Underwriting Agreement
Exhibit 1.3
May 21, 2007
UBS Securities LLC
X.X. Xxxxxx Securities Inc.,
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
X.X. Xxxxxx Securities Inc.,
c/o UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Ladies and Gentlemen:
Bancolombia S.A., a Colombian banking institution, incorporated under the laws of the Republic
of Colombia as a sociedad anónima (the “Company”), proposes to issue and sell to UBS
Securities LLC (“UBS”) and X.X. Xxxxxx Securities Inc. (“JPMSI” and, together with
UBS, the “Underwriters”) $400.0 million in aggregate principal amount of its 6.875%
Subordinated Notes due 2017 (the “Notes”). The Notes will be issued pursuant to an
indenture (the “Indenture”), to be dated the Closing Date (as defined in Section 2 herein),
by and between the Company and The Bank of New York, as trustee (the “Trustee”).
The Company has prepared and filed, in accordance with the provisions of the Securities Act of
1933, as amended, and the rules and regulations thereunder (collectively, the “Act”), with
the Securities and Exchange Commission (the “Commission”) a registration statement on Form
F-3 (File No. 333-142898) under the Act (the “registration statement”), including a
prospectus, which registration statement incorporates by reference documents which the Company has
filed, or will file, in accordance with the provisions of the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder (collectively, the “Exchange Act”). Such
registration statement has become automatically effective upon filing under the Act.
Except where the context otherwise requires, “Registration Statement,” as used herein,
means the registration statement, as amended at the time of such registration statement’s
effectiveness for purposes of Section 11 of the Act, as such section applies to the respective
Underwriters (the “Effective Time”), including (i) all documents filed as a part thereof or
incorporated or deemed to be incorporated by reference therein, (ii) any information contained or
incorporated by reference in a prospectus filed with the Commission pursuant to Rule 424(b) under
the Act, to the extent such information is deemed, pursuant to 430A, Rule 430B or Rule 430C under
the Act, to be part of the registration statement at the Effective Time, and (iii) any registration
statement filed to register the offer and sale of Notes pursuant to Rule 462(b) under the Act.
For the purposes of this Agreement, the “Applicable Time” is 2:15 p.m. (Eastern time) on the
date of this Agreement.
The Company has furnished to you, for use by the Underwriters and by dealers in connection
with the offering of the Notes, copies of one or more preliminary prospectus supplements, and the
documents incorporated by reference therein, relating to the Notes. Except where the context
otherwise requires, “Pre-Pricing Prospectus,” as used herein, means each such
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preliminary prospectus supplement, in the form so furnished, including any base prospectus
furnished to you by the Company and attached to or used with such preliminary prospectus
supplement. Except where the context otherwise requires, “Base Prospectus,” as used
herein, means any such base prospectus and any base prospectus furnished to you by the Company and
attached to or used with the Prospectus Supplement (as defined below).
Except where the context otherwise requires, “Prospectus Supplement,” as used herein,
means the final prospectus supplement, relating to the Notes, filed by the Company with the
Commission pursuant to Rule 424(b) under the Act on or before the second business day after the
date hereof and that is also a day on which the Commission is open for business (or such earlier
time as may be required under the Act), in the form furnished by the Company to you for use by the
Underwriters and by dealers in connection with the offering of the Notes.
Except where the context otherwise requires, “Prospectus,” as used herein, means the
Prospectus Supplement together with the Base Prospectus attached to or used with the Prospectus
Supplement.
“Permitted Free Writing Prospectuses,” as used herein, means the documents listed on
Schedule B attached hereto and each “road show” (as defined in Rule 433 under the Act), if
any, related to the offering of the Notes contemplated hereby that is a “written communication” (as
defined in Rule 405 under the Act). The Underwriters have not offered or sold and will not offer
or sell, without the Company’s consent, any Notes by means of any “free writing prospectus” (as
defined in Rule 405 under the Act) that is required to be filed by the Underwriters with the
Commission pursuant to Rule 433 under the Act, other than a Permitted Free Writing Prospectus.
“Disclosure Package,” as used herein, means the Base Prospectus, as amended or
supplemented, including any Pre-Pricing Prospectus immediately prior to the Applicable Time, and
the Permitted Free Writing Prospectuses indicated on Schedule B.
Any reference herein to the Registration Statement, any Base Prospectus, any Pre-Pricing
Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus
shall be deemed to refer to and include the documents, if any, incorporated by reference, or deemed
to be incorporated by reference, therein (the “Incorporated Documents”), including, unless
the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated
Documents. Any reference herein to the terms “amend,” “amendment” or
“supplement” with respect to the Registration Statement, any Base Prospectus, any
Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any Permitted Free Writing
Prospectus shall be deemed to refer to and include the filing of any document under the Exchange
Act on or after the initial effective date of the Registration Statement, or the date of such Base
Prospectus, such Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or such
Permitted Free Writing Prospectus, as the case may be, and deemed to be incorporated therein by
reference.
As used in this underwriting agreement (this “Agreement”), “business day”
shall mean a day on which the New York Stock Exchange (the “NYSE”) is open for trading.
The terms “herein,” “hereof,” “hereto,” “hereinafter” and similar terms, as used in this Agreement,
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shall in each case refer to this Agreement as a whole and not to any particular section, paragraph,
sentence or other subdivision of this Agreement. The term “or,” as used herein, is not exclusive.
The Company and the Underwriters agree as follows:
1. Sale and Purchase. Upon the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Company agrees to issue and sell to the
respective Underwriters and each of the Underwriters, severally and not jointly, agrees to purchase
from the Company the aggregate principal amount of the Notes set forth opposite its name on
Schedule A annexed hereto. The purchase price for the Notes shall be 98.061% of their
principal amount (the “Purchase Price”). The Company will not be obligated to deliver any
of the Notes except upon payment for all of the Notes to be purchased as provided herein. The
Company is advised by you that the Underwriters intend (i) to make a public offering of their
respective portions of the Notes as soon after the effectiveness of this Agreement as in your
judgment is advisable and (ii) initially to offer the Notes upon the terms set forth in the
Prospectus. Each Underwriter may from time to time increase or decrease the public offering price
after the initial public offering to such extent as such Underwriter may determine without notice.
2. Payment and Delivery. Payment of the Purchase Price for the Notes shall be made to
the Company by Federal Funds (same day) wire transfer against delivery of the Notes (which shall be
evidenced by one or more global certificates in book-entry form having an aggregate principal
amount corresponding to the aggregate principal amount of the Notes) to you through the facilities
of The Depository Trust Company (“DTC”) for the respective accounts of the Underwriters.
Such payment and delivery shall be made at 10:00 A.M., New York City time, on May 25, 2007 (unless
another time shall be agreed to by you and the Company; provided that such date is a business day
and a day on which commercial banks in Colombia are not legally obliged or authorized to close)
(such date and time, the “Closing Date”). The time at which such payment and delivery are
to be made is hereinafter sometimes called the “time of purchase.” Electronic book-entry
transfer of the Notes shall be made to you at the time of purchase in such names and denominations
as you shall specify.
Deliveries of the documents described in Section 5 hereof with respect to the purchase of the
Notes shall be made at the offices of White & Case LLP at 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX
00000, at 9:00 A.M., New York City time, on the date of the closing of the purchase of the Notes.
