Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ R▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Name: R▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Title: Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS SECURITIES CORP. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE BANK SECURITIES INC. UBS SECURITIES LLC. By: DEUTSCHE BANK SECURITIES INC. By: /s/J▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: J▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Director By: /s/ E▇▇▇▇▇ ▇▇▇▇ Name: E▇▇▇▇▇ ▇▇▇▇ Title: Director Underwriting Agreement dated July 25, 2012 Registration No. 333-168333 Representatives: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. UBS Securities LLC Title, Purchase Price and Description of Securities: Title: 1.875% Notes due 2022 Principal amount: $1,000,000,000 Purchase price: 97.998% of the principal amount of Notes plus accrued interest from July 30, 2012 Offering price: 98.398% of the principal amount of Notes plus accrued interest from July 30, 2012 Interest: Payable on February 1 and August 1, commencing on February 1, 2013. Sinking fund provisions: None. Redemption provisions: The Notes are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectus. Closing Date, Time and Location: July 30, 2012, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇ LLP, Worldwide Plaza, 8▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms: 1. Section 4(B)(a) - (h) are deleted. 2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than: (a) to any legal entity which is a qualified investor as defined in the Prospectus Directive; (b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or (c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates: (a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and (b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Each of the Issuer and the Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Issuer and the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Issuer or the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Issuer or the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Issuer or the Company on other matters) or any other obligation to the Issuer or the Company except the obligations expressly set forth in this Agreement and (iv) the Company it has consulted its own legal and financial advisors to the extent it deemed appropriate. The Each of the Issuer and the Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Issuer or the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. Very truly yours, INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ R▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Name: R▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Title: Vice President Treasurer IBM INTERNATIONAL GROUP CAPITAL LLC By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: Member of the Board of Managers and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Title: Executive Director For themselves and the other several Underwriters, if any, named in Schedule Scheduled II to the foregoing Agreement. BNP PARIBAS SECURITIES CORPSCHEDULE I Underwriting Agreement dated October 17, 2007 Registration No. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE BANK SECURITIES INC. UBS SECURITIES LLC. By: DEUTSCHE BANK SECURITIES INC. By: /s/J▇▇▇-▇▇▇▇▇▇-▇▇ ▇and 333-145104 Representatives: Bear, ▇▇▇▇▇▇▇ Name: J▇▇▇▇ ▇▇& Co. Inc., Deutsche Bank Securities Inc., ▇▇▇▇▇▇ Title: Managing Director By: /s/ E▇▇▇▇▇ ▇▇▇▇ Name: E▇▇▇▇▇ ▇▇▇▇ Title: Director Underwriting Agreement dated July 25, 2012 Registration No. 333-168333 Representatives: BNP Paribas Securities Corp. Citigroup Global Markets Brothers Inc. Deutsche Bank Securities Inc. UBS Securities LLC Title, Purchase Price and Description of Securities: Title: 1.875% Notes due 2022 Principal amount: $1,000,000,000 Purchase price: 97.998% of the principal amount of Notes plus accrued interest from July 30, 2012 Offering price: 98.398% of the principal amount of Notes plus accrued interest from July 30, 2012 Interest: Payable on February 1 and August 1, commencing on February 1, 2013. Sinking fund provisions: None. Redemption provisions: The Notes are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectus. Closing Date, Time and Location: July 30, 2012, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇ LLP, Worldwide Plaza, 8▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated Title, ▇▇▇ ▇▇▇▇Purchase Price and Description of Securities: Title: 5.05% Notes due 2012 Principal amount: $1,500,000,000 Purchase price: 99.671% of the principal amount of Notes plus accrued interest from October 22, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements2007 Offering price: 99.921% of the principal amount of Notes plus accrued interest from October 22, 2007 Maturity: October 22, 2012 Interest: Accruing from October 22, 2007, payable on April 22 and October 22 of each year, commencing on April 22, 2008 Sinking fund provisions: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’sarm's-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. INTERNATIONAL BUSINESS MACHINES CORPORATION Very truly yours, By: /s/ R▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Name: R▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Title: Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. BARCLAYS CAPITAL INC. BNP PARIBAS SECURITIES CORP. CITIGROUP GLOBAL MARKETS INC. ▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO. ▇.▇. ▇▇▇▇▇▇ SECURITIES INC. UBS SECURITIES LLC By: BARCLAYS CAPITAL INC. By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: Managing Director For themselves and the other several Underwriters, if any, named in Schedule Scheduled II to the foregoing Agreement. Underwriting Agreement dated September 11, 2007 Registration No. 333-145104 Representatives: Barclays Capital Inc. BNP PARIBAS SECURITIES CORP. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE BANK SECURITIES INC. UBS SECURITIES LLC. By: DEUTSCHE BANK SECURITIES INC. By: /s/J▇▇▇▇ Paribas Securities Corp Citigroup Global Markets Inc. ▇▇▇▇▇▇▇▇ Name: J, ▇▇▇▇▇ & Co. ▇.▇. ▇▇▇▇▇▇ Title: Managing Director By: /s/ E▇▇▇▇▇ ▇▇▇▇ Name: E▇▇▇▇▇ ▇▇▇▇ Title: Director Underwriting Agreement dated July 25, 2012 Registration No. 333-168333 Representatives: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. UBS Securities LLC Title, Purchase Price and Description of Securities: Title: 1.8755.70% Notes due 2022 2017 Principal amount: $1,000,000,000 3,000,000,000 Purchase price: 97.99899.254% of the principal amount of Notes plus accrued interest from July 30September 14, 2012 2007 Offering price: 98.39899.654% of the principal amount of Notes plus accrued interest from July 30September 14, 2012 2007 Interest: Payable on February 1 March 14 and August 1September 14 of each year, commencing on February 1March 14, 2013. 2008 Sinking fund provisions: None. Redemption provisions: The Notes are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectus. Closing Date, Time and Location: July 30September 14, 20122007, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇▇ LLP, Worldwide Plaza, 8▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:.
1. Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees has agreed that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: Each of the Underwriters has agreed that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company except as set forth in this underwriting agreement. In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents has represented and agrees agreed that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities notes to the public in that Relevant Member State other thanprior to the publication of a prospectus in relation to the notes which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of notes to the public in that Relevant Member State at any time:
(a) to any legal entity entities which is a qualified investor as defined are authorized or regulated to operate in the Prospectus Directivefinancial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(b) to fewer any legal entity which has two or more of
1. an average of at least 250 employees during the last financial year;
2. a total balance sheet of more than 100 or, if the Relevant Member State has implemented the relevant provision €43,000,000 and
3. an annual net turnover of the 2010 PD Amending Directive, 150, natural or legal persons (other more than qualified investors as defined in the Prospectus Directive)€50,000,000, as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offershown in its last annual or consolidated accounts; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall which do not require the Company or any Underwriter to publish publication by the issuer of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities Notes to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, State and the expression “Prospectus Directive” Directive means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the each Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United KingdomState.
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. INTERNATIONAL BUSINESS MACHINES CORPORATION Very truly yours, By: /s/ R▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Name: R▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Title: Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS SECURITIES CORP. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE BANK ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED RBS SECURITIES INC. UBS SECURITIES LLC. ▇▇▇▇▇ FARGO SECURITIES, LLC By: DEUTSCHE BANK SECURITIES INC. ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED By: /s/J/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: J▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Director By: /s/ E▇▇▇▇▇ ▇▇▇▇ Name: E▇▇▇▇▇ ▇▇▇▇ Title: Director Underwriting Agreement dated July 25, 2012 Registration No. 333-168333 Representatives: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche Bank ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated RBS Securities Inc. UBS Securities ▇▇▇▇▇ Fargo Securities, LLC Title, Purchase Price and Description of Securities: Title: 1.8750.450% Notes due 2022 2016
1. 625% Notes due 2020 Principal amount: 2016 Notes - $1,000,000,000 2020 Notes - $1,250,000,000 Purchase price: 97.9982016 Notes - 99.568% of the principal amount of 2016 Notes plus accrued interest from July 30May 7, 2012 Offering price: 98.3982013 2020 Notes – 98.949% of the principal amount of 2020 Notes plus accrued interest from July 30May 7, 2012 2013 Offering price: 2016 Notes - 99.718% of the principal amount of 2016 Notes plus accrued interest from May 7, 2013 2020 Notes – 99.249% of the principal amount of 2020 Notes plus accrued interest from May 7, 2013 Interest: 2016 Notes Payable on February 1 May 6 and August 1November 6 of each year, commencing on February 1November 6, 2013 2020 Notes - Payable on May 15 and November 15 of each year, commencing November 15, 2013. Sinking fund provisions: None. Redemption provisions: The Notes of each series are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectus. Closing Date, Time and Location: July 30May 7, 20122013, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇▇ LLP, Worldwide Plaza, 8▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
3. The last sentence of Section 7(b) shall be deleted and replaced by the following text: The Company acknowledges that the statements set forth in the last paragraph of the cover page of the Preliminary Final Prospectus and the Final Prospectus, the sentence “The underwriters have informed IBM that they intend to make a market in the Notes but are under no obligation to do so and such market making may be terminated at any time without notice.” and the statements contained in the fourth and seventh through ninth paragraphs and the first, fourth, fifth, sixth and eighth sentences of the tenth paragraph under the caption “Underwriting” in the Preliminary Final Prospectus and the Final Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in the Basic Prospectus, any Preliminary Final Prospectus, the Disclosure Package, any Issuer Free Writing Prospectus or the Final Prospectus, and you, as the Representatives, confirm that such statements are correct.
