements contained in
the certificates referred to in Section 6(i) hereof which was last furnished to
such Agent are true and correct at such date as though made at and as of such
date (except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such date), or, in
lieu of such certificate, certificates of the same tenor as the certificates
referred to in said Section 6(i) but modified to relate to the Registration
Statement and the Prospectus as amended and supplemented to such date;
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(m) To offer to any person who has agreed to purchase
Securities from the Company as the result of an offer to purchase solicited by
such Agent the right to refuse to purchase and pay for such Securities if, on
the related settlement date fixed pursuant to the Administrative Procedure, any
condition set forth in Section 6(a), 6(e), 6(f), 6(g) or 6(h) hereof shall not
have been satisfied (it being understood that the judgment of such person with
respect to the impracticability or inadvisability of such purchase of Securities
shall be substituted, for purposes of this Section 4(l), for the respective
judgments of an Agent with respect to certain matters referred to in such
Sections 6(e) and 6(g), and that such Agent shall have no duty or obligation
whatsoever to exercise the judgment permitted under such Sections 6(e) and 6(g)
on behalf of any such person); and
(n) In the event that the Company and one or more Agents agree
to list Securities on a stock exchange, the Company shall cause an initial
application to be made on such stock exchange. In connection with any series of
Securities that is intended to be listed, the Company shall use its reasonable
best efforts to obtain the listing as promptly as practicable and to furnish or
cause to be furnished any and all documents, instruments, information and
undertakings that may be necessary or advisable in order to obtain and maintain
the listing. The Company shall comply with any undertaking given to it from time
to time by the relevant stock exchange in connection with any Securities listed
on such stock exchange and shall furnish or cause to be furnished to the
relevant stock exchange all such information as the relevant stock exchange may
require in connection with the listing of any Securities on such stock exchange;
and if any Securities cease to be listed on the relevant stock exchange, the
Company shall endeavor promptly to list such Securities on such securities
exchange as may be agreed between the Company and the relevant Agent.
5. The Company covenants and agrees with each Agent that the Company
will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Registration
Statement, any Preliminary Prospectus, the Prospectus, any Prospectus
Supplements and any Pricing Supplements and all other amendments and supplements
thereto and the mailing and delivering of copies thereof to such Agent; (ii) the
cost of printing, producing or reproducing this Agreement, any Terms Agreement,
any Indenture, closing documents (including any compilations thereof) and any
other documents in connection with the offering, purchase, sale and delivery of
the Securities; (iii) all expenses in connection with the qualification of the
Securities for offering and sale under state securities laws as provided in
Section 4(b) hereof, including the fees and disbursements in connection with
such qualification and in connection with any Blue Sky and legal investment
surveys; (iv) any fees charged by securities rating services for rating the
Securities; (v) any filing fees incident to, and the fees and disbursements in
connection with, any required review by the National Association of Securities
Dealers, Inc. of the terms of the sale of the Securities (other than, in the
case of UBS Warburg LLC, in any Secondary Market Transactions); (vi) the cost of
preparing the Securities; (vii) the fees and expenses of any Trustee and any
agent of any Trustee and any transfer or paying agent of the Company and the
fees and disbursements of counsel for any Trustee or such agent in connection
with any Indenture and the Securities; (viii) any advertising expenses connected
with the solicitation of offers to purchase and the sale of Securities so long
as such advertising expenses have been approved by the Company; and (ix) all
other costs and expenses incident to the performance of its obligations
hereunder which are not otherwise specifically provided for in this Section.
Except as provided in Sections 7 and 8 hereof, each Agent shall pay all other
expenses it incurs.
6. The obligation of any Agent, as agent of the Company, at any time
("Solicitation Time") to solicit offers to purchase the Securities from the
Company and the obligation of any Agent to purchase Securities from the Company
as principal, pursuant to any Terms Agreement or otherwise, shall in each case
be subject, in such Agent's discretion, to the condition that all
representations and warranties and other statements of the Company
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herein (and, in the case of an obligation of an Agent under a Terms Agreement,
in or incorporated by reference in such Terms Agreement) are true and correct at
and as of the Commencement Date and any applicable date referred to in Section
4(k) hereof that is prior to such Solicitation Time or Time of Delivery, as the
case may be, and at and as of such Solicitation Time or Time of Delivery, as the
case may be; the condition that prior to such Solicitation Time or Time of
Delivery, as the case may be, the Company shall have performed all of its
obligations hereunder theretofore to be performed; and the following additional
conditions:
(a) (i) With respect to any Securities sold at or prior to such
Solicitation Time or Time of Delivery, as the case may be, the Prospectus as
amended or supplemented (including the Pricing Supplement) with respect to such
Securities shall have been filed with the Commission pursuant to Rule 424(b)
under the Act within the applicable time period prescribed for such filing by
the rules and regulations under the Act and in accordance with Section 4(a)
hereof; (ii) no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and (iii) all requests for
additional information on the part of the Commission shall have been complied
with to the reasonable satisfaction of such Agent;
(b) Bar & Xxxxxx, Swiss counsel for the Company, or other counsel
for the Company satisfactory to such Agent, shall have furnished to such Agent
such counsel's written opinions, dated the Commencement Date and each applicable
date referred to in 4(h) hereof that is on or prior to such Solicitation Time or
Time of Delivery, as the case may be, in form and substance satisfactory to such
Agent, to the effect that:
(i) The Company has been duly organized and is validly
existing under the laws of Switzerland, with full power and authority to
own its properties and conduct its business as described in the Prospectus
as amended or supplemented;
(ii) The Company has an authorized capitalization as set
forth in the Prospectus as amended or supplemented and all of the issued
shares of capital stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable;
(iii) To the best of such counsel's knowledge and other than
as set forth in the Prospectus as amended or supplemented, there are no
legal or governmental proceedings pending to which the Company or any of
its subsidiaries is a party or to which any property of the Company or any
of its subsidiaries is subject, that is reasonably likely, individually or
in the aggregate, to have a material adverse effect on the current or
future consolidated financial position, stockholders' equity or results of
operations of the Company and its subsidiaries, and to the best of such
counsel's knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others;
(iv) This Agreement and any applicable Terms Agreement have
been duly authorized, executed and delivered by the Company;
(v) The Indenture has been duly authorized, executed and
delivered by the Company and constitutes a valid and legally binding
obligation of the Company enforceable in accordance with its terms insofar
as the laws of Switzerland are concerned, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles;
(vi) The Securities have been duly authorized and, when the
terms of a particular Security and of its issuance and sale have been duly
authorized and established by all necessary corporate action in conformity
with the Indenture, and such Security has been duly prepared, executed,
authenticated and issued in accordance with the Indenture and delivered
against payment in accordance with this Agreement, such Security will
constitute a valid and legally binding obligation of the Company
enforceable in accordance with
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its terms insofar as the laws of Switzerland are concerned, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting creditors'
rights and to general equity principles;
(vii) The issue and sale of the Securities by the Company,
the compliance by the Company with all of the provisions of the Securities,
the Indenture, this Agreement and any applicable Terms Agreement and the
consummation by the Company of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, any
material indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company is then
a party or by which the Company is then bound or to which any of the
property or assets of the Company is then subject, nor will such action
result in any violation of the provisions of the Articles of Association of
the Company as then in effect or any statute, or any order, rule or
regulation known to such counsel of any court or governmental agency or
body having jurisdiction over the Company or any of its properties, in each
case as then in effect (it being understood that, in the case of any
opinion to be delivered at a Time of Delivery, the term "Securities" as
used in this paragraph (vii) shall mean the Securities to be delivered at
such time);
(viii) No consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency
or body of Switzerland is required for the issue and sale of the Securities
in accordance with this Agreement or the consummation by the Company of the
other transactions contemplated by this Agreement, any applicable Terms
Agreement, the Securities or the Indenture, except such consents,
approvals, authorizations, registrations or qualifications that have been
obtained or made (it being understood that, in the case of any opinion to
be delivered at a Time of Delivery, the term "Securities" as used in this
paragraph (viii) shall mean the Securities to be delivered at such time);
(ix) All acts, matters and things required by the applicable
laws of Switzerland to be performed, fulfilled or done before the issue of