3. Representations and Warranties of the Company. The Company represents and warrants
to and agrees with each of the Underwriters that:
(a) the Registration Statement has heretofore become effective under the Act or,
with respect to any registration statement to be filed to register the offer and sale
of Notes pursuant to Rule 462(b) under the Act, will be filed with the Commission and
become effective under the Act no later than 10:00 P.M., New York City time, on the
date of determination of the public offering price for the Notes; no stop order of the
Commission preventing or suspending the use of any Base Prospectus, any Pre-Pricing
Prospectus, the Prospectus Supplement, the
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Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the
Registration Statement, has been issued, and no proceedings for such purpose have been
instituted or, to the Company’s knowledge, are contemplated by the Commission;
(b) the Registration Statement complied when it became effective, complies as of
the date hereof and, as amended or supplemented, at the time of purchase, will comply,
in all material respects, with the requirements of the Act and the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the Commission thereunder
(collectively, the “Trust Indenture Act”); the conditions to the use of Form
F-3 in connection with the offering and sale of the Notes as contemplated hereby have
been satisfied; the Registration Statement constitutes an “automatic shelf
registration statement” (as defined in Rule 405 under the Act); the Company has not
received, from the Commission, a notice, pursuant to Rule 401(g)(2), of objection to
the use of the automatic shelf registration statement form; as of the determination
date applicable to the Registration Statement (and any amendment thereof) and the
offering contemplated hereby, the Company is a “well-known seasoned issuer” as defined
in Rule 405 under the Act; the Registration Statement meets, and the offering and sale
of the Notes as contemplated hereby complies with, the requirements of Rule 415 under
the Act (including, without limitation, Rule 415(a)(5) under the Act); the
Registration Statement did not, as of the Effective Time, 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; each Pre-Pricing Prospectus
and each Permitted Free Writing Prospectus complied, at the time it was filed with the
Commission, and complies as of the date hereof, in all material respects with the
requirements of the Act; as of the Applicable Time, the Disclosure Package did not
include an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the circumstances under
which they were made, not misleading; each of the Prospectus Supplement and the
Prospectus will comply, as of the date that it is filed with the Commission, the date
of the Prospectus Supplement, and the time of purchase, in all material respects, with
the requirements of the Act (in the case of the Prospectus, including, without
limitation, Section 10(a) of the Act); as of the date of the Prospectus Supplement,
the date the Prospectus Supplement is filed with the Commission and at the time of
purchase any Prospectus Supplement or the Prospectus, as then amended or supplemented
did not and will not, include an untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading; each Permitted Free Writing
Prospectus listed on Schedule B hereto and the “road show” does not or will not,
conflict with the information disclosed in the Registration Statement, the Pre-Pricing
Prospectus or the Prospectus, and each such Permitted Free Writing Prospectus and the
“road show” as supplemented by and taken together with the Disclosure Package as of
the Applicable Time, did not include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in light of
the circumstances under which they
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were made, not misleading; each Incorporated Document, at the time such document
was filed or will be filed with the Commission or at the time such document became
effective or will become effective, as applicable, complied or will comply, in all
material respects, with the requirements of the Exchange Act and did not include or
will not include an untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading; provided, however, that
the Company makes no representation or warranty in this Section 3(b) with respect to
(x) that part of the Registration Statement that constitutes the Statement of
Eligibility and Qualification of the Trustee under the Trust Indenture Act and (y) any
statement contained in the Registration Statement, the Disclosure Package, the
Prospectus or any Permitted Free Writing Prospectus in reliance upon and in conformity
with the Underwriter Information (as defined in Section 7(b) herein) and furnished in
writing by or on behalf of such Underwriter through you to the Company expressly for
use in the Registration Statement, the Disclosure Package, the Prospectus or such
Permitted Free Writing Prospectus;
(c) prior to the execution of this Agreement, the Company has not, directly or
indirectly, offered or sold any Notes by means of any “prospectus” (within the meaning
of the Act) or used any “prospectus” (within the meaning of the Act) in connection
with the offer or sale of the Notes, in each case other than the Pre-Pricing
Prospectuses and the Permitted Free Writing Prospectuses, if any; the Company has not,
directly or indirectly, prepared, used or referred to any Permitted Free Writing
Prospectus except in compliance with Rule 163 or with Rules 164 and 433 under the Act;
assuming that such Permitted Free Writing Prospectus is so sent or given after the
Registration Statement was filed with the Commission (and after such Permitted Free
Writing Prospectus was, if required pursuant to Rule 433(d) under the Act, filed with
the Commission), the sending or giving, by any Underwriter, of any Permitted Free
Writing Prospectus will satisfy the provisions of Rule 164 and Rule 433 (without
reliance on subsections (b), (c) and (d) of Rule 164); the conditions set forth in one
or more of subclauses (i) through (iv), inclusive, of Rule 433(b)(1) under the Act are
satisfied, and the registration statement relating to the offering of the Notes
contemplated hereby, as initially filed with the Commission, includes a prospectus
that, other than by reason of Rule 433 or Rule 431 under the Act, satisfies the
requirements of Section 10 of the Act; neither the Company are disqualified, by reason
of subsection (f) or (g) of Rule 164 under the Act, from using, in connection with the
offer and sale of the Notes, “free writing prospectuses” (as defined in Rule 405 under
the Act) pursuant to Rules 164 and 433 under the Act; the Company is not an
“ineligible issuer” (as defined in Rule 405 under the Act) as of the eligibility
determination date for purposes of Rules 164 and 433 under the Act with respect to the
offering of the Notes contemplated by the Registration Statement;
(d) in accordance with Article 7(d) of Decree 1720 of 2001, as amended, the Notes
qualify as subordinated debt under the laws of the Republic of Colombia;
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(e) as of the date of this Agreement, the Company has an authorized and
outstanding capitalization as set forth in the section of the Registration Statement,
the Disclosure Package entitled “Capitalization”, and, as of the time of purchase, the
Company shall have an authorized and outstanding capitalization as set forth in the
section of the Registration Statement and the Prospectus entitled “Capitalization”;
all of the issued and outstanding equity interests of the Company have been duly
authorized and validly issued and are fully paid and non-assessable, have been issued
in compliance with all applicable securities laws and were not issued in violation of
any preemptive right, resale right, right of first refusal or similar right;
(f) the Company has been duly organized and is validly existing as a sociedad
anónima under the laws of the Republic of Colombia, with full corporate power and
authority to own, lease and operate its properties and conduct its business as
described in the Disclosure Package and the Prospectus to execute and deliver this
Agreement and to issue, sell and deliver the Notes as contemplated herein;
(g) the Company is duly qualified to do business as a foreign corporation in each
jurisdiction where the ownership or leasing of its properties or the conduct of its
business requires such qualification, except where the failure to be so qualified
would not, individually or in the aggregate, either (i) reasonably be expected to have
a material adverse effect on the business, properties, consolidated financial
condition, results of operations or prospects of the Company and its subsidiaries
taken as a whole or (ii) prevent or materially interfere with consummation of the
transactions contemplated hereby (the occurrence of any such effect or any such
prevention or interference or any such result described in the foregoing clauses (i)
and (ii) being herein referred to as a “Material Adverse Effect”)”;
(h) the Company owns, directly or indirectly, the majority of the capital stock
of its significant subsidiaries, as such term is defined in Rule 1-02 of Regulation
S-X under the Act (each a “Significant Subsidiary”); complete and correct copies of
the charters and the bylaws of the Company and all amendments thereto have been
delivered to you, and no material changes therein will be made on or after the date
hereof through and including the time of purchase; each Significant Subsidiary has
been duly incorporated and is validly existing as a corporation under the laws of the
jurisdiction of its incorporation, with full corporate power and authority to own,
lease and operate its properties and to conduct its business as described in the
Disclosure Package and the Prospectus; each Significant Subsidiary is duly qualified
to do business as a foreign corporation in each jurisdiction where the ownership or
leasing of its properties or the conduct of its business requires such qualification,
except where the failure to be so qualified would not, individually or in the
aggregate, have a Material Adverse Effect; all of the outstanding shares of capital
stock of each of the Significant Subsidiaries have been duly authorized and validly
issued, are fully paid and non-assessable, have been
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issued in compliance with all applicable securities laws, were not issued in
violation of any preemptive rights, resale right, right of first refusal or similar
rights and the corresponding shares are owned by the Company subject to no security
interest, other encumbrance or adverse claims; and no options, warrants or other
rights to purchase, agreements or other obligations to issue or other rights to
convert any obligation into shares of capital stock or ownership interest in the
Significant Subsidiaries are outstanding;
(i) the Indenture has been duly and validly authorized by the Company and, will,
upon effectiveness of the Registration Statement, have been duly qualified under the
Trust Indenture Act and, when duly executed and delivered by the Company (assuming the
due authorization, execution and delivery thereof by the Trustee), will be a legally
binding and valid obligation of the Company, enforceable against it in accordance with
its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws affecting the
enforcement of creditors’ rights generally and by general principles of equity and the
discretion of the court before which any proceeding therefore may be brought (the
“Bankruptcy Exceptions”). The Indenture, when executed and delivered, will
conform in all material respects to the description thereof in the Disclosure Package
and the Prospectus.
(j) the Notes have been duly and validly authorized for issuance and sale to the
Underwriters by the Company, and when issued, authenticated and delivered by the
Company against payment therefor by the Underwriters in accordance with the terms of
this Agreement and the Indenture, the Notes will be legally binding and valid
obligations of the Company, entitled to the benefits of the Indenture and enforceable
against the Company in accordance with their terms, except as the enforcement thereof
may be limited by the Bankruptcy Exceptions. The Notes, when issued, authenticated
and delivered, will conform in all material respects to the description thereof in the
Disclosure Package and the Prospectus.