4. The following shall be an additional condition added to Section 5: The Company shall have furnished to the Representatives the opinion of ▇▇▇▇▇▇▇, Swaine & ▇▇▇▇▇ LLP, counsel to the Company, dated the Closing Date to the effect that the statements under the caption “United States Taxation” in the Disclosure Package and the Final Prospectus constitute a fair presentation of the material U.S. federal income tax consequences to holders of Securities.
5. For purposes of Section 8, the 2016 Notes and 2020 Notes shall be treated as two separate series of Securities, and Section 8 shall apply to each series as if this Underwriting Agreement applied solely to such series.
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. Very truly yours, INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ R▇Name: S▇▇▇▇ ▇▇▇ ▇▇▇▇ Name: R. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Title: Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS SECURITIES CORP. BARCLAYS BANK PLC CITIGROUP GLOBAL MARKETS LIMITED HSBC BANK PLC M▇▇▇▇▇▇ L▇▇▇▇ INTERNATIONAL MIZUHO INTERNATIONAL PLC SMBC NIKKO CAPITAL MARKETS LIMITED ING BANK N.V., BELGIAN BRANCH RBC EUROPE LIMITED U.S. BANCORP INVESTMENTS, INC. DEUTSCHE BANK SECURITIES INC. UBS SECURITIES LLC. B▇▇▇▇▇▇▇ VAN, LLC S▇▇▇▇ BROTHERS & CO By: DEUTSCHE BARCLAYS BANK SECURITIES INC. PLC By: /s/J/s/ E▇▇▇▇ ▇▇▇▇▇▇ Name: E▇▇▇▇ ▇▇▇▇▇▇ Title: Authorised Signatory By: /s/ Simi Alabl Name: Simi Alabl Title: Delegated Signatory By: /s/ M.Laidouni Name: M.Laidouni Title: Senior Legal Counsel By: /s/ A▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ Name: A▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ Title: Managing Director By: /s/ S▇▇▇▇▇ ▇▇▇▇▇ Name: S▇▇▇▇▇ ▇▇▇▇▇ Title: Executive Director By: /s/ S▇▇▇▇ ▇▇▇▇▇ Name: S▇▇▇▇ ▇▇▇▇▇ Title: Managing Director By: /s/ K▇▇▇ ▇▇▇▇▇ Name: K▇▇▇ ▇▇▇▇▇ Title: Global Head of Debt Syndicate By: /s/ W▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ Name: W▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ Title: Head Legal Capital Markets By: /s/ I▇▇▇ ▇▇▇▇▇▇ Name: I▇▇▇ ▇▇▇▇▇▇ Title: Duly Authorised Signatory By: /s/ S▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Name: JS▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Title: Managing Director By: /s/ E▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Name: E▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: CEO & President By: /s/ Kit T▇▇▇▇▇ Name: Kit T▇▇▇▇▇ Title: Senior Managing Director Underwriting Agreement dated February 2, 2022 Registration No. 333-230099 Representatives: Barclays Bank PLC 5 The North Colonnade Canary W▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Tel: +▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇ TitleAttn: Director Underwriting Agreement dated July 25, 2012 Registration No. 333-168333 RepresentativesDebt Syndicate Email: BNP Paribas Securities Corp. L▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Citigroup Global Markets Inc. Deutsche Limited Citigroup Centre Canada Square C▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Fax No.: +▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ Attention: Syndicate Desk HSBC Bank Securities Inc. UBS Securities LLC plc 8 ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Tel: +▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ Fax: +▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ Email: t▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ M▇▇▇▇▇▇ L▇▇▇▇ International 2 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ London, EC1A 1HQ United Kingdom Attention: Syndicate Desk Mizuho International plc 3▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, EC4M 7AU United Kingdom SMBC Nikko Capital Markets Limited O▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Telephone: +▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ Email address: L▇▇▇@▇▇▇▇▇▇▇▇▇-▇▇.▇▇▇ Attention: Legal Title, Purchase Price and Description of Securities: Title: 1.8750.875% Notes due 2022 2030 (the “2030 Notes”) 1.250% Notes due 2034 (the “2034 Notes”) Principal amount: $2030 Notes: €1,000,000,000 2034 Notes: €1,000,000,000 Purchase price: 97.9982030 Notes: 98.878% of the principal amount of Notes the Securities plus accrued interest from July 30and including February 9, 2012 Offering price2022 2034 Notes: 98.39898.737% of the principal amount of Notes the Securities plus accrued interest from July 30and including February 9, 2012 2022 Offering price: 2030 Notes: 99.203% of the principal amount of the Securities plus accrued interest from and including February 9, 2022 2034 Notes: 99.162% of the principal amount of the Securities plus accrued interest from and including February 9, 2022 Interest: 2030 Notes Payable on February 1 and August 19 of each year, commencing on February 19, 2013. 2023 2034 Notes Payable on February 9 of each year, commencing on February 9, 2023 Sinking fund provisions: None. Redemption provisions: The Notes Securities are redeemable in whole or in part, at the option of the Company, in whole upon the occurrence of certain tax events, or in whole or in part, each as described set forth in the Final ProspectusProspectus Supplement dated the date of this Agreement. Closing Date, Time and Location: July 30February 9, 20122022, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇ LLP, Worldwide PlazaW▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 8▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined unaudited capsule information in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer Disclosure Package and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United KingdomFinal Prospectus.