the Securities to render the obligations undertaken by the Company pursuant
to the Securities, the Indenture, this Agreement and any applicable Terms
Agreement valid and binding insofar as the laws of Switzerland are
concerned have been performed, fulfilled and done in due and strict
compliance with all such laws;
(x) Under the circumstances of the offer and sale of the
Securities in the manner contemplated by this Agreement, any applicable
Terms Agreement and the Indenture, no ad valorem stamp duties or similar
taxes are payable in Switzerland on the Securities, this Agreement, any
applicable Terms Agreement or the Indenture or in connection with the
observance of the obligations under them and no taxes, levies, imposts or
charges are required by the laws of Switzerland to be deducted or withheld
from any payment by the Company under this Agreement, any applicable Terms
Agreement, the Indenture or the Securities;
(xi) A judgment in respect of this Agreement, any Terms
Agreement, the Indenture or the Securities enforceable against the Company
in New York will give rise to a cause of action in a court in Switzerland
which action will enable the person in whose favor the foreign judgment has
been rendered to obtain a corresponding judgment in such court in
Switzerland without re-examination or relitigation of any matter
adjudicated in the foreign judgment, except to the extent that such
judgment is against public policy in Switzerland (and such counsel is not
aware of any such policy which would prevent recognition of such a
judgment);
(xii) The Agents will be entitled to have access as
plaintiff to appropriate courts within Switzerland for the enforcement of
rights against the Company under, and to the extent provided in, this
Agreement and any applicable Terms Agreement and such courts would give
effect to the choice of New York law as the proper law of this Agreement
and any applicable Terms Agreement;
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(xiii) There are no applicable laws of Switzerland that
would limit the ability of the Company to submit to the non-exclusive
jurisdiction of any federal or state court sitting in New York City or to
waive any objection that it may now or hereafter have to the laying of
venue of any suit, action or proceeding brought in such a court or any
claim in such a court has been brought in an inconvenient forum and the
submission by the Company under this Agreement, any applicable Terms
Agreement, the Indenture or the Securities to the jurisdiction of such
courts is valid and binding on the Company;
(xiv) This Agreement, any applicable Terms Agreement, the
Indenture and the Securities may be enforced against the Company in the
courts of Switzerland without any express submission to any such
jurisdiction, and, if action were taken in respect of any of this
Agreement, any applicable Terms Agreement, the Indenture or the Securities
before such courts, such courts would recognize and give effect to the
provisions therein whereby they are to be governed by and construed in
accordance with New York law (except as otherwise stated therein);
(xv) The Company is not immune from suit in any relevant
court of Switzerland;
(xvi) A judgement in a foreign currency would, for the
purpose of enforcement, be converted to Swiss francs on the basis of the
rate of exchange prevailing on the date of judgement;
(xvii) It is not necessary under the laws of Switzerland in
order to enable any person to enforce its rights under this Agreement, any
applicable Terms Agreement, the Indenture or the Securities that such
person be licensed, qualified, resident or otherwise qualified to carry on
business in Switzerland;
(xviii) No exchange control authorization or other
authorization, approval, consent or license of any governmental authority or
agency of Switzerland is required for the payment by the Company of any
amounts in currencies other than Swiss francs pursuant to the terms of the
Securities; and
(xvi) The statements which appear in the Prospectus on
page __ in connection with the enforceability in Switzerland of civil
liabilities predicated upon the Federal securities laws of the United
States, pages ____ of the Prospectus dealing with the possible effect on the
Holders of Securities of Switzerland taxation and other fiscal legislation,
and Item 14 of the Registration Statement dealing with the indemnification
of directors and officers of the Company are accurately presented.
In rendering each such opinion, such counsel may rely on information obtained
from public officials, officers of the Company and other sources believed by
such counsel to be responsible, and may, without limiting any other assumption
or qualification which may be contained in their opinion, assume that the
Indenture, this Agreement and any applicable Terms Agreement have been duly
authorized, executed and delivered by the parties thereto (other than the
Company), that the Securities conform to the specimens thereof examined by them,
and that the signatures on all documents examined by them are genuine,
assumptions which such counsel have not independently verified;
(c) Xxxxxxxx & Xxxxxxxx, United States counsel for the Company, shall
have furnished to such Agent such opinion or opinions, dated the Commencement
Date and each applicable date referred to in Section 4(i) hereof that is on or
prior to such Solicitation Time or Time of delivery, as the case may be, in form
and substance reasonably satisfactory to you, to the effect that:
(i)Assuming the Indenture has been duly authorized, executed
and delivered by the Company insofar as the laws of Switzerland are
concerned, the Indenture has been duly executed and delivered by the
Company, has been duly qualified under the Trust Indenture Act and
constitutes a valid and legally binding obligation of the Company,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles;
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(ii) When the series of Medium Term Notes, Series A, has
been duly authorized and established in conformity with the Indenture and,
when the terms of a particular Security and of its issuance and sale have
been duly authorized by all necessary corporate action in conformity with
the Indenture, and such Security has been duly prepared, executed,
authenticated and issued in accordance with the Indenture and delivered
against payment in accordance with this Agreement or any applicable Terms
Agreement, assuming such Security has been duly authorized, executed and
delivered by the Company insofar as the laws of Switzerland are concerned,
such Security will constitute a valid and legally binding obligation of the
Company enforceable in accordance with its terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and to general equity principles;
(iii) Assuming this Agreement and any applicable Terms
Agreement have been duly authorized, executed and delivered by the Company
insofar as the laws of Switzerland are concerned, this Agreement and such
applicable Terms Agreement have been duly executed and delivered by the
Company;
(iv) All regulatory consents, authorizations, approvals and
filings required to be obtained or made by the Company on or prior to the
date hereof under the Federal laws of the United States and the laws of the
State of New York for the execution and delivery of the Indenture and the
issuance, sale and delivery of the Securities by the Company or through the
Agents in accordance with the terms of this Agreement or any applicable
Terms Agreement have been obtained or made provided, however, that such
counsel need not express any opinion with respect to state securities laws;
(v) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment company" as
such term is defined in the Investment Company Act;
(vi) Such counsel reviewed the Registration Statement and
the Prospectus, participated in discussions with representatives of the
Company, its accountants and its Swiss counsel, and advised the Company as
to the requirements of the Act and the applicable rules and regulations
thereunder; between the effectiveness of the Registration Statement and
time of delivery of such letter, such counsel participated in further
discussions with representatives of the Company, their accountants and
their Swiss counsel regarding the contents of certain portions of the
Prospectus and certain related matters and reviewed certificates of certain
officers of the Company and a letter addressed to the Agent from the
independent accountants of the Company; on the basis of the information
that such counsel gained in the course of the performance of such services,
considered in the light of their understanding of the applicable law and
the experience they have gained through their practice under the Act, such
counsel confirms to the Agents that, in their opinion the Registration
Statement as of the effective date, and the Prospectus, as of the date of
the Prospectus, appeared on their face to be appropriately responsive to
the requirements of the Act, the Trust Indenture Act and the applicable
rules and regulations of the Commission thereunder; and that nothing that
came to the attention of such counsel in the course of such review has
caused them to believe that the Registration Statement, as of its effective
date, contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, or that Prospectus, as of the date of
the Prospectus, contained any untrue statement of material fact or omitted
to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. In rendering the letter pursuant to this clause (vi), such
counsel may state that the limitations inherent in the independent
verification of factual matters and the character of determinations
involved in the registration process are such, however, that they do not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or Prospectus except for
those made under the captions "Description of Notes We May Offer" and "Plan
of Distribution" in the Prospectus, in each case insofar as they relate to
provisions, therein described, of the Securities, the Indenture under which
the Securities
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are to be issued and the Distribution Agreement relating to the Securities,
and except for those made under the caption "U.S. Tax Considerations", in
the Prospectus, insofar as they relate to provisions of U.S. Federal income
tax law therein described; and that they do not express any opinion or
belief as to the financial statements or as to other financial data derived
from accounting records contained in the Registration Statement or the
Prospectus, or as to the statement of eligibility of the Trustee under the
Indenture; and that their letter is furnished as counsel for the Company and
is solely for the benefit of the Company.