(k) this Agreement has been duly authorized, executed and delivered by the
Company;
(l) neither the Company nor any of its Significant Subsidiaries is in breach or
violation of or in default under (nor has any event occurred which, with notice, lapse
of time or both, would result in any breach or violation of, constitute a default
under or give the holder of any indebtedness (or a person acting on such holder’s
behalf) the right to require the repurchase, redemption or repayment of all or a part
of such indebtedness under) (i) its charter or bylaws, or (ii) any indenture,
mortgage, deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or instrument to
which it is a party or by which it or any of its properties may be bound or affected,
or (iii) any Colombian, United States, or other federal, state or local law applicable
to the Company or its Significant Subsidiaries, or (iv) any rule or regulation of any
self-regulatory organization or other non-governmental regulatory authority or (v)
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any decree, judgment or order applicable to it or any of its properties except
where such breach or violation of, or default under, would not, in the case of clauses
(ii) through (v), individually or in the aggregate, have a Material Adverse Effect;
(m) the execution, delivery and performance of this Agreement and the Indenture,
the issuance and sale of the Notes and the consummation of the transactions
contemplated hereby will not conflict with, result in any breach or violation of or
constitute a default under (nor constitute any event which, with notice, lapse of time
or both, would result in any breach or violation of, constitute a default under or
give the holder of any indebtedness (or a person acting on such holder’s behalf) the
right to require the repurchase, redemption or repayment of all or a part of such
indebtedness under) (or result in the creation or imposition of a lien, charge or
encumbrance on any property or assets of the Company or any Significant Subsidiary
pursuant to) (i) the charter or bylaws of the Company or any of the Significant
Subsidiaries, or (ii) any indenture, mortgage, deed of trust, bank loan or credit
agreement or other evidence of indebtedness, or any license, lease, contract or other
agreement or instrument to which the Company or any of the Significant Subsidiaries is
a party or by which any of them or any of their respective properties may be bound or
affected, or (iii) any United States, Colombian, or other federal, state or local law
applicable to the Company or its Significant Subsidiaries, or (iv) any rule or
regulation of any self-regulatory organization or other non-governmental regulatory
authority, or (v) any decree, judgment or order applicable to the Company or any of
the Subsidiaries or any of their respective properties, except where such conflict
with, breach or violation of, or default under would not, in the case of clauses (ii)
through (v), individually or in the aggregate, have a Material Adverse Effect;
(n) no approval, authorization, consent or order of or filing with any Colombian,
United States or other federal, state, local or regulatory commission, board, body,
authority or agency, or of or with any self-regulatory organization or other
non-governmental regulatory authority, is required in connection with the execution,
delivery and performance by the Company or any Significant Subsidiary of this
Agreement, the Indenture and the Notes or the consummation by the Company of the
transactions contemplated hereby, other than (i) registration of the Notes under the
Act, which has been effected (or, with respect to any registration statement to be
filed hereunder pursuant to Rule 462(b) under the Act, will be effected in accordance
herewith), (ii) any necessary qualification under the securities or blue sky laws of
the various jurisdictions in which the Notes are being offered by the Underwriters, or
(iii) informing the Superintendencia Financiera of the transaction 15 days prior to
issuing the Notes and filing the final executed versions of the Base Prospectus and
the Prospectus Supplement duly translated into Spanish by an official translator with
the Superitendencia Financiera once they are available;
(o) each of the Company and the Significant Subsidiaries has all necessary
licenses, authorizations, consents and approvals and has made all
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necessary filings required under United States, Colombian or any other applicable
law, regulation or rule, and has obtained all necessary licenses, authorizations,
consents and approvals from the appropriate United States, Colombian or other foreign
regulatory authority, in order to conduct their respective businesses; neither the
Company nor any of the Significant Subsidiaries is in violation of, or in default
under, or has received notice of any proceedings relating to the revocation or
modification of, any such license, authorization, consent or approval or any United
States, Colombian, or other federal, state, local or foreign law, regulation or rule
or any decree, order or judgment applicable to the Company or any of the Significant
Subsidiaries, except where such violation, default, revocation or modification would
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect;
(p) other than as set forth in the Registration Statement, the Pre-Pricing
Prospectus and the Prospectus, there are no actions, suits, claims, investigations or
proceedings pending or, to the Company’s best knowledge, threatened or contemplated to
which the Company or any of the Significant Subsidiaries or any of their respective
directors or officers is or would be a party or of which any of their respective
properties is or would be subject at law or in equity, before or by any United States,
Colombian, or other federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency, or before or by any self-regulatory
organization or other non-governmental regulatory authority, except any such action,
suit, claim, investigation or proceeding which, if resolved adversely to the Company
or any Significant Subsidiary, would not, individually or in the aggregate, have a
Material Adverse Effect;
(q) Deloitte & Touche Ltda., whose report on the consolidated financial
statements of the Company is included in Disclosure Package and the Prospectus, are
independent registered public accountants as required by the Act and by the rules of
the Public Company Accounting Oversight Board;
(r) the financial statements included or incorporated by reference in the
Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted
Free Writing Prospectuses, if any, together with the related notes and schedules,
present fairly the consolidated financial position of the Company and the Subsidiaries
as of the dates indicated and have been prepared in compliance with the requirements
of the Act and the Exchange Act and in conformity with Colombian generally accepted
accounting principles applied on a consistent basis during the periods involved; the
other financial and statistical data contained or incorporated by reference in the
Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the Permitted
Free Writing Prospectuses, if any, are accurately and fairly presented and prepared on
a basis consistent with the financial statements and books and records of the Company;
there are no financial statements (historical or pro forma) that are required to be
included or incorporated by reference in the Registration Statement, any Pre-Pricing
Prospectus or the Prospectus that are not included or incorporated by reference as
required; the
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Company and the Significant Subsidiaries do not have any material liabilities or
obligations, direct or contingent (including any off-balance sheet obligations), not
described in the Registration Statement (excluding the exhibits thereto), each
Pre-Pricing Prospectus and the Prospectus; and all disclosures contained or
incorporated by reference in the Registration Statement, the Pre-Pricing Prospectuses,
the Prospectus and the Permitted Free Writing Prospectuses, if any, regarding
“non-GAAP financial measures” (as such term is defined by the rules and regulations of
the Commission) comply with Regulation G of the Exchange Act and Item 10 of Regulation
S-K under the Act, to the extent applicable;
(s) subsequent to the respective dates as of which information is given in the
Registration Statement, the Disclosure Package and the Prospectus in each case
excluding any amendments or supplements to the foregoing made after the execution of
this Agreement, there has not been (i) any material adverse change, or any development
involving a prospective material adverse change, in the business, properties,
management, financial condition or results of operations of the Company and its
subsidiaries taken as a whole, (ii) any transaction which is material to the Company
and the subsidiaries taken as a whole, (iii) any obligation or liability, direct or
contingent (including any off-balance sheet obligations), incurred by the Company or
any subsidiary, which is material to the Company and the subsidiaries taken as a
whole, (iv) any change in the capital stock or outstanding indebtedness of the Company
(other than indebtedness incurred or repaid in the ordinary course of business) or (v)
any dividend or distribution of any kind declared, paid or made on the capital stock
of the Company or any Significant Subsidiary, in each case as otherwise as set forth
or contemplated in the Disclosure Package and the Prospectus;
(t) the Company is not, and at no time during which a prospectus is required by
the Act to be delivered (whether physically or through compliance with Rule 172 under
the Act or any similar rule) in connection with any sale of Notes will be, and, after
giving effect to the offering and sale of the Notes, will be, required to register as
an “investment company” or an entity “controlled” by an “investment company,” as such
terms are defined in the Investment Company Act of 1940, as amended (the
“Investment Company Act”);
(u) the Company believes it was not a “passive foreign investment company” as
such term is defined in the United States Internal Revenue Code of 1986, as amended
(the “Internal Revenue Code”) for its taxable year ended December 31, 2006
and, based on the Company’s current and projected income, assets and activities it
does not expect to be classified as a “passive foreign investment company” for any
subsequent taxable years;
(v) the Company and each of its Significant Subsidiaries have good and marketable
title to all property (real and personal) described in the Disclosure Package and the
Prospectus as being owned by any of them, free and clear of all liens, claims,
security interests or other encumbrances; all the property described in
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the Disclosure Package and the Prospectus, as being held under lease by the
Company or a Significant Subsidiary is held thereby under valid, subsisting and
enforceable leases except where the lack of such good and marketable title would not,
individually or in the aggregate, have a Material Adverse Effect;
(w) each of the Company and its Significant Subsidiaries owns or possesses all
inventions, patent applications, patents, trademarks (both registered and
unregistered), tradenames, service names, copyrights, trade secrets and other
proprietary information described in the Disclosure Package and the Prospectus, as
being owned or licensed by it or which is necessary for the conduct of, or material
to, its businesses (collectively, the “Intellectual Property”), except where
the failure to own or possess the Intellectual Property would not, individually or in
the aggregate have a Material Adverse Effect, and the Company is unaware of any claim
to the contrary or any challenge by any other person to the rights of the Company or
any of its Significant Subsidiaries with respect to the Intellectual Property.
Neither the Company nor any of its Significant Subsidiaries has infringed or is
infringing the Intellectual Property of a third party, and neither the Company nor its
Significant Subsidiaries has received notice of a claim by a third party to the
contrary;
(x) no labor disturbance by or dispute with employees of the Company exist or, to
the best knowledge of the Company, is contemplated or threatened other than those
involving employees in the ordinary course of business, except for any such
disturbance or dispute that would not, individually or in the aggregate, have a
Material Adverse Effect;
(y) the Company and its Significant Subsidiaries and their respective properties,
assets and operations are in compliance with, and the Company and each of the
Significant Subsidiaries hold all permits, authorizations and approvals required
under, Environmental Laws (as defined below), except to the extent that failure to so
comply or to hold such permits, authorizations or approvals would not, individually or
in the aggregate, have a Material Adverse Effect; neither the Company nor any of the
subsidiaries (i) is the subject of any investigation, (ii) has received any notice or
claim, (iii) is a party to or affected by any pending or, to the Company’s knowledge,
threatened action, suit or proceeding, (iv) is bound by any judgment, decree or order
or (v) has entered into any agreement, in each case relating to any alleged direct
violation of any Environmental Law or any actual or alleged release or threatened
release or cleanup at any location of any Hazardous Materials (as defined below),
except to the extent that involvement in any of the activities mentioned in (i)
through (v) above would not, individually or in the aggregate, have a Material Adverse
Effect; (as used herein, “Environmental Law” means any federal, state, local
or foreign law, statute, ordinance, rule, regulation, order, decree, judgment,
injunction, permit, license, authorization or other binding requirement, or common
law, relating to health, safety or the protection, cleanup or restoration of the
environment or natural resources, including those relating to the distribution,
processing, generation, treatment, storage, disposal, transportation,
- 11 -
other handling or release or threatened release of Hazardous Materials, and
“Hazardous Materials” means any material (including, without limitation,
pollutants, contaminants, hazardous or toxic substances or wastes) that is regulated
by or may give rise to liability under any Environmental Law);
(z) all Colombian or other foreign, United States federal, state and local tax
returns required to be filed by the Company or any of the Significant Subsidiaries
have been filed, except in any case where the failure to file would not reasonably be
expected to have a Material Adverse Effect, and all taxes and other assessments of a
similar nature (whether imposed directly or through withholding) including any
interest, additions to tax or penalties applicable thereto due or claimed to be due
from such entities have been timely paid, other than those being contested in good
faith in appropriate proceedings and for which adequate reserves have been made in
accordance with Colombian generally accepted accounting principles or as could not
reasonably be expected to have a Material Adverse Effect;
(aa) no transaction tax, stamp duty or other issuance or transfer taxes or duties
and no capital gains, income, withholding or other taxes are payable by or on behalf
of the Underwriters to the Republic of Colombia or any political subdivision or taxing
authority thereof or therein in connection with (i) the issuance of the Notes in the
manner contemplated hereby or (ii) the sale and delivery by the Underwriters of the
Notes as contemplated herein;
(bb) there are no transfer taxes or other similar fees or charges under the laws
of the Republic of Colombia or the laws of the United States federal or state
governments, or any political subdivision thereof, required to be paid in connection
with the execution and delivery of this Agreement or the performance by the Company of
its obligations hereunder;
(cc) the Company and each of the Significant Subsidiaries maintain insurance
covering their respective properties, operations, personnel and businesses as the
Company reasonably deems adequate; such insurance insures against such losses and
risks to an extent which is adequate in accordance with customary industry practice in
the Republic of Colombia to protect the Company and the Significant Subsidiaries and
their respective businesses; all such insurance is fully in force on the date hereof
and will be fully in force at the time of purchase; neither the Company nor any
Significant Subsidiary has reason to believe that it will not be able to renew any
such insurance as and when such insurance expires;
(dd) neither the Company nor any subsidiary has sent or received any
communication regarding termination of, or intent not to renew, any of the contracts
or agreements listed under Section 4 of the exhibits to the Company’s Form 20-F filed
on May 10, 2007, referred to or described in the Disclosure Package or the Prospectus
and no such termination or non-renewal has been threatened by the Company or any
subsidiary or, to the Company’s knowledge, any other party to any such contract or
agreement;
- 12 -
(ee) the Company maintain a system of internal accounting controls sufficient to
provide reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorization, (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets, (iii) access
to assets is permitted only in accordance with management’s general or specific
authorization, and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is taken with respect
to any differences;
(ff) the Company has established and maintains and evaluates “disclosure controls
and procedures” (as such term is defined in Rule 13a-15 and 15d-15 under the Exchange
Act) and “internal control over financial reporting” (as such term is defined in Rule
13a-15 and 15d-15 under the Exchange Act); such disclosure controls and procedures are
designed to ensure that material information relating to the Company, including its
consolidated subsidiaries, is made known to the Company’s President and its Chief
Financial Officer by others within those entities, and such disclosure controls and
procedures are effective to perform the functions for which they were established; the
Company’s independent auditors and the Audit Committee of the Board of Directors of
the Company have been advised of: (i) all significant deficiencies, if any, in the
design or operation of internal controls which could adversely affect the Company’s
ability to record, process, summarize and report financial data, and (ii) all fraud,
if any, whether or not material, that involves management or other employees who have
a role in the Company’s internal controls; all material weaknesses, if any, in
internal controls have been identified to the Company’s independent auditors; since
the date of the most recent evaluation of such disclosure controls and procedures and
internal controls, there have been no significant changes in internal controls or in
other factors that could significantly affect internal controls, including any
corrective actions with regard to significant deficiencies and material weaknesses;
the principal executive officers (or their equivalents) and principal financial
officers (or their equivalents) of the Company have made all certifications required
by the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”) and any related
rules and regulations promulgated by the Commission, and the statements contained in
each such certification are complete and correct; the Company, the Subsidiaries and
the Company’s directors and officers are each in compliance in all material respects
with all applicable effective provisions of the Xxxxxxxx-Xxxxx Act and the rules and
regulations of the Commission promulgated thereunder, including Section 402 related to
loans;
(gg) all statistical or market-related data included or incorporated by reference
in the Registration Statement, the Pre-Pricing Prospectuses, the Prospectus and the
Permitted Free Writing Prospectuses, if any, are based on or derived from sources that
the Company reasonably believes to be reliable and accurate, and the Company has
obtained the written consent to the use of such data from such sources to the extent
required;
- 13 -
(hh) neither the Company nor any of the Significant Subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or affiliate of the
Company or any of the Significant Subsidiaries is aware of or has taken any action,
directly or indirectly, that would result in a violation by such persons of the
Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations
thereunder (the “Foreign Corrupt Practices Act”);
(ii) the operations of the Company and the Significant Subsidiaries are and have
been conducted at all times in compliance with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970,
as amended, the money laundering statutes of the United States or the Republic of
Colombia, the rules and regulations thereunder and any related or similar rules,
regulations or guidelines, issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”); and no action, suit or proceeding
by or before any court or governmental agency, authority or body or any arbitrator or
non-governmental authority involving the Company or any of the Significant
Subsidiaries with respect to the Money Laundering Laws is pending or, to the Company’s
knowledge, threatened;
(jj) neither the Company nor any of the Significant Subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or affiliate of the
Company or any of the Significant Subsidiaries is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (“OFAC”); and the Company will not directly or indirectly use the
proceeds of the offering of the Notes contemplated hereby, or lend, contribute or
otherwise make available such proceeds to any Subsidiary, joint venture partner or
other person or entity for the purpose of financing the activities of any person
currently subject to any U.S. sanctions administered by OFAC;
(kk) no Significant Subsidiary is currently prohibited, directly or indirectly,
from paying any dividends to the Company, from making any other distribution on such
Significant Subsidiary’s capital stock or from repaying to the Company any loans or
advances to such Subsidiary from the Company, except as described in the Registration
Statement (excluding the exhibits thereto), each Pre-Pricing Prospectus and the
Prospectus;
(ll) except pursuant to this Agreement, the Company has not incurred any
liability for any finder’s or broker’s fee or agent’s commission in connection with
the execution and delivery of this Agreement or the consummation of the transactions
contemplated hereby or by the Disclosure Package and the Prospectus;
(mm) neither the Company nor any of its subsidiaries nor any of their respective
directors or officers or, to the knowledge of the Company, any of its affiliates or
controlling persons has taken, directly or indirectly, any action designed, or which
has constituted or might reasonably be expected to cause or
- 14 -
result in the stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Notes;
(nn) under applicable Colombian laws and regulations, the proposed purchase by
the Company of a loan portfolio from its subsidiary Bancolombia (Panamá) S.A.
qualifies as a foreign currency lending transaction (operación activa de crédito en
moneda extranjera) for purposes of Article 59(1)(c)(i) of External Resolution 8 of
2000 of the Board of Directors of the Colombian Central Bank (the “External
Resolution 8”). The Company is not required to make the deposit with the
Colombian Central Bank as set forth under Article 26 of External Resolution 8,
pursuant to the exemption provided for by Article 59(1)(c)(i) of External Resolution
8;
(oo) this Agreement is in proper legal form for enforcement against the Company
in the Republic of Colombia, provided that to ensure the legality, validity,
enforceability or admissibility in evidence of this Agreement in the Republic of
Colombia, the Agreement must be translated into Spanish by an official translator;
(pp) this Agreement is in proper legal form for enforcement against the Company
in the Republic of Colombia, provided that to ensure the legality, validity,
enforceability or admissibility in evidence of this Agreement in the Republic of
Colombia, it is not necessary that either of them be filed or recorded or enrolled
with any court or authority in the Republic of Colombia or that any stamp,
registration or similar tax be paid in the Republic of Colombia, other than court
costs, including filing fees and deposits to guarantee judgment required by the
Republic of Colombia law and regulations;
(qq) no relationship, direct or indirect, exists between or among the Company or
any of its Significant Subsidiaries, on the one hand, and the directors, officers,
stockholders customers or suppliers of the Company or any of its Significant
Subsidiaries, on the other, that is required by the Act to be described in the
Registration Statement and the Prospectus and that is not so described in such
documents;
(rr) subject to the issuance of a writ of exequatur by the Supreme Court of the
Republic of Colombia, any final judgment for a fixed or determined sum of money
rendered by any court of the State of New York or of the United States located in the
State of New York having jurisdiction under its own domestic laws in respect of any
suit, action or proceeding against the Company based upon any of the Indenture, the
Notes and this Agreement would be declared enforceable against the Company by the
Courts of the Republic of Colombia, without reconsideration or reexamination of the
merits, provided, that (i) international treaties or the laws of the
country of such foreign court grant reciprocity to the enforcement of judgments of
Courts of the Republic of Colombia, (ii) the party against whom the judgment was
rendered, or its agent, was personally served in such action within such foreign
jurisdiction, (iii) the judgment arises out of a personal action against the
defendant, and does not refer to property rights (in rem rights) existing on the
assets located in
- 15 -
the Republic of Colombia, (iv) the obligation in respect of which the judgment
was rendered is lawful in the Republic of Colombia and does not contradict the public
policy the Republic of Colombia, (v) the judgment is properly authenticated by
diplomatic or consular officers of the Republic of Colombia or pursuant to the 1961
Hague Convention on the legalization of documents, (vi) a copy of the final judgment
is translated into Spanish by a licensed translator, (vii) the judgment is final under
the laws under which it was issued, (viii) the controversy is not, under Colombian
law, assigned to the exclusive jurisdiction of Colombian courts, (ix) no pending or
finalized litigation exists in the Republic of Colombia between the same parties and
originating in the same cause of action and (x) exequatur proceedings are carried out
before the competent Colombian court; and
(ss) it is not necessary under the laws of the Republic of Colombia or any
political subdivision thereof or authority or agency therein in order to enable a
subsequent purchaser of Notes or an owner of any interest therein to enforce its
rights under the Notes or to enable the Underwriters to enforce their rights under any
of the Indenture, the Notes and this Agreement that it should, as a result solely or
its holding of Notes, be licensed, qualified, or otherwise entitled to carry on
business in the Republic of Colombia or any political subdivision thereof or authority
or agency therein.