(d) Not later than 10:00 a.m., New York City time, on the Commencement
Date and on each applicable date referred to in Section 4(j) hereof that is on
or prior to such Solicitation Time or Time of Delivery, as the case may be, the
independent certified public accountants who have certified the financial
statements of the Company and its subsidiaries included in the Registration
Statement shall have furnished to such Agent a letter, dated the Commencement
Date or such applicable date, as the case may be, in form and substance
satisfactory to such Agent, to the effect set forth in Annex III hereto;
(e) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Prospectus as amended or supplemented prior to the date of the Pricing
Supplement relating to the Securities to be delivered at the relevant Time of
Delivery any loss or interference with its business from fire, explosion, flood
or other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus as amended or supplemented prior to the
date of the Pricing Supplement relating to the Securities to be delivered at the
relevant Time of Delivery and (ii) since the respective dates as of which
information is given in the Prospectus as amended or supplemented prior to the
date of the Pricing Supplement relating to the Securities to be delivered at the
relevant Time of Delivery there shall not have been any change in the capital
stock, or long-term debt of the Company or any of its subsidiaries or any
change, or any development involving a prospective change, in or affecting the
general affairs, management, financial position, or stockholders' equity, or
results of operations of the Company and its subsidiaries, otherwise than as set
forth or contemplated in the Prospectus as amended or supplemented prior to the
date of the Pricing Supplement relating to the Securities to be delivered at the
relevant Time of Delivery, the effect of which, in any such case described in
clause (i) or (ii), is in the judgment of such Agent so material and adverse as
to make it impracticable or inadvisable to proceed with the solicitation by such
Agent of offers to purchase Securities from the Company or the purchase by such
Agent of Securities from the Company as principal, as the case may be, on the
terms and in the manner contemplated in the Prospectus as amended or
supplemented prior to the date of the Pricing Supplement relating to the
Securities to be delivered at the relevant Time of Delivery;
(f) On or after the date hereof or on any applicable Terms Agreement
(i) no downgrading shall have occurred in the rating accorded the Company's debt
securities by any "nationally recognized statistical rating organization", as
that term is defined by the Commission for purposes of Rule 436(g)(2) under the
Act, and (ii) no such organization shall have publicly announced that it has
under surveillance or review, with possible negative implications, its rating of
any of the Company's debt securities;
(g) On or after the date hereof or on any applicable Terms Agreement
there shall not have occurred any of the following: (i) a suspension or material
limitation in trading in securities generally on the SWX Swiss Stock Exchange or
the New York Stock Exchange; (ii) a suspension or material limitation in trading
in the Company's securities on the SWX Swiss Stock Exchange or the New York
Stock Exchange; (iii) a general moratorium on commercial banking activities in
New York declared by either Federal or New York State authorities, or in
Switzerland declared by Swiss authorities; or (iv) the outbreak or escalation of
hostilities involving Switzerland or the United States or the declaration by
Switzerland or the United States of a national emergency or war, if the effect
of any such event specified in this clause (iv) in the reasonable judgment of
such
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Agent makes it impracticable or inadvisable to proceed with the solicitation of
offers to purchase Securities or the purchase of the Securities from the Company
as principal pursuant to the applicable Terms Agreement or otherwise, as the
case may be, on the terms and in the manner contemplated in the Prospectus;
(h) (i) With respect to any Security denominated in a currency other
than the U.S. dollar, more than one currency or a composite currency or any
Security the principal or interest of which is indexed to such currency,
currencies or composite currency, there shall not have occurred a suspension or
material limitation in foreign exchange trading in such currency, currencies or
composite currency by a major international bank, a general moratorium on
commercial banking activities in the country or countries issuing such currency,
currencies or composite currency, the outbreak or escalation of hostilities
involving, the occurrence of any material adverse change in the existing
financial, political or economic conditions of, or the declaration of war or a
national emergency by, the country or countries issuing such currency,
currencies or composite currency or the imposition or proposal of exchange
controls by any governmental authority in the country or countries issuing such
currency, currencies or composite currency; and (ii) with respect to any
Security linked to the securities of an issuer other than the Company,
additional conditions comparable to those set forth in Sections 6(e), 6(f) and
6(g) shall have been satisfied with respect to such issuer (with such additional
conditions being identical to those in Sections 6(e), (f) and (g), except that,
for this purpose, all references to the Company in such sections shall be deemed
to mean such other issuer and, if the principal trading market for such other
issuer's securities is not the New York Stock Exchange, the reference to the New
York Stock Exchange in Section 6(g)(i) shall be deemed to mean either the New
York Stock Exchange or such principal trading market and in Section 6(g)(ii)
shall be deemed to mean only such principal trading market), it being understood
that nothing in this clause (ii) shall limit or otherwise affect conditions in
Sections 6(e), (f) and (g), which shall apply in addition to any conditions
applicable pursuant to this clause (ii)); and
(i) The Company shall have furnished or caused to be furnished
to such Agent certificates of officers of the Company dated the Commencement
Date and each applicable date referred to in Section 4(k) hereof that is on or
prior to such Solicitation Time or Time of Delivery, as the case may be, in such
form and executed by such officers of the Company as shall be satisfactory to
such Agent, as to the accuracy of the representations and warranties of the
Company herein at and as of the Commencement Date or such applicable date, as
the case may be, as to the performance by the Company of all of its obligations
hereunder to be performed at or prior to the Commencement Date or such
applicable date, as the case may be, as to the matters set forth in subsections
(a) and (e) of this Section 6, and as to such other matters as such Agent may
reasonably request.
(j) There is no outstanding material breach of any obligations
of the Company under the relevant Securities or this Agreement which has not
been waived by the relevant Agent on or prior to the Solicitation Time or Time
of Delivery of the relevant Securities.
(k) In the case of Securities that are intended to be listed,
the relevant stock exchange has agreed to list such Securities.
(l) For the issue and sale of Securities denominated in a
currency other than U.S. dollars, all necessary approvals have been obtained
from the relevant central bank or other fiscal, monetary, regulatory or other
authority.
7. (a) The Company will indemnify and hold harmless each Agent against
any losses, claims, damages or liabilities, joint or several, to which such
Agent may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon an untrue statement or alleged untrue statement of a material
fact contained in any Preliminary Prospectus, the Registration
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Statement, the Prospectus, the Prospectus as amended or supplemented or any
other prospectus relating to the Securities, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse such Agent for any
legal or other expenses reasonably incurred by it in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement,
the Prospectus, the Prospectus as amended or supplemented or any other
prospectus relating to the Securities, or any such amendment or supplement, in
reliance upon and in conformity with written information furnished to the
Company by such Agent expressly for use therein.
(b) Each Agent will indemnify and hold harmless the Company against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
in each case to the extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement, the Prospectus, the
Prospectus as amended or supplemented or any other prospectus relating to the
Securities, or any such amendment or supplement, in reliance upon and in
conformity with written information furnished to the Company by such Agent
expressly for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the Company in connection with investigating or
defending any such action or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection, unless the indemnifying party shall have
been materially prejudiced by the failure to give such notice. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof other
than reasonable costs of investigation. No indemnifying party shall, without the
written consent of the indemnified party, effect the settlement or compromise
of, or consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought under this Section 7 (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to, or an admission of, fault, culpability or a failure
to act, by or on behalf of any indemnified party.
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(d) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company on the one hand and each Agent on the
other from the offering of the Securities to which such loss, claim, damage or
liability (or action in respect thereof) relates. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company on the one hand and each Agent on the other in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and each Agent on the other shall be deemed to be in the same
proportion as the total net proceeds from the sale of Securities (before
deducting expenses) received by the Company bear to the total commissions or
discounts received by such Agent from the Company in respect thereof. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading relates to
information supplied by the Company on the one hand or by any Agent on the other
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission. The Company and
each Agent agree that it would not be just and equitable if contribution
pursuant to this subsection (d) were determined by per capita allocation (even
if all Agents were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable considerations
referred to above in this subsection (d). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities (or
actions in respect thereof) referred to above in this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this subsection (d), an Agent shall
not be required to contribute any amount in excess of the amount by which the
total public offering price at which the Securities purchased by or through it
were sold exceeds the amount of any damages which such Agent has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission
or alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
obligations of each of the Agents under this subsection (d) to contribute are
several in proportion to the respective purchases made by or through it to which
such loss, claim, damage or liability (or action in respect thereof) relates and
are not joint.
(e) The obligations of the Company under this Section 7 shall
be in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
any Agent within the meaning of the Act; and the obligations of each Agent under
this Section 7 shall be in addition to any liability which such Agent may
otherwise have and shall extend, upon the same terms and conditions, to each
officer and director of the Company and to each person, if any, who controls the
Company within the meaning of the Act.
8. Each Agent, in soliciting offers to purchase Securities from the
Company and in performing the other obligations of such Agent hereunder (other
than in respect of any purchase by an Agent as principal, pursuant to a Terms
Agreement or otherwise), is acting solely as agent for the Company and not as
principal. Each Agent will
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make reasonable efforts to assist the Company in obtaining performance by each
purchaser whose offer to purchase Securities from the Company was solicited by
such Agent and has been accepted by the Company, but such Agent shall not have
any liability to the Company in the event such purchase is not consummated for
any reason. If the Company shall default on its obligation to deliver Securities
to a purchaser whose offer it has accepted, the Company shall (i) hold each
Agent harmless against any loss, claim or damage arising from or as a result of
such default by the Company and (ii) notwithstanding such default, pay to the
Agent that solicited such offer any commission to which it would be entitled in
connection with such sale.