In addition, any certificate signed by any officer of the Company and delivered to the
Underwriters or counsel for the Underwriters in connection with the offering of the Notes shall be
deemed to be a representation and warranty by the Company, as to matters covered thereby, to each
Underwriter.
4. Certain Covenants of the Company. The Company hereby agrees:
(a) to furnish such information as may be required and otherwise to cooperate in
qualifying the Notes for offering and sale under the securities or blue sky laws of
such states or other jurisdictions as you may designate and to maintain such
qualifications in effect so long as you may request for the distribution of the Notes;
provided, however, that the Company shall not be required to qualify
as a foreign corporation or to consent to the service of process under the laws of any
such jurisdiction (except service of process with respect to the offering and sale of
the Notes); and to promptly advise you of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Notes for
offer or sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose;
(b) to make available to the Underwriters in New York City, as soon as
practicable after this Agreement becomes effective, and thereafter from time to time
to furnish to the Underwriters, as many copies of the Prospectus (or of the Prospectus
as amended or supplemented if the Company shall have made any amendments or
supplements thereto after the effective date of the Registration Statement) as the
Underwriters may reasonably request for the purposes contemplated by the Act; in case
any Underwriter is required to deliver (whether
- 16 -
physically or through compliance with Rule 172 under the Act or any similar
rule), in connection with the sale of the Notes, a prospectus after the nine-month
period referred to in Section 10(a)(3) of the Act, or after the time a post-effective
amendment to the Registration Statement is required pursuant to Item 512(a) of
Regulation S-K under the Act, the Company will prepare, at its expense, promptly upon
request such amendment or amendments to the Registration Statement and the Prospectus
as may be necessary to permit compliance with the requirements of Section 10(a)(3) of
the Act or Item 512(a) of Regulation S-K under the Act, as the case may be;
(c) if, at the time this Agreement is executed and delivered, it is necessary or
appropriate for a post-effective amendment to the Registration Statement, or a
Registration Statement under Rule 462(b) under the Act, to be filed with the
Commission and become effective before the Notes may be sold, the Company will use its
best efforts to cause such post-effective amendment or such Registration Statement to
be filed and become effective, and will pay any applicable fees in accordance with the
Act, as soon as possible; and the Company will advise you promptly (i) when such
post-effective amendment or such Registration Statement has become effective, and (ii)
if Rule 430A under the Act is used, when the Prospectus is filed with the Commission
pursuant to Rule 424(b) under the Act (which the Company agrees to file in a timely
manner in accordance with such Rules);
(d) if, at any time during the period when a prospectus is required by the Act to
be delivered by the Underwriters (whether physically or through compliance with Rule
172 under the Act or any similar rule) in connection with any sale of Notes, the
Registration Statement shall cease to comply with the requirements of the Act with
respect to eligibility for the use of the form on which the Registration Statement was
filed with the Commission or the Registration Statement shall cease to be an
“automatic shelf registration statement” (as defined in Rule 405 under the Act) or the
Company shall have received, from the Commission, a notice, pursuant to Rule
401(g)(2), of objection to the use of the form on which the Registration Statement was
filed with the Commission, to (i) promptly notify you, (ii) promptly file with the
Commission a new registration statement under the Act, relating to the Notes, or a
post-effective amendment to the Registration Statement, which new registration
statement or post-effective amendment shall comply with the requirements of the Act
and shall be in a form satisfactory to you, (iii) use its commercially reasonable
efforts to cause such new registration statement or post-effective amendment to become
effective under the Act as soon as practicable, (iv) promptly notify you of such
effectiveness and (v) take all other action necessary or appropriate to permit the
public offering and sale of the Notes to continue as contemplated in the Prospectus;
all references herein to the Registration Statement shall be deemed to include each
such new registration statement or post-effective amendment, if any;
- 17 -
(e) if the third anniversary of the initial effective date of the Registration
Statement (within the meaning of Rule 415(a)(5) under the Act) shall occur at any
time during the period when a prospectus is required by the Act to be delivered
(whether physically or through compliance with Rule 172 or Rule 173 under the Act or
any similar rule) in connection with any sale of Notes, to file with the Commission,
prior to such third anniversary, a new registration statement under the Act relating
to the Notes, which new registration statement shall comply with the requirements of
the Act (including, without limitation, Rule 415(a)(6) under the Act) and shall be in
a form satisfactory to you; such new registration statement shall constitute an
“automatic shelf registration statement” (as defined in Rule 405 under the Act);
provided, however, that if the Company is not then eligible to file an
“automatic shelf registration statement” (as defined in Rule 405 under the Act), then
such new registration statement need not constitute an “automatic shelf registration
statement” (as defined in Rule 405 under the Act), but the Company shall; use its best
efforts to cause such new registration statement to become effective under the Act as
soon as practicable, but in any event within 180 days after such third anniversary and
promptly notify you of such effectiveness; the Company shall take all other action
necessary or appropriate to permit the public offering and sale of the Notes to
continue as contemplated in the Prospectus; all references herein to the Registration
Statement shall be deemed to include each such new registration statement, if any;
(f) to advise you promptly, confirming such advice in writing, of any request by
the Commission for amendments or supplements to the Registration Statement, any
Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing Prospectus or for
additional information with respect thereto, or of notice of institution of
proceedings for, or the entry of a stop order, suspending the effectiveness of the
Registration Statement and, if the Commission should enter a stop order suspending the
effectiveness of the Registration Statement, to use its best efforts to obtain the
lifting or removal of such order as soon as possible; to advise you promptly of any
proposal to amend or supplement the Registration Statement, any Pre-Pricing Prospectus
or the Prospectus, and to provide you and Underwriters’ counsel copies of any such
documents for review and comment a reasonable amount of time prior to any proposed
filing and to file no such amendment or supplement to which you shall reasonably
object in writing;
(g) subject to Section 4(f) hereof, to file promptly all reports and documents
and any preliminary or definitive proxy or information statement required to be filed
by the Company with the Commission in order to comply with the Exchange Act for so
long as a prospectus is required by the Act to be delivered (whether physically or
through compliance with Rule 172 or Rule 173 under the Act or any similar rule) in
connection with any sale of Notes; and to provide you, for your review and comment,
with a copy of such reports and statements and other documents to be filed by the
Company pursuant to Section 13, 14 or 15(d) of the Exchange Act during such period a
reasonable amount of time (in light of the circumstances) prior to any proposed
filing, and to file no such report, statement or document to which you shall have
reasonably objected in writing; and to promptly
notify you of such filing;
- 18 -
(h) to advise the Underwriters promptly of the happening of any event within the
period during which a prospectus is required by the Act to be delivered (whether
physically or through compliance with Rule 172 under the Act or any similar rule) in
connection with any sale of Notes, which event could require the making of any change
in the Prospectus then being used so that the Prospectus would not include an untrue
statement of a material fact or omit to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which they are made,
not misleading, and to advise the Underwriters promptly if, during such period, it
shall become necessary to amend or supplement the Prospectus to cause the Prospectus
to comply with the requirements of the Act, and, in each case, during such time,
subject to Section 4(f) hereof, to prepare and furnish to the Underwriters promptly
such amendments or supplements to such Prospectus as may be necessary to reflect any
such change or to effect such compliance;
(i) to furnish to you two copies of the Registration Statement, as initially
filed with the Commission, and of all amendments thereto (including all exhibits
thereto and documents incorporated by reference therein) and sufficient copies of the
foregoing (other than exhibits) for distribution of a copy to each of the other
Underwriters;
(j) to furnish to you as early as practicable prior to the time of purchase, but
not later than one business days prior thereto, a copy of the latest available
unaudited interim and monthly consolidated financial statements of the Company which
have been read by the Company’s independent registered public accountants, if any, as
stated in their letter to be furnished pursuant to Section 5(c) hereof;
(k) to apply the net proceeds from the sale of the Notes in the manner set forth
under the caption “Use of proceeds” in the Prospectus;
(l) to pay all costs, expenses, fees and taxes in connection with (i) the
preparation and filing of the Registration Statement, each Base Prospectus, each
Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus, each Permitted Free
Writing Prospectus required to be filed and any amendments or supplements thereto, and
the printing and furnishing of copies of each thereof to the Underwriters and to
dealers (including costs of mailing and shipment), (ii) the registration,
authorization, authentication, issue, sale and delivery of the Notes including any
stock or transfer taxes and stamp or similar duties payable upon the sale, issuance or
delivery of the Notes to the Underwriters, (iii) the producing, word processing and/or
printing of this Agreement, any agreement among the Underwriters, any dealer
agreements and any closing documents (including compilations thereof) and the
reproduction and/or printing and furnishing of copies of each thereof to the
Underwriters and (except closing documents) to dealers (including costs of mailing and
shipment), (iv) the qualification of the Notes for
- 19 -
offering and sale under Colombian, United States, state or other foreign laws and
the determination of their eligibility for investment under Colombian, United States,
state or other foreign law (including the legal fees and filing fees and other
reasonable disbursements of counsel for the Underwriters) and the printing and
furnishing of copies of any blue sky surveys or legal investment surveys to the
Underwriters and to dealers, (v) any listing of the Notes on any securities exchange
or qualification of the Notes for quotation on the NYSE, (vi) the inclusion of the
Notes in the book-entry system of The Depository Trust Company (“DTC”), (vii)
the rating of the Notes by rating agencies, (viii) the fees and expenses of the
Trustee and its counsel, (ix) the costs and expenses of the Company relating to
presentations or meetings undertaken in connection with the marketing of the offering
and sale of the Notes to prospective investors and the Underwriters’ sales forces,
including, without limitation, expenses associated with the production of road show
slides and graphics, fees and expenses of any consultants engaged in connection with
the road show presentations, travel, lodging and other expenses incurred by the
officers of the Company and any such consultants, (x) all the reasonable fees and
expenses of the Underwriters (including, without limitation, reasonable legal fees and
expenses of the Underwriters including an U.S. counsel and a local counsel), and (xi)
the performance of the Company’s other obligations hereunder;
(m) to comply with Rule 433(d) under the Act (without reliance on Rule 164(b)
under the Act) and with Rule 433(g) under the Act;
(n) not to, and to cause the subsidiaries not to, take, directly or indirectly,
any action designed, or which will constitute, or has constituted, or might reasonably
be expected to cause or result in the stabilization or manipulation of the price of
any security of the Company to facilitate the sale or resale of the Notes;
(o) to use its commercially reasonable efforts to cause the Notes to be listed on
the NYSE and to maintain the listing of the Notes on the NYSE;
(p) to comply with its obligations under the letter of representations to DTC
relating to the approval of the Notes by DTC for “book-entry” transfer and to use its
best efforts to obtain approval of the Notes by DTC for “book-entry” transfer; and
(q) during the period from the date hereof through and including the date that is
45 days after the date hereof, without the prior written consent of the Underwriters,
offer, sell, contract to sell or otherwise dispose of any debt securities outside the
Republic of Colombia issued or guaranteed by the Company or any Significant Subsidiary
and having a tenor of more than one year.
5. Conditions of Underwriters’ Obligations. The several obligations of the
Underwriters hereunder are subject to the accuracy of the representations and warranties on the
part of the Company on the date hereof and at the time of purchase, the performance by the
- 20 -
Company of its obligations hereunder and to the following additional conditions precedent:
(a) The Company shall furnish to you at the time of purchase, an opinion and
letter of Xxxxxxxx & Xxxxxxxx LLP, United States counsel for the Company, addressed to
the Underwriters, and dated the Closing Date, with executed copies for each of the
other Underwriters, and in form and substance satisfactory to the Underwriters, in the
form set forth in Exhibit A hereto.
(b) The Company shall furnish to you at the time of purchase, an opinion of Xxxxx
Xxxxxx Abogados, Colombian counsel for the Company, addressed to the Underwriters, and
dated the Closing Date, with executed copies for each of the other Underwriters, and
in form and substance satisfactory to the Underwriters, in the form set forth in
Exhibit B hereto.
(c) The Company shall furnish to you at the time of purchase, an opinion of
Xxxxxxxxx Xxxx Mesa, Vice President General Secretary and internal counsel for the
Company, addressed to the Underwriters, and dated the Closing Date, with executed
copies for each of the Underwriters, and in form and substance satisfactory to the
Underwriters.
(d) You shall have received from Deloitte and Touche Ltda. letters dated the date
of this Agreement and the Closing Date, and addressed to the Underwriters (with
executed copies for each of the Underwriters) in the forms satisfactory to the
Underwriters, which letters shall cover, without limitation, the certain financial
information contained in the Registration Statement, the Pre-Pricing Prospectuses, the
Prospectus and the Permitted Free Writing Prospectuses, if any.
(e) You shall have received from PricewaterhouseCoopers S.A. de C.V. letters
dated the date of this Agreement and the Closing Date, and addressed to the
Underwriters (with executed copies for each of the Underwriters) in the forms
satisfactory to the Underwriters, which letters shall cover the financial information
with respect to Banagricola contained in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any.
(f) You shall have received at the time of purchase, the favorable opinion of
White & Case LLP, United States counsel for the Underwriters, in form and substance
reasonably satisfactory to the Underwriters.
(g) You shall have received at the time of purchase, the favorable opinion of
Brigard & Xxxxxxx Abogados, Colombian counsel for the Underwriters, in form and
substance reasonably satisfactory to the Underwriters.
(h) No Prospectus or amendment or supplement to the Registration Statement or the
Prospectus shall have been filed to which you shall have objected in writing.
- 21 -
(i) The Registration Statement and any registration statement required to be
filed, prior to the sale of the Notes, under the Act pursuant to Rule 462(b) shall
have been filed and shall have become effective under the Act. The Prospectus
Supplement shall have been filed with the Commission pursuant to Rule 424(b) under the
Act at or before 5:30 P.M., New York City time, on the second full business day after
the date of this Agreement (or such earlier time as may be required under the Act).
(j) Prior to and at the time of purchase, no stop order with respect to the
effectiveness of the Registration Statement shall have been issued under the Act or
proceedings initiated under Section 8(d) or 8(e) of the Act.
(k) The Company will, at the time of purchase, deliver to you a certificate of
its Executive Vice President and its Chief Financial Officer, dated the time of
purchase, in the form attached as Exhibit C hereto.
(l) The Company will deliver to you a certificate of its Vice President of Risk
Management with respect to certain financial information contained in the Prospectus,
dated the time of purchase, in the form and substance reasonably satisfactory to the
Underwriters.
(m) The Notes shall have been approved for listing on the NYSE, subject only to
notice of issuance at or prior to the time of purchase.
(n) The National Association of Securities Dealers, Inc. (the “NASD”)
shall not have raised any objection with respect to the fairness or reasonableness of
the underwriting, or other arrangements of the transactions, contemplated hereby.
(o) The Issuer and the Trustee shall have executed and, substantially
contemporaneously with the time of purchase, delivered the Indenture and the Notes and
the Underwriters shall have received copies thereof.
(p) No action shall have been taken and no statute, rule, regulation or order
shall have been enacted, adopted or issued by any Colombian or other foreign, United
States federal or state governmental or regulatory authority that would, as of the
Closing Date, prevent the issuance or sale of the Notes; and no injunction or order of
any Colombian or other foreign, United States federal or state court shall have been
issued that would, as of the Closing Date, prevent the issuance or sale of the Notes.
6. Effective Date of Agreement; Termination. This Agreement shall become effective
when the parties hereto have executed and delivered this Agreement.
The obligations of the several Underwriters hereunder shall be subject to termination in the
absolute discretion of the Underwriters if (i) since the Applicable Time there has been any change
or any development involving a prospective change in the business,
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properties, management, financial condition or results of operations of the Company and the
subsidiaries taken as a whole, the effect of which change or development is, in the sole judgment
of the Underwriters, so material and adverse as to make it impractical or inadvisable to proceed
with the public offering or the delivery of the Notes on the terms and in the manner contemplated
in the Disclosure Package or the Prospectus or (ii) since the Applicable Time there shall have
occurred: (A) a suspension or material limitation in trading in securities generally on the New
York Stock Exchange (“NYSE”), or the Bolsa de Valores de Colombia (the Colombian Stock
Exchange); (B) a suspension or material limitation in trading in the Company’s securities on the
NYSE; (C) a general moratorium on commercial banking activities declared by either federal,
Colombian or New York State authorities or a material disruption in commercial banking or
securities settlement or clearance services in the United States or the Republic of Colombia; (D)
an outbreak or escalation of hostilities or acts of terrorism involving the United States or the
Republic of Colombia or a declaration by the United States or the Republic of Colombia of a
national emergency or war; (E) a change or development involving a prospective change in Colombian
taxes affecting the Company, the Notes or the transfer thereof or the imposition of exchange
controls by the Republic of Colombia that may limit or in any way would materially and adversely
affect the financial markets or the market for the Notes or materially impair the ability of the
Underwriters to purchase, hold or effect resales of the Notes on the terms and in the manner
contemplated by this Agreement, the Disclosure Package and the Prospectus; or (F) any other
calamity or crisis or any change in financial, political or economic conditions in the United
States or elsewhere, if the effect of any such event specified in clause (D), (E) or (F), in the
sole judgment of the Underwriters, makes it impractical or inadvisable to proceed with the public
offering or the delivery of the Notes on the terms and in the manner contemplated in the Disclosure
Package or the Prospectus or (iii) since the Applicable Time, there shall have occurred any
downgrading, or any notice or announcement shall have been given or made of: (A) any intended or
potential downgrading or (B) any watch, review or possible change that does not indicate an
affirmation or improvement in the rating accorded any securities of or guaranteed by the Company by
any “nationally recognized statistical rating organization,” as that term is defined in Rule
436(g)(2) under the Act.