9. The respective indemnities, agreements, representations, warranties
and other statements by any Agent and the Company set forth in or made pursuant
to this Agreement shall remain in full force and effect regardless of any
investigation (or any statement as to the results thereof) made by or on behalf
of any Agent or any controlling person of any Agent, or the Company, or any
officer or director or any controlling person of the Company, and shall survive
each delivery of and payment for any of the Securities.
10. (a) The provisions of this Agreement relating to the solicitation
of offers to purchase Securities from the Company may be suspended or terminated
at any time by the Company as to any Agent or by any Agent as to such Agent upon
the giving of written notice of such suspension or termination to such Agent or
the Company, as the case may be. In the event of such suspension or termination
with respect to any Agent, (i) this Agreement shall remain in full force and
effect with respect to any Agent as to which such suspension or termination has
not occurred, (ii) this Agreement shall remain in full force and effect with
respect to the rights and obligations of any party which have previously accrued
or which relate to Securities which are already issued, agreed to be issued or
the subject of a pending offer at the time of such suspension or termination
(including all Securities that may be the subject of a Secondary Market
Transaction at any time during the Secondary Transactions Period) and (z) in any
event, this Agreement shall remain in full force and effect insofar as the
fourth paragraph of Section 2(a) and Sections 4(d), 4(e), 5, 7, 8 and 9 hereof
are concerned.
(b) The Company, in its sole discretion, may appoint one or more
additional parties to act as Agents hereunder from time to time. Any such
appointment shall be made in a writing signed by the Company and the party so
appointed. Such appointment shall become effective in accordance with its terms
after the execution and delivery of such writing by the Company and such other
party. When such appointment is effective, such other party shall be deemed to
be one of the Agents referred to in, and to have the rights and obligations of
an Agent under, this Agreement, subject to the terms and conditions of such
appointment. The Company shall deliver a copy of such appointment to each other
Agent promptly after it becomes effective.
11. Except as otherwise specifically provided herein or in the
Administrative Procedure, all statements, requests, notices and advices
hereunder shall be in writing, or by telephone if promptly confirmed in writing,
and shall be sufficient in all respects when delivered or sent by facsimile
transmission, personal delivery or registered mail to UBS Warburg LLC, 000
Xxxxxxxxxx Xxxxxxxxx, Xxxxxxxx, XX 00000, Facsimile Transmission No. (203)
719-6097, Attention: _________________; if to any Agent other than UBS Warburg
LLC, shall be sufficient in all respects when delivered or sent by facsimile
transmission if to UBS Warburg LLC, or registered mail to the facsimile number
or address provided by such Agent to the Company in the document appointing such
Agent as an Agent under this Agreement; and if to the Company, shall be
sufficient in all respects when delivered or sent by facsimile transmission,
personal delivery or registered mail to UBS AG, 299 Park Avenue, New York, New
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York 10171, Facsimile No. ____________, Attention:____________. Any such
statements, requests, notices or advices shall take effect upon receipt thereof.
12. (a) This Agreement and any Terms Agreement shall be binding upon,
and inure solely to the benefit of, each Agent and the Company and, to the
extent provided in Sections 7, 8 and 9 hereof, the officers and directors of the
Company and any person who controls any Agent or the Company, and their
respective personal representatives, successors and assigns, and no other person
shall acquire or have any right under or by virtue of this Agreement or any
Terms Agreement. No purchaser of any of the Securities through or from any Agent
hereunder shall be deemed a successor or assign by reason merely of such
purchase.
(b) The Agents may assign or transfer their rights or
obligations under this Agreement with the prior written consent of the Company.
If the Agents assign their rights or transfer their obligations as provided in
this Section, the relevant assignee or transferee shall be treated as if it were
a party to this Agreement with effect from the date on which such assignment or
transfer takes effect; provided that any transfer shall only become effective
when the Company has received an undertaking from the transferee to be bound by
this Agreement and to perform the obligations transferred to it. Such assignment
or transfer shall not affect any rights or obligations (including, but not
limited to, those arising under Sections 6, 7 or 10) that have accrued at the
time of assignment or transfer or that accrue thereafter to the Agents in
relation to any act or omission or alleged act or omission that occurred prior
to such assignment or transfer.
13. Time shall be of the essence in this Agreement and any Terms
Agreement. As used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
14. (a) THIS AGREEMENT AND ANY TERMS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(b) Each party hereto irrevocably submits to the exclusive
jurisdiction of any U.S. federal or New York State court sitting in New York
City, the Borough of Manhattan, for the purpose of any suit, action or
proceeding against it arising out of or related to this Agreement
("Proceedings"). Each party hereto irrevocably waives, to the fullest extent
permitted by law, any objection that it may have to the laying of the venue of
any such Proceedings brought in such a court and any claim that any such
Proceedings have been brought in an inconvenient forum. Each party hereto agrees
that final judgment in any Proceedings brought in such a court shall be
conclusive and binding upon such party and may be enforced in any court to the
jurisdiction of which it is subject by a suit upon such judgment; provided that
service of process is effected upon such party in the manner specified below or
as otherwise permitted by law.
(c) As long as any Security remains outstanding, the Company
shall at all times have an authorized agent in New York City, the Borough of
Manhattan, upon whom process may be served in connection with any Proceedings.
Service of process upon such agent in accordance with the then applicable law
and written notice of such service mailed or delivered to the Company shall, to
the fullest extent permitted by applicable law, be deemed in every respect
effective service of process upon the Company in any Proceedings. The Company
hereby appoints ___________________, with offices at 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: __________, as its agent for such purposes in New
York City, the Borough of Manhattan, and ___________________ hereby accepts such
appointment. The Company covenants and agrees that (i) service of process in any
Proceedings may be made upon it at such offices of such agent (or such other
address in New York City, the Borough of Manhattan,
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or at the office of any other authorized agent as the Company may designate by
written notice to the Agent) and (ii) prior to such termination of such agency
for any reason, it will so appoint a successor thereto as agent
(d) Each party hereto hereby to the fullest extent permitted by
law irrevocably waives and agrees not to plead any immunity from the
jurisdiction of any U.S. federal or New York State court sitting in New York
City, the Borough of Manhattan, to which it may be or become entitled (including
sovereign immunity and immunity from prejudgment attachment, post judgment
attachment and execution) in any Proceeding.
(e) The provisions of this Section 14 shall survive any
termination of this Agreement, in whole or in part.
15. This Agreement and any Terms Agreement may be executed by any one
or more of the parties hereto and thereto in any number of counterparts, each of
which shall be an original, but all of such respective counterparts shall
together constitute one and the same instrument.
16. Any amounts payable to an Agent hereunder shall be payable free and
clear of, and without deduction or withholding for or an account of, any and all
present and future taxes, assessments or other governmental charges now or
hereafter imposed or assessed by Switzerland or any political subdivision or
taxing authority thereof or therein ("Foreign Taxes"). If Foreign Taxes are so
levied or imposed, the Company agrees to pay such additional amounts
("Additional Amounts") as may be necessary so that the amount due under this
Agreement after withholding or deduction for or on an account of Foreign Taxes
will not be less that the amount provided for herein; provided, however, the
Company will not be required to make any payment of Additional Amounts to an
Agent for or on account of (a) any such Foreign Taxes which would not have been
so imposed but for the existence of an of any present or former connection
between such Agent (or between a member or shareholder of such Agent) and
Switzerland (or any political subdivisions or taxing authority thereof or
therein) including, without limitation, such Agent (or such member or
shareholder) being or having been a resident thereof or being or having been
engaged in a trade or business or present therein or having, or having had, a
permanent establishment therein or (b) any Foreign Taxes which would not have
been imposed but for the failure to comply with certification, information or
other reporting requirements concerning the nationality, residence or identify
of the Agent, if such compliance is required by statute or by regulation of
Switzerland or of any political subdivisions or taxing authority thereof or
therein as a precondition to relief or exemption from such Foreign Taxes.
17. If, for the purposes of obtaining a judgment in any court it is
necessary to convert a sum due hereunder into any currency other than United
States dollars, the parties hereto agree, to the fullest extent that they may
effectively do so, that the rate of exchange used shall be the rate at which in
accordance with normal banking procedures an Agent or the Company, as the case
may be, could purchase United States dollars with such other currency in the
Borough of Manhattan, City and State of New York on the business day preceding
that on which final judgment is given. If, on the first business day following
receipt by such Agent or the Company, as the case may be, of any sum adjudged to
be so due in such other currency, on which (and only to the extent that) such
Agent or the Company, as the case may be, may in accordance with normal banking
procedures purchase United States dollars which the Company or Agent, as the
case may be, could purchase are less than the sum originally due to the Agent or
the Company, as the case may be, hereunder, then the paying party agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify the
party being paid for such difference. If the Untied States dollars which the
Company or the Agent, as the case may be, could purchase on such first business
day are greater than the sum originally due hereunder, then the party being paid
agrees to pay the paying party an amount equal to the excess of the Untied
States dollars over the sum originally due hereunder.
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If the foregoing is in accordance with your understanding, please sign
and return to us four counterparts hereof, whereupon this letter and the
acceptance by you thereof shall constitute a binding agreement between the
Company and you in accordance with its terms.
Very truly yours,
UBS AG
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
Accepted in New York, New York,
as of the date hereof:
--------------------------------
(UBS Warburg LLC)
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ANNEX I
UBS AG
$2,000,000,000
MEDIUM TERM NOTES, SERIES A
TERMS AGREEMENT
, 2000
UBS Warburg LLC,
000 Xxxxxxxxxx Xxxxxxxxx,
Xxxxxxxx, XX 00000.
[INSERT NAMES OF ANY OTHER PURCHASERS]
Ladies and Gentlemen:
UBS AG (the "Company") proposes, subject to the terms and conditions
stated herein and in the Distribution Agreement, dated________, 2000 (the
"Distribution Agreement"), between the Company on the one hand and UBS Warburg
LLC and any other party acting as Agent thereunder on the other, to issue and
sell to you the securities specified in the Schedule hereto (the "Purchased
Securities"). Each of the provisions of the Distribution Agreement not
specifically related to the solicitation by the Agents, as agents of the
Company, of offers to purchase Securities is incorporated herein by reference in
its entirety, and shall be deemed to be part of this Terms Agreement to the same
extent as if such provisions had been set forth in full herein. Nothing
contained herein or in the Distribution Agreement shall make any party hereto an
agent of the Company or make such party subject to the provisions therein
relating to the solicitation of offers to purchase Securities from the Company,
solely by virtue of its execution of this Terms Agreement. Each of the
representations and warranties set forth therein shall be deemed to have been
made at and as of the date of this Terms Agreement, except that each
representation and warranty in Section 1 of the Distribution Agreement which
makes reference to the Prospectus shall be deemed to be a representation and
warranty as of the date of the Distribution Agreement in relation to the
Prospectus (as therein defined), and also a representation and warranty as of
the date of this Terms Agreement in relation to the Prospectus as amended and
supplemented to relate to the Purchased Securities.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Purchased Securities, in the
form heretofore delivered to you is now proposed to be filed with the
Commission.
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Subject to the terms and conditions set forth herein and in the
Distribution Agreement incorporated herein by reference, the Company agrees to
issue and sell to you and you agree to purchase from the Company the Purchased
Securities, at the time and place, in the principal amount and at the purchase
price set forth in the Schedule hereto.
If the foregoing is in accordance with your understanding, please sign
and return to us ...... counterparts hereof, and upon acceptance hereof by you
this letter and such acceptance hereof, including those provisions of the
Distribution Agreement incorporated herein by reference, shall constitute a
binding agreement between you and the Company
Very truly yours,
UBS AG
By:
--------------------------------
Name:
Title:
By:
--------------------------------
Name:
Title:
Accepted in New York, New York,
as of the date hereof:
-------------------------------
(UBS Warburg LLC)
[Name(s) of other purchasers]
By:
----------------------------
Name:
Title:
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SCHEDULE TO ANNEX I
Title of Purchased Securities:
Debt Securities
Aggregate Principal Amount:
[$ .................... or units of other Specified Currency]
[Price to Public:]
Purchase Price by UBS Warburg LLC [Name(s) of other purchasers]:
% of the principal amount of the Purchased Securities [, plus accrued
interest from ............... to ...............]
[and accrued amortization, if any, from ................. to ................]
Method of and Specified Funds for Payment of Purchase Price:
[By certified or official bank check or checks, payable to the order of
the Company, in [[New York] Clearing House] [immediately available] funds]
[By wire transfer to a bank account specified by the Company in [next
day] [immediately available] funds] Indenture:
Indenture, dated as of ....................., 2000, between the Company
and ____________________, as Trustee Time of Delivery:
Closing Location for Delivery of Securities:
Maturity:
Interest Rate:
[ %] [Zero Coupon] [Describe applicable floating rate provisions]
Interest Payment Dates:
[months and dates]
Principal repayment terms: [Describe applicable terms] Documents to be
Delivered:
The following documents referred to in the Distribution Agreement shall
be delivered as a condition to the Closing:
[(1) The opinion or opinions of counsel to the Agents referred to in
Section 4(h).]
[(2) The opinions of Swiss and United States counsel to the Company
referred to in Sections 4(i) and (j).]
[(3) The accountants' letter referred to in Section 4(k).]
[(4) The officers' certificate referred to in Section 4(l).]
Other Provisions (including Syndicate Provisions, if applicable):
I-1
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ANNEX II
UBS AG
ADMINISTRATIVE PROCEDURE
This Administrative Procedure relates to the Securities defined in the
Distribution Agreement, dated ________, 2000 (the "Distribution Agreement"),
between UBS AG, a corporation organized under the laws of Switzerland (the
"Company") on the one hand and UBS Warburg LLC and any other party acting as
Agent thereunder, on the other, to which this Administrative Procedure is
attached as Annex II. Defined terms used herein and not defined herein shall
have the meanings given such terms in the Distribution Agreement, the Prospectus
as amended or supplemented, the Indenture or the Securities. To the extent the
procedures set forth below conflict with the provisions of the Securities, the
Indenture or the Distribution Agreement, the relevant provisions of the
Securities, the Indenture and the Distribution Agreement shall control.
The procedures to be followed with respect to the settlement of sales of
Securities directly by the Company to purchasers solicited by an Agent, as
agent, are set forth below. The terms and settlement details related to a
purchase of Securities by an Agent, as principal, from the Company will be set
forth in a Terms Agreement pursuant to the Distribution Agreement, unless the
Company and such Agent otherwise agree as provided in Section 2(b) of the
Distribution Agreement, in which case the procedures to be followed in respect
of the settlement of such sale will be as set forth below. An Agent, in relation
to a purchase of a Security by a purchaser solicited by such Agent, is referred
to herein as the "Selling Agent" and, in relation to a purchase of a Security by
such Agent as principal other than pursuant to a Terms Agreement, as the
"Purchasing Agent".
The Company will advise each Agent in writing of those persons with whom
such Agent is to communicate regarding offers to purchase Securities and the
related settlement details.
Each Security will be issued only in fully registered form and will be
represented by either a global security (a "Global Security") delivered to the
Trustee, as agent for The Depository Trust Company (the "Depositary"), and
recorded in the book-entry system maintained by the Depositary (a "Book-Entry
Security"), or a certificate issued in definitive form (a "Certificated
Security") delivered to a person designated by an Agent, as set forth in the
applicable Pricing Supplement. An owner of a Book-Entry Security will not be
entitled to receive a certificate representing such a Security, except as
provided in the Indenture.
Book-Entry Securities will be issued in accordance with the
Administrative Procedure set forth in Part I hereof, and Certificated Securities
will be issued in accordance with the Administrative Procedure set forth in Part
II hereof.
PART I: ADMINISTRATIVE PROCEDURE FOR BOOK-ENTRY SECURITIES
In connection with the qualification of the Book-Entry Securities for
eligibility in the book-entry system maintained by the Depositary, the Trustee
will perform the custodial, document control and administrative functions
described below, in accordance with its respective obligations under a Letter of
Representation from the Company and the Trustee to the Depositary, dated the
date of the Distribution Agreement, and a Medium-Term Note Certificate Agreement
between the Trustee and the Depositary, dated as of _________ (the "Certificate
Agreement"), and its obligations as a participant in the Depositary, including
the Depositary's Same-Day Funds Settlement System ("SDFS").
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Posting Rates by the Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Book-Entry Securities that
may be sold as a result of the solicitation of offers by an Agent. The Company
may establish a fixed set of interest rates and maturities for an offering
period ("posting"). If the Company decides to change already posted rates, it
will promptly advise the Agents to suspend solicitation of offers until the new
posted rates have been established with the Agents.