If the Underwriters elect to terminate this Agreement as provided in this Section 6, the
Company and each other Underwriter shall be notified promptly in writing.
If the sale to the Underwriters of the Notes, as contemplated by this Agreement, is not
carried out by the Underwriters for any reason permitted under this Agreement, or if such sale is
not carried out because the Company shall be unable to comply with any of the terms of this
Agreement, the Company shall not be under any obligation or liability under this Agreement (except
to the extent provided in Section 4(l)); and the Underwriters shall be under no obligation or
liability to the Company under this Agreement (except to the extent provided in Section 7 hereof)
or to one another hereunder.
7. Indemnity and Contribution.
(a) The Company agrees to indemnify, defend and hold harmless each Underwriter
its affiliates, its partners, directors and officers, and any person who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20
- 23 -
of the Exchange Act, and the successors and assigns of all of the foregoing
persons, from and against any loss, damage, expense, liability or claim (including the
reasonable cost of investigation) which, jointly or severally, any such Underwriter or
any such person may incur under the Act, the Exchange Act, the common law or
otherwise, insofar as such loss, damage, expense, liability or claim arises out of or
is based upon (i) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or in the Registration Statement as amended
by any post-effective amendment thereof by the Company) or arises out of or is based
upon any omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, except insofar as
any such loss, damage, expense, liability or claim arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained in, and in
conformity with information concerning such Underwriter furnished in writing by or on
behalf of such Underwriter through you to the Company expressly for use in, the
Registration Statement or arises out of or is based upon any omission or alleged
omission to state a material fact in the Registration Statement in connection with
such information, which material fact was not contained in such information and which
material fact was required to be stated in such Registration Statement or was
necessary to make such information not misleading or (ii) any untrue statement or
alleged untrue statement of a material fact included in any Prospectus (the term
Prospectus for the purpose of this Section 7 being deemed to include any Base
Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus and
any amendments or supplements to the foregoing), in any Permitted Free Writing
Prospectus, in any “issuer information” (as defined in Rule 433 under the Act) of the
Company or in any Prospectus together with any combination of one or more of the
Permitted Free Writing Prospectuses, if any, or arises out of or is based upon any
omission or alleged omission to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made, not
misleading, except, with respect to such Prospectus or Permitted Free Writing
Prospectus, insofar as any such loss, damage, expense, liability or claim arises out
of or is based upon any untrue statement or alleged untrue statement of a material
fact contained in, and in conformity with information concerning such Underwriter
furnished in writing by or on behalf of such Underwriter through you to the Company
expressly for use in, such Prospectus or Permitted Free Writing Prospectus or arises
out of or is based upon any omission or alleged omission to state a material fact in
such Prospectus or Permitted Free Writing Prospectus in connection with such
information, which material fact was not contained in such information and which
material fact was necessary in order to make the statements in such information, in
light of the circumstances under which they were made, not misleading.
(b) Each Underwriter severally agrees to indemnify, defend and hold harmless the
Company, its directors and officers, and any person who controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act, and the
successors and assigns of all of the foregoing persons, from and against any loss,
damage, expense, liability or claim (including the reasonable
- 24 -
cost of investigation) which, jointly or severally, the Company or any such
person may incur under the Act, the Exchange Act, the common law or otherwise, insofar
as such loss, damage, expense, liability or claim arises out of or is based upon (i)
any untrue statement or alleged untrue statement of a material fact contained in, and
in conformity with information concerning such Underwriter furnished in writing by or
on behalf of such Underwriter through you to the Company expressly for use in, the
Registration Statement (or in the Registration Statement as amended by any
post-effective amendment thereof by the Company), or arises out of or is based upon
any omission or alleged omission to state a material fact in such Registration
Statement in connection with such information, which material fact was not contained
in such information and which material fact was required to be stated in such
Registration Statement or was necessary to make such information not misleading or
(ii) any untrue statement or alleged untrue statement of a material fact contained in,
and in conformity with information concerning such Underwriter furnished in writing by
or on behalf of such Underwriter through you to the Company expressly for use in, a
Prospectus or a Permitted Free Writing Prospectus, or arises out of or is based upon
any omission or alleged omission to state a material fact in such Prospectus or
Permitted Free Writing Prospectus in connection with such information, which material
fact was not contained in such information and which material fact was necessary in
order to make the statements in such information, in light of the circumstances under
which they were made, not misleading, it being understood and agreed that the only
such information furnished by any Underwriter consists of the following information in
the Prospectus or a Permitted Free Writing Prospectus furnished on behalf of the
Underwriter under the caption Underwriting in the third sentence of the third
paragraph and the fourth and fifth paragraphs (such information being defined as the
“Underwriter Information”).
(c) If any action, suit or proceeding (each, a “Proceeding”) is brought
against a person (an “indemnified party”) in respect of which indemnity may be
sought against the Company or an Underwriter (as applicable, the “indemnifying
party”) pursuant to subsection (a) or (b), respectively, of this Section 7, such
indemnified party shall promptly notify such indemnifying party in writing of the
institution of such Proceeding and such indemnifying party shall assume the defense of
such Proceeding, including the employment of counsel reasonably satisfactory to such
indemnified party and payment of all fees and expenses; provided,
however, that the omission to so notify such indemnifying party shall not
relieve such indemnifying party from any liability which such indemnifying party may
have to any indemnified party or otherwise. The indemnified party or parties shall
have the right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or parties
unless the employment of such counsel shall have been authorized in writing by the
indemnifying party in connection with the defense of such Proceeding or the
indemnifying party shall not have, within a reasonable period of time in light of the
circumstances, employed counsel to defend such Proceeding or such indemnified party or
parties shall have reasonably concluded that there may be defenses available to it or
them which are different from, additional to or in conflict with
- 25 -
those available to such indemnifying party (in which case such indemnifying party
shall not have the right to direct the defense of such Proceeding on behalf of the
indemnified party or parties), in any of which events such fees and expenses shall be
borne by such indemnifying party and paid as incurred (it being understood, however,
that such indemnifying party shall not be liable for the expenses of more than one
separate counsel (in addition to any local counsel) in any one Proceeding or series of
related Proceedings in the same jurisdiction representing the indemnified parties who
are parties to such Proceeding). The indemnifying party shall not be liable for any
settlement of any Proceeding effected without its written consent but if settled with
its written consent such indemnifying party agrees to indemnify and hold harmless the
indemnified party or parties from and against any loss or liability by reason of such
settlement. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the second sentence of this
Section 7(c), then the indemnifying party agrees that it shall be liable for any
settlement of any Proceeding effected without its written consent if (i) such
settlement is entered into more than 60 days after receipt by such indemnifying party
of the aforesaid request, (ii) such indemnifying party shall not have fully reimbursed
the indemnified party in accordance with such request prior to the date of such
settlement and (iii) such indemnified party shall have given the indemnifying party at
least 30 days’ prior notice of its intention to settle. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any settlement of
any pending or threatened Proceeding in respect of which any indemnified party is or
could have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of such
indemnified party from all liability on claims that are the subject matter of such
Proceeding and does not include an admission of fault or culpability or a failure to
act by or on behalf of such indemnified party.
(d) If the indemnification provided for in this Section 7 is unavailable to an
indemnified party under subsections (a) and (b) of this Section 7 or insufficient to
hold an indemnified party harmless in respect of any losses, damages, expenses,
liabilities or claims referred to therein, then each applicable indemnifying party
shall contribute to the amount paid or payable by such indemnified party as a result
of such losses, damages, expenses, liabilities or claims (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one hand
and the Underwriters on the other hand from the offering of the Notes or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, damages, expenses, liabilities or claims, as well as any
other relevant equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be deemed to be in the
same respective proportions as the total proceeds from the offering (net of
- 26 -
underwriting discounts and commissions but before deducting expenses) received by
the Company, and the total underwriting discounts and commissions received by the
Underwriters, bear to the aggregate public offering price of the Notes. The relative
fault of the Company on the one hand and of the Underwriters on the other shall be
determined by reference to, among other things, whether the untrue statement or
alleged untrue statement of a material fact or omission or alleged omission relates to
information supplied by the Company or by the Underwriters and the parties’ relative
intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by a party as a result of the
losses, damages, expenses, liabilities and claims referred to in this subsection shall
be deemed to include any legal or other fees or expenses reasonably incurred by such
party in connection with investigating, preparing to defend or defending any
Proceeding.
(e) The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such purpose) or
by any other method of allocation that does not take account of the equitable
considerations referred to in subsection (d) above. Notwithstanding the provisions of
this Section 7, no Underwriter shall be required to contribute any amount in excess of
the amount equal to the total underwriting discounts and commissions received by such
Underwriters. 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 Underwriters’ obligations to
contribute pursuant to this Section 7 are several in proportion to their respective
underwriting commitments and not joint.
(f) The indemnity and contribution agreements contained in this Section 7 and the
covenants, warranties and representations of the Company contained in this Agreement
shall remain in full force and effect regardless of any investigation made by or on
behalf of any Underwriter, its partners, directors or officers or any person
(including each partner, officer or director of such person) who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act, or by or on behalf of the Company its directors or officers or any person who
controls the Company within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, and shall survive any termination of this Agreement or the issuance and
delivery of the Notes. The Company and each Underwriter agree promptly to notify each
other of the commencement of any Proceeding against it and, in the case of the
Company, against any of their officers or directors in connection with the issuance
and sale of the Notes, or in connection with the Registration Statement, any Base
Prospectus, any Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing
Prospectus.
8. Notices. Except as otherwise herein provided, all statements, requests, notices
and agreements shall be in writing or by telegram or facsimile and, if to the Underwriters, shall
be sufficient in all respects if delivered or sent to UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx
- 00 -
Xxxx, XX 00000-0000, Attention: Syndicate Department and X.X. Xxxxxx Securities Inc., 270
Park, New York, NY 10171-0026, Attention: Syndicate Department and, if to the Company, shall be
sufficient in all respects if delivered or sent to the Company at the offices of the Company at
Xxxxxxx 00 Xx. 00-00, Xxxxxxxx, Xxxxxxxx, Attention: Legal Department.
9. Governing Law; Construction. This Agreement and any claim, counterclaim or dispute
of any kind or nature whatsoever arising out of or in any way relating to this Agreement
(“Claim”), directly or indirectly, shall be governed by, and construed in accordance with,
the laws of the State of New York. The section headings in this Agreement have been inserted as a
matter of convenience of reference and are not a part of this Agreement.
10. Maintenance of Office or Agent for Service of Process. The Company shall maintain
an office or agent for service of process in the Borough of Manhattan, The City of New York, where
notices to and demands upon the Company in respect of this Agreement may be served. Initially this
agent will be CT Corporation System, and the Company will agree not to change the designation of
such agent without prior notice to the Trustee and designation of a replacement agent in the
Borough of Manhattan, The City of New York
11. Submission to Jurisdiction. Except as set forth below, no Claim may be commenced,
prosecuted or continued in any court other than the courts of the State of New York located in the
City and County of New York or in the United States District Court for the Southern District of New
York, which courts shall have jurisdiction over the adjudication of such matters, and the Company
consent to the jurisdiction of such courts and personal service with respect thereto. The Company
hereby consents to personal jurisdiction, service and venue in any court in which any Claim arising
out of or in any way relating to this Agreement is brought by any third party against any
Underwriter or any indemnified party. Each Underwriter and the Company (on its behalf and, to the
extent permitted by applicable law, on behalf of its affiliates) waive all right to trial by jury
in any action, proceeding or counterclaim (whether based upon contract, tort or otherwise) in any
way arising out of or relating to this Agreement. The Company agrees that a final judgment in any
such action, proceeding or counterclaim brought in any such court shall be conclusive and binding
upon the Company and may be enforced in any other courts to the jurisdiction of which the Company
is or may be subject, by suit upon such judgment subject to the exquatur provisions set forth in
Section 3(ss) above.
12. Parties at Interest. The Agreement herein set forth has been and is made solely
for the benefit of the Underwriters and the Company and to the extent provided in Section 7 hereof
the controlling persons, partners, directors and officers referred to in such Section, and their
respective successors, assigns, heirs, personal representatives and executors and administrators.
No other person, partnership, association or corporation (including a purchaser, as such purchaser,
from any of the Underwriters) shall acquire or have any right under or by virtue of this Agreement.
13. No Fiduciary Relationship. The Company hereby acknowledges that the Underwriters
are acting solely as underwriters in connection with the purchase and sale of the Company’s
securities. The Company further acknowledges that the Underwriters are acting
- 28 -
pursuant to a contractual relationship created solely by this Agreement entered into on an
arm’s length basis, and in no event do the parties intend that the Underwriters act or be
responsible as a fiduciary to the Company, its management, stockholders or creditors or any other
person in connection with any activity that the Underwriters may undertake or have undertaken in
furtherance of the purchase and sale of the Company’s securities, either before or after the date
hereof. The Underwriters hereby expressly disclaim any fiduciary or similar obligations to the
Company, either in connection with the transactions contemplated by this Agreement or any matters
leading up to such transactions, and the Company hereby confirms its understanding and agreement to
that effect. The Company and the Underwriters agree that they are each responsible for making
their own independent judgments with respect to any such transactions and that any opinions or
views expressed by the Underwriters to the Company regarding such transactions, including, but not
limited to, any opinions or views with respect to the price or market for the Company’s securities,
do not constitute advice or recommendations to the Company. The Company hereby waives and
releases, to the full extent permitted by law, any claims that the Company may have against the
Underwriters with respect to any breach or alleged breach of any fiduciary or similar duty to the
Company in connection with the transactions contemplated by this Agreement or any matters leading
up to such transactions. Any review by the Underwriters of the Company, the transactions
contemplated hereby or other matters relating to such transactions will be performed solely for the
benefit of the Underwriters and shall not be on behalf of the Company.
14. Counterparts. This Agreement may be signed by the parties in one or more
counterparts which together shall constitute one and the same agreement among the parties.
15. Successors and Assigns. This Agreement shall be binding upon the Underwriters and
the Company and their successors and assigns and any successor or assign of any substantial portion
of the Company’s and any of the Underwriters’ respective businesses and/or assets.
16. Foreign Taxes. All payments by the Company to the Underwriters hereunder shall be
made free and clear of, and without deduction or withholding for or on account of, any and all
present and future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions
or withholdings, now or hereinafter imposed, levied, collected, withheld or assessed by the
government of the Republic of Colombia or any other jurisdiction from or through which payment is
made or deemed to be made, or any political subdivision thereof or therein excluding (i) any such
tax imposed by reason of the Underwriters having some present or former connection with any such
jurisdiction other than their participation as the Underwriters hereunder, and the receipt of
payments hereunder, and (ii) any income or franchise tax on the overall net income of the
Underwriters imposed by the United States or by the State of New York or any political subdivision
of the United States or of the States of New York (all such non-excluded taxes, “Foreign
Taxes”). If the Company is prevented by operation of law or otherwise from paying, causing to
be paid or remitting that portion of amounts payable hereunder represented by Foreign Taxes
withheld or deducted, then amounts payable under this Agreement, to the extent permitted by law,
shall be increased to such amount as is necessary to yield and remit to the Underwriters an amount
that, after withholding or deduction of all Foreign Taxes (including all Foreign Taxes payable on
such increased payments) equals the amount that would have been payable if no Foreign Taxes
applied.
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17. Judgment Currency. The Company agrees to indemnify the Underwriters against any
loss incurred by the Underwriters as a result of any judgment or order being given or made for any
amount due hereunder and such judgment or order being expressed and paid in a currency (the
“Judgment Currency”) other than United States dollars and as a result of any variation as
between (i) the rate of exchange at which the United States dollar amount is converted into the
Judgment Currency for the purpose of such judgment or order, and (ii) the rate of exchange at which
the Underwriters are able to purchase United States dollars with the amount of the Judgment
Currency actually received by the Underwriters. The foregoing indemnity shall constitute a
separate and independent obligation of the Company and shall continue in full force and effect
notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall
include any premiums and costs of exchange payable in connection with the purchase of, or
conversion into, the relevant currency.
18. Miscellaneous. UBS, an indirect, wholly owned subsidiary of UBS AG, is not a bank
and is separate from any affiliated bank, including any U.S. branch or agency of UBS AG. Because
UBS is a separately incorporated entity, it is solely responsible for its own contractual
obligations and commitments, including obligations with respect to sales and purchases of
securities. Securities sold, offered or recommended by UBS are not deposits, are not insured by
the Federal Deposit Insurance Corporation, are not guaranteed by a branch or agency, and are not
otherwise an obligation or responsibility of a branch or agency.
JPMSI is not a bank. Because JPMSI is a separately incorporated entity, it is solely
responsible for its own contractual obligations and commitments, including obligations with respect
to sales and purchases of securities. Securities sold, offered or recommended by JPMSI are not
deposits, are not insured by the Federal Deposit Insurance Corporation, are not guaranteed by a
branch or agency, and are not otherwise an obligation or responsibility of a branch or agency.
[The Remainder of This Page Intentionally Left Blank; Signature Page Follows]
- 30 -
If the foregoing correctly sets forth the understanding among the Company and the several
Underwriters, please so indicate in the space provided below for that purpose, whereupon this
Agreement and your acceptance shall constitute a binding agreement among the Company and the
Underwriters.
| Very truly yours, Bancolombia S.A. |
|||||
| By: | /s/ XXXXX XXXXXXX XXXXXXXXX | ||||
| Name: Xxxxx Xxxxxxx Xxxxxxxxx | |||||
| Title: Financial Vicepresident | |||||
| Accepted and agreed to as of the date first above written, on behalf of themselves and the other several Underwriters named in Schedule A | ||||
| UBS Securities LLC | ||||
By:
|
/s/ XXXXXX COVUSOGLU | |||
| Name: Xxxxxx Covusoglu | ||||
| Title: Managing Director | ||||
By: |
/s/ XXXX X. XXXXXX | |||
| Name: Xxxx X. Xxxxxx | ||||
| Title: Director | ||||
| X.X. Xxxxxx Securities Inc. | ||||
By: |
/s/ XXXXX XXXXX | |||
| Name: Xxxxx Xxxxx | ||||
| Title: Executive Director | ||||