Acceptance of Offers by the Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Book-Entry Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Book-Entry Securities as a
Purchasing Agent. The Company will have the sole right to accept offers to
purchase Book-Entry Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Selling Agent or Purchasing Agent,
as the case may be, of its acceptance or rejection of an offer to purchase
Book-Entry Securities. If the Company accepts an offer to purchase Book-Entry
Securities, it will confirm such acceptance in writing to the Selling Agent or
Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to the Company by Agent and Settlement
Procedures:
A. After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate promptly, but in no event
later than the time set forth under "Settlement Procedure Timetable" below, the
following details of the terms of such offer (the "Sale Information") to the
Company by telephone (confirmed in writing) or by facsimile transmission or
other acceptable written means:
(1) Principal Amount of Book-Entry Securities to be purchased;
(2) If a Fixed Rate Book-Entry Security, the interest rate and
initial interest payment date;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other
than U.S. dollars, the applicable Exchange Rate for such
Specified Currency (it being understood that currently the
Depositary accepts deposits of Global Securities denominated
in U.S. dollars only);
(7) The Exchange Rate Agent and the Exchange Rate Determination
Date, if applicable;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's discount, as
the case may be;
(10) Net Proceeds to the Company;
(11) If a redeemable or repayable Book-Entry Security, such of the
following as are applicable:
(i) Redemption Commencement Date,
(ii) Initial Redemption Price (% of par),
(iii) Amount (% of par) that the Redemption Price shall
decline (but not below par) on each anniversary of
the Redemption Commencement Date,
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(iv) Repayment date, and
(v) Repayment price;
(12) If an Original Issue Discount Book-Entry Security, the total
amount of Original Issue Discount, the yield to Maturity and
the initial accrual period of Original Issue Discount;
(13) If a Floating Rate Book-Entry Security, such of the following
as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity and Index Currency,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Base Rate,
(vii) Initial Interest Rate,
(viii) Interest Reset Dates,
(ix) Calculation Dates,
(x) Interest Determination Dates,
(xi) Interest Payment Dates,
(xii) Regular Record Dates, and
(xiii) Calculation Agent;
(14) Name, address and taxpayer identification number of the
registered Holder(s);
(15) Denomination of certificates to be delivered at settlement;
(16) Book-Entry Security or Certificated Security; and
(17) Selling Agent or Purchasing Agent.
B. After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to the Trustee by facsimile transmission or other acceptable written
means. The Trustee will assign a CUSIP number to the Global Security from a list
of CUSIP numbers previously delivered to the Trustee by the Company representing
such Book-Entry Security and then advise the Company and the Selling Agent or
Purchasing Agent, as the case may be, of such CUSIP number.
C. The Trustee will enter a pending deposit message through the
Depositary's Participant Terminal System, providing the following settlement
information to the Depositary, and the Depositary shall forward such information
to such Agent and Standard & Poor's Ratings Group (or such other entity that
assigns CUSIP numbers or any other identification designations being used for
the relevant Securities):
(1) The applicable Sale Information;
(2) CUSIP number of the Global Security representing such
Book-Entry Security;
(3) Whether such Global Security will represent any other
Book-Entry
Security (to the extent known at such time);
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(4) Number of the participant account maintained by the Depositary
on behalf of the Selling Agent or Purchasing Agent, as the
case may be;
(5) The interest payment period; and
(6) Initial Interest Payment Date for such Book-Entry Security,
number of days by which such date succeeds the record date for
the Depositary's purposes (which in the case of Floating Rate
Securities which reset daily or weekly shall be the date five
calendar days immediately preceding the applicable Interest
Payment Date and in the case of all other Book-Entry
Securities shall be the Regular Record Date, as defined in the
Security) and, if calculable at that time, the amount of
interest payable on such Interest Payment Date.
D. The Trustee will complete and authenticate the Global Security
previously delivered by the Company representing such Book-Entry Security.
E. The Depositary will credit such Book-Entry Security to the Trustee's
participant account at the Depositary.
F. The Trustee will enter an SDFS deliver order through the
Depositary's Participant Terminal System instructing the Depositary to (i) debit
such Book-Entry Security to the Trustee's participant account and credit such
Book-Entry Security to such Agent's participant account and (ii) debit such
Agent's settlement account and credit the Trustee's settlement account for an
amount equal to the price of such Book-Entry Security less such Agent's
commission or discount, as the case may be. The entry of such a deliver order
shall constitute a representation and warranty by the Trustee to the Depositary
that (a) the Global Security representing such Book-Entry Security has been
issued and authenticated and (b) the Trustee is holding such Global Security
pursuant to the Certificate Agreement.
G. Such Agent will enter an SDFS deliver order through the Depositary's
Participant Terminal System instructing the Depositary (i) to debit such
Book-Entry Security to such Agent's participant account and credit such
Book-Entry Security to the participant accounts of the participants with respect
to such Book-Entry Security and (ii) to debit the settlement accounts of such
participants and credit the settlement account of such Agent for an amount equal
to the price of such Book-Entry Security.
H. Transfers of funds in accordance with SDFS deliver orders described
in Settlement Procedures "F" and "G" will be settled in accordance with SDFS
operating procedures in effect on the settlement date.
I. Upon confirmation of receipt of funds, the Trustee will transfer to
the account of the Company maintained at __________________________________, or
such other account as the Company may have previously specified to the Trustee,
in funds available for immediate use in the amount transferred to the Trustee in
accordance with Settlement Procedure "F".
J. Upon request, the Trustee will send to the Company a statement
setting forth the principal amount of Book-Entry Securities outstanding as of
that date under the Indenture.
K. Such Agent will confirm the purchase of such Book-Entry Security to
the purchaser either by transmitting to the participants with respect to such
Book-Entry Security a confirmation order or orders through the Depositary's
institutional delivery system or by mailing a written confirmation to such
purchaser.
L. The Depositary will, at any time, upon request of the Company or the
Trustee, promptly furnish to the Company or the Trustee a list of the names and
addresses of the participants for whom the Depositary has credited Book-Entry
Securities.
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Preparation of Prospectus or Supplement:
If the Company accepts an offer to purchase a Book-Entry Security, it
will prepare a Pricing Supplement reflecting the terms of such Book-Entry
Security and arrange to have delivered to the Selling Agent or Purchasing Agent,
as the case may be, at least ten copies of such Pricing Supplement, not later
than 5:00 p.m., New York City time, on the business day following the Trade Date
(as defined below), or if the Company and the purchaser agree to settlement on
the business day following the date of acceptance of such offer, not later than
noon, New York City time, on such date. The Company will arrange to have the
Pricing Supplements filed with the Commission not later than the close of
business of the Commission on the fifth business day (or second business day, if
such Book-Entry Security is to be sold pursuant to Rule 430A under the
Securities Act) following the date on which such Pricing Supplement is first
used.
Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Book-Entry Security
a written confirmation of the sale and delivery and payment instructions. In
addition, the Selling Agent will deliver to such purchaser or its agent the
Prospectus as amended or supplemented (including the Pricing Supplement) in
relation to such Book-Entry Security prior to or together with the earlier of
the delivery to such purchaser or its agent of (a) the confirmation of sale or
(b) the Book-Entry Security.
Date of Settlement:
The receipt by the Company of immediately available funds in payment for
a Book-Entry Security and the authentication and issuance of the Global Security
representing such Book-Entry Security shall constitute "settlement" with respect
to such Book-Entry Security. All orders of Book-Entry Securities solicited by a
Selling Agent or made by a Purchasing Agent and accepted by the Company on a
particular date (the "Trade Date") will be settled on a date (the "Settlement
Date") which is the third business day after the Trade Date pursuant to the
"Settlement Procedure Timetable" set forth below, unless the Company and the
purchaser agree to settlement on another business day which shall be no earlier
than the next business day after the Trade Date.
Settlement Procedure Timetable:
For orders of Book-Entry Securities solicited by a Selling Agent and
accepted by the Company for settlement on the third business day after the Trade
Date, Settlement Procedures "A" through "I" set forth above shall be completed
as soon as possible but not later than the respective times (New York City time)
set forth below:
SETTLEMENT
PROCEDURE TIME
--------- ----
A 5:00 p.m. on the business day following the Trade Date or 10:00 a.m. on the business
day prior to the Settlement Date, whichever is earlier
B 12:00 noon on the second business day immediately preceding the Settlement Date
C 2:00 p.m. on the second business day immediately preceding the Settlement Date
D 9:00 a.m. on the Settlement Date
E 10:00 a.m. on the Settlement Date
F-G 2:00 p.m. on the Settlement Date
H 4:45 p.m. on the Settlement Date
I 5:00 p.m. on the Settlement Date
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If the initial interest rate for a Floating Rate Book-Entry Security has
not been determined at the time that Settlement Procedure "A" is completed,
Settlement Procedures "B" and "C" shall be completed as soon as such rate has
been determined but no later than 2:00 p.m. on the second business day
immediately preceding the Settlement Date. Settlement Procedure "H" is subject
to extension in accordance with any extension of Fedwire closing deadlines and
in the other events specified in the SDFS operating procedures in effect on the
Settlement Date.
If settlement of a Book-Entry Security is rescheduled or canceled, the
Trustee, upon obtaining knowledge thereof, will deliver to the Depositary,
through the Depositary's Participation Terminal System, a cancellation message
to such effect by no later than 2:00 p.m. on the business day immediately
preceding the scheduled Settlement Date.
Failure to Settle:
If the Trustee fails to enter an SDFS deliver order with respect to a
Book-Entry Security pursuant to Settlement Procedure "F", the Trustee may
deliver to the Depositary, through the Depositary's Participant Terminal System,
as soon as practicable a withdrawal message instructing the Depositary to debit
such Book-Entry Security to the Trustee's participant account, provided that the
Trustee's participant account contains a principal amount of the Global Security
representing such Book-Entry Security that is at least equal to the principal
amount to be debited. If a withdrawal message is processed with respect to all
the Book-Entry Securities represented by a Global Security, the Trustee will
xxxx such Global Security "canceled", make appropriate entries in the Trustee's
records and send such canceled Global Security to the Company. The CUSIP number
assigned to such Global Security shall, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately reassigned. If a withdrawal message
is processed with respect to one or more, but not all, of the Book-Entry
Securities represented by a Global Security, the Trustee will exchange such
Global Security for two Global Securities, one of which shall represent such
Book-Entry Security or Securities and shall be canceled immediately after
issuance and the other of which shall represent the remaining Book-Entry
Securities previously represented by the surrendered Global Security and shall
bear the CUSIP number of the surrendered Global Security.
If the purchase price for any Book-Entry Security is not timely paid to
the participants with respect to such Book-Entry Security by the beneficial
purchaser thereof (or a person, including an indirect participant in the
Depositary, acting on behalf of such purchaser), such participants and, in turn
the Agent for such Book-Entry Security may enter deliver orders through the
Depositary's Participant Terminal System debiting such Book-Entry Security to
such participant's account and crediting such Book-Entry Security to such
Agent's account and then debiting such Book-Entry Security to such Agent's
participant account and crediting such Book-Entry Security to the Trustee's
participant account and shall notify the Company and the Trustee thereof.
Thereafter, the Trustee will (i) immediately notify the Company of such order
and the Company shall transfer to such Agent funds available for immediate use
in an amount equal to the price of such Book-Entry Security which was credited
to the account of the Company maintained at the Trustee in accordance with
Settlement Procedure I, and (ii) deliver the withdrawal message and take the
related actions described in the preceding paragraph. If such failure shall have
occurred for any reason other than default by the applicable Agent to perform
its obligations hereunder or under the Distribution Agreement, the Company will
reimburse such Agent on an equitable basis for the loss of its use of funds
during the period when the funds were credited to the account of the Company.
Notwithstanding the foregoing, upon any failure to settle with respect
to a Book-Entry Security, the Depositary may take any actions in accordance with
its SDFS operating procedures then in effect. In the event of a failure to
settle with respect to one or more, but not all, of the Book-Entry Securities to
have been represented by a Global Security, the Trustee will provide, in
accordance with Settlement Procedure "D", for the authentication and issuance of
a Global Security representing the other Book-Entry Securities to have been
represented by such
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Global Security and will make appropriate entries in its records. The Company
will, from time to time, furnish the Trustee with a sufficient quantity of
Securities.
PART II: ADMINISTRATIVE PROCEDURE FOR CERTIFICATED SECURITIES
Posting Rates by Company:
The Company and the Agents will discuss from time to time the rates of
interest per annum to be borne by and the maturity of Certificated Securities
that may be sold as a result of the solicitation of offers by an Agent. The
Company may establish a fixed set of interest rates and maturities for an
offering period ("posting"). If the Company decides to change already posted
rates, it will promptly advise the Agents to suspend solicitation of offers
until the new posted rates have been established with the Agents.
Acceptance of Offers by Company:
Each Agent will promptly advise the Company by telephone or other
appropriate means of all reasonable offers to purchase Certificated Securities,
other than those rejected by such Agent. Each Agent may, in its discretion
reasonably exercised, reject any offer received by it in whole or in part. Each
Agent also may make offers to the Company to purchase Certificated Securities as
a Purchasing Agent. The Company will have the sole right to accept offers to
purchase Certificated Securities and may reject any such offer in whole or in
part.
The Company will promptly notify the Selling Agent or Purchasing Agent,
as the case may be, of its acceptance or rejection of an offer to purchase
Certificated Securities. If the Company accepts an offer to purchase
Certificated Securities, it will confirm such acceptance in writing to the
Selling Agent or Purchasing Agent, as the case may be, and the Trustee.
Communication of Sale Information to Company by Agent:
After the acceptance of an offer by the Company, the Selling Agent or
Purchasing Agent, as the case may be, will communicate the following details of
the terms of such offer (the "Sale Information") to the Company by telephone
(confirmed in writing) or by facsimile transmission or other acceptable written
means:
(1) Principal Amount of Certificated Securities to be purchased;
(2) If a Fixed Rate Certificated Security, the interest rate and
initial interest payment date;
(3) Trade Date;
(4) Settlement Date;
(5) Maturity Date;
(6) Specified Currency and, if the Specified Currency is other
than U.S. dollars, the applicable Exchange Rate for such
Specified Currency;
(7) The Exchange Rate Agent and the Exchange Rate Determination
Date, if applicable;
(8) Issue Price;
(9) Selling Agent's commission or Purchasing Agent's discount, as
the case may be;
(10) Net Proceeds to the Company;
(11) If a redeemable or repayable Certificated Security, such of
the following as are applicable:
(i) Redemption Commencement Date,
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(ii) Initial Redemption Price (% of par),
(iii) Amount (% of par) that the Redemption Price shall
decline (but not below par) on each anniversary of
the Redemption Commencement Date,
(iv) Repayment date, and
(v) Repayment price;
(12) If an Original Issue Discount Certificated Security, the total
amount of Original Issue Discount, the yield to Maturity and
the initial accrual period of Original Issue Discount;
(13) If a Floating Rate Certificated Security, such of the
following as are applicable:
(i) Interest Rate Basis,
(ii) Index Maturity and Index Currency,
(iii) Spread or Spread Multiplier,
(iv) Maximum Rate,
(v) Minimum Rate,
(vi) Initial Base Rate,
(vii) Initial Interest Rate,
(viii) Interest Reset Dates,
(ix) Calculation Dates,
(x) Interest Determination Dates,
(xi) Interest Payment Dates,
(xii) Regular Record Dates, and
(xiii) Calculation Agent;
(14) Name, address and taxpayer identification number of the
registered owner(s);
(15) Denomination of certificates to be delivered at settlement;
(16) Book-Entry Security or Certificated Security; and
(17) Selling Agent or Purchasing Agent.
Preparation of Prospectus or Pricing Supplement by Company:
If the Company accepts an offer to purchase a Certificated Security, it
will prepare a Prospectus Supplement or Pricing Supplement, as applicable,
reflecting the terms of such Certificated Security and arrange to have delivered
to the Selling Agent or Purchasing Agent, as the case may be, at least ten
copies of such Pricing Supplement, not later than 5:00 p.m., New York City time,
on the business day following the Trade Date, or if the Company and the
purchaser agree to settlement on the date of acceptance of such offer, not later
than noon, New York City time, on such date. The Company will arrange to have
the Pricing Supplement filed with the Commission not later than the close of
business of the Commission on the fifth business day (or second business day, if
such Certificated Security is to be sold pursuant to Rule 430A under the
Securities Act) following the date on which such Pricing Supplement is first
used.
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Delivery of Confirmation and Prospectus to Purchaser by Selling Agent:
The Selling Agent will deliver to the purchaser of a Certificated
Security a written confirmation of the sale and delivery and payment
instructions. In addition, the Selling Agent will deliver to such purchaser or
its agent the Prospectus as amended or supplemented (including the Pricing
Supplement, as applicable) in relation to such Certificated Security prior to or
together with the earlier of the delivery to such purchaser or its agent of (a)
the confirmation of sale or (b) the Certificated Security.
Date of Settlement:
All offers of Certificated Securities solicited by a Selling Agent or
made by a Purchasing Agent and accepted by the Company will be settled on a date
(the "Settlement Date") which is the third business day after the date of
acceptance of such offer, unless the Company and the purchaser agree to
settlement (a) on another business day after the acceptance of such offer or (b)
with respect to an offer accepted by the Company prior to 10:00 a.m., New York
City time, on the date of such acceptance.
Instruction from Company to Trustee for Preparation of Certificated Securities:
After receiving the Sale Information from the Selling Agent or
Purchasing Agent, as the case may be, the Company will communicate such Sale
Information to the Trustee by telephone (confirmed in writing) or by facsimile
transmission or other acceptable written means.
The Company will instruct the Trustee by facsimile transmission or
other acceptable written means to authenticate and deliver the Certificated
Securities no later than 2:15 p.m., New York City time, on the Settlement Date.
Such instruction will be given by the Company prior to 3:00 p.m., New York City
time, on the business day immediately preceding the Settlement Date unless the
Settlement Date is the date of acceptance by the Company of the offer to
purchase Certificated Securities in which case such instruction will be given by
the Company by 11:00 a.m., New York City time.
Preparation and Delivery of Certificated Securities by Trustee and Receipt of
Payment Therefor:
The Trustee will prepare each Certificated Security and appropriate
receipts that will serve as the documentary control of the transaction.
In the case of a sale of Certificated Securities to a purchaser
solicited by a Selling Agent, the Trustee will, by 2:15 p.m., New York City
time, on the Settlement Date, deliver the Certificated Securities to the Selling
Agent for the benefit of the purchaser of such Certificated Securities against
delivery by the Selling Agent of a receipt therefor. On the Settlement Date the
Selling Agent will deliver payment for such Certificated Securities in
immediately available funds to the Company in an amount equal to the issue price
of the Certificated Securities less the Selling Agent's commission; provided
that the Selling Agent reserves the right to withhold payment for which it has
not received funds from the purchaser. The Company shall not use any proceeds
advanced by a Selling Agent to acquire securities.
In the case of a sale of Certificated Securities to a Purchasing Agent,
the Trustee will, by 2:15 p.m., New York City time, on the Settlement Date,
deliver the Certificated Securities to the Purchasing Agent against delivery of
payment for such Certificated Securities in immediately available funds to the
Company in an amount equal to the issue price of the Certificated Securities
less the Purchasing Agent's discount.
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Failure of Purchaser to Pay Selling Agent:
If a purchaser (other than a Purchasing Agent) fails to make payment to
the Selling Agent for a Certificated Security, the Selling Agent will promptly
notify the Trustee and the Company thereof by telephone (confirmed in writing)
or by facsimile transmission or other acceptable written means. The Selling
Agent will immediately return the Certificated Security to the Trustee.
Immediately upon receipt of such Certificated Security by the Trustee, the
Company will return to the Selling Agent an amount equal to the amount
previously paid to the Company in respect of such Certificated Security. The
Company will reimburse the Selling Agent on an equitable basis for its loss of
the use of funds during the period when they were credited to the account of the
Company.
The Trustee will cancel the Certificated Security in respect of which
the failure occurred, make appropriate entries in its records and, unless
otherwise instructed by the Company, destroy the Certificated Security.
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ANNEX III
ACCOUNTANTS' LETTER
Pursuant to Sections 4(j) and 6(d), as the case may be, of the
Distribution Agreement, the Company's independent certified public accountants
shall furnish letters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of the
Act and the applicable rules and regulations adopted by the Commission;
(ii) In their opinion, the financial statements and any
supplementary financial information and schedules (and, if applicable,
financial forecasts and/or pro forma financial information) examined by
them and included in the Registration Statement or the Prospectus as
most recently amended or supplemented comply as to form in all material
respects with the applicable accounting requirements of the Act or the
Exchange Act, as applicable, and the related published rules and
regulations thereunder; and, if applicable, they have made a review in
accordance with standards established by the American Institute of
Certified Public Accountants of the consolidated interim financial
statements, selected financial data, pro forma financial information,
financial forecasts and/or condensed financial statements derived from
audited financial statements of the Company for the periods specified
in such letter, as indicated in their reports thereon, copies of which
have been furnished to the Agents;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public Accountants
of the unaudited condensed consolidated statements of income,
consolidated balance sheets and consolidated statements of cash flows
included in the Prospectus as most recently amended or supplemented as
indicated in their reports thereon copies of which have been furnished
to the Agents; and on the basis of specified procedures including
inquiries of officials of the Company, who have responsibility for
financial and accounting matters regarding whether the unaudited
condensed consolidated financial statements referred to in paragraph
(vi)(A)(i) below comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations, nothing came to their
attention that caused them to believe that the unaudited condensed
consolidated financial statements do not comply as to form in all
material respects with the applicable accounting requirements of the
Act and the Exchange Act and the related published rules and
regulations;
(iv) The unaudited selected financial information with respect
to the consolidated results of operations and financial position of the
Company for the five most recent fiscal years included in the
Prospectus as most recently amended or supplemented agrees with the
corresponding amounts (after restatement where applicable) in the
audited consolidated financial statements for such fiscal years;
(v) They have compared the information in the Prospectus under
selected captions with the disclosure requirements of Regulation S-K
and on the basis of limited procedures specified in such letter nothing
came to their attention as a result of the foregoing procedures that
caused them to believe that this information does not conform in all
material respects with the disclosure requirements of Items 301, 302,
402 and 503(d) respectively, of Regulation S-K;
(vi) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and other
information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included in
the Prospectus as amended or supplemented, inquiries of
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officials of the Company and its subsidiaries responsible for financial
and accounting matters and such other inquiries and procedures as may
be specified in such letter, nothing came to their attention that
caused them to believe that:
(A) (i) the unaudited condensed consolidated statements of
income, consolidated balance sheets and consolidated statements of
cash flows included in the Prospectus as most recently amended or
supplemented do not comply as to form in all material respects with
the applicable accounting requirements of the Exchange Act and the
related published rules and regulations, or (ii) any material
modifications should be made to the unaudited condensed consolidated
statements of income, consolidated balance sheets and consolidated
statements of cash flows included in the Prospectus as most recently
amended or supplemented for them to be in conformity with generally
accepted accounting principles;
(B) any other unaudited income statement data and balance
sheet items included in the Prospectus as most recently amended or
supplemented do not agree with the corresponding items in the
unaudited consolidated financial statements from which such data and
items were derived, and any such unaudited data and items were not
determined on a basis substantially consistent with the basis for
the corresponding amounts in the audited consolidated financial
statements included in the Prospectus as most recently amended or
supplemented;
(C) the unaudited financial statements which were not included
in the Prospectus as most recently amended or supplemented but from
which were derived the unaudited condensed financial statements
referred to in clause (A) and any unaudited income statement data
and balance sheet items included in the Prospectus as most recently
amended or supplemented and referred to in clause (B) were not
determined on a basis substantially consistent with the basis for
the audited financial statements included in the Prospectus as most
recently amended or supplemented;
(D) any unaudited pro forma consolidated condensed financial
statements included in the Prospectus as most recently amended or
supplemented do not comply as to form in all material respects with
the applicable accounting requirements of the Act and the published
rules and regulations thereunder or the pro forma adjustments have
not been properly applied to the historical amounts in the
compilation of those statements;
(E) as of a specified date not more than five days prior to
the date of such letter, there have been any changes in the
consolidated capital stock (other than issuances of capital stock
upon exercise of options and stock appreciation rights, upon
earn-outs of performance shares and upon conversions of convertible
securities, in each case which were outstanding on the date of the
latest balance sheet included in the Prospectus as most recently
amended or supplemented) (or partners' capital as applicable) or any
increase in the consolidated long-term debt of the Company and its
subsidiaries, or any decreases in consolidated net current assets or
stockholders' equity or other items specified by the Agents, or any
increases in any items specified by the Agents, in each case as
compared with amounts comparable shown in the latest balance sheet
included in the Prospectus as most recently amended or supplemented,
except in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(F) for the period from the date of the latest financial
statements included in the Prospectus as most recently amended or
supplemented to the specified date referred to in clause (E) there
were any decreases in consolidated total revenues or consolidated
revenues, net of interest expense, pre-tax earnings or total or per
share amounts of consolidated net income or other items specified by
the Agents, or any increases in any items specified by the Agents,
in each case as compared with the
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comparable items in the comparable period of the preceding
year and with any other period of corresponding length
specified by the Agents, except in each case for increases or
decreases which the Prospectus discloses have occurred or may
occur or which are described in such letter; and
(vii) In addition to the audit referred to in their report(s)
included in the Prospectus and the limited procedures, inspection of
minute books, inquiries and other procedures referred to in
paragraphs (iii) and (vi) above, they have carried out certain
specified procedures, not constituting an audit in accordance with
generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Agents which are derived from the general accounting records of the
Company and its subsidiaries which appear in the Prospectus, or in
Part II of, or in exhibits and schedules to, the Registration
Statement specified by the Agents, and have compared certain of such
amounts, percentages and financial information with the accounting
records of the Company and its subsidiaries and have found them to
be in agreement.
All references in this Annex III to the Prospectus shall be deemed to refer to
the Prospectus as defined in the Distribution Agreement as of the Commencement
Date referred to in Section 6(d) thereof and to the Prospectus as amended or
supplemented as of the date of the amendment, supplement or the Time of Delivery
relating to the Terms Agreement requiring the delivery of such letter under
Section 4(j) thereof.
III-3