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. Very truly yours, INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ R▇▇▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇ III Name: R▇▇▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇ III Title: Vice President and Treasurer IBM Debt Offering The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS BARCLAYS BANK PLC CREDIT SUISSE SECURITIES CORP. CITIGROUP GLOBAL MARKETS INC. (EUROPE) LIMITED DEUTSCHE BANK SECURITIES INC. UBS SECURITIES LLC. AG, LONDON BRANCH THE ROYAL BANK OF SCOTLAND PLC By: DEUTSCHE BARCLAYS BANK SECURITIES INC. PLC By: /s/J/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: J▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Authorised Attorney By: CREDIT SUISSE SECURITIES (EUROPE) LIMITED By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: Managing Director By: /s/ E▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Director BY: DEUTSCHE BANK AG, LONDON BRANCH By: /s/ ▇▇▇▇▇▇ ▇▇▇▇ Name: E▇▇▇▇▇▇ ▇▇▇▇ Title: Managing Director By: /s/ Sibel Karantay Name: Sibel Karantay Title: Director THE ROYAL BANK OF SCOTLAND PLC By: /s/ ▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇ ▇▇▇▇▇▇ Title: Authorised Signatory BANCO SANTANDER, S.A. By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Executive Director By: /s/ ▇▇▇▇▇▇ Broecheler Name: ▇▇▇▇▇▇ Broecheler Title: Executive Director BANCA IMI S.P.A By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: Head of DCM Underwriting Agreement dated July 25November 19, 2012 2014 Registration No. 333-168333 190160 Representatives: BNP Paribas Barclays Bank PLC 5 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Tel: +▇▇(▇)▇▇ ▇▇▇▇ ▇▇▇▇ Fax: +▇▇(▇)▇▇ ▇▇▇▇ ▇▇▇▇ Attn: Debt Syndicate Credit Suisse Securities Corp. Citigroup Global Markets Inc. (Europe) Limited One ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Tel: ▇(▇▇) ▇▇▇▇ ▇▇▇▇ Fax: ▇(▇▇) ▇▇▇▇ ▇▇▇▇ Deutsche Bank Securities Inc. UBS Securities LLC AG, London Branch Winchester House ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ Fax Number: +▇▇ (▇▇▇) ▇▇▇ ▇▇▇▇ Attn: Syndicate Desk The Royal Bank of Scotland plc ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ Tel: +▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ Fax: +▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ Attn: New Issues, Syndicate Desk Title, Purchase Price and Description of Securities: Title: 1.8751.250% Notes due 2022 2023 Principal amount: $€1,000,000,000 Purchase price: 97.99899.453% of the principal amount of Notes the Securities plus accrued interest from July 30and including November 26, 2012 2014 Offering price: 98.39899.778% of the principal amount of Notes the Securities plus accrued interest from July 30and including November 26, 2012 2014 Interest: Payable on February 1 and August 1May 26 of each year, commencing on February 1May 26, 2013. 2015 Sinking fund provisions: None. Redemption provisions: The Notes Securities are redeemable in whole or in part, at the option of the Company, in whole upon the occurrence of certain tax events, or in whole or in part at a make whole amount, each as described set forth in the Final ProspectusProspectus Supplement dated the date of this Agreement. Closing Date, Time and Location: July 30November 26, 20122014, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇▇ LLP, Worldwide Plaza▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 8▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, 150 natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, as amended including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), by Directive 2010/73/EU and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United KingdomState.
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. Very truly yours, INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ R▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Name: R▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Title: Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS SECURITIES CORP. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE BANK CREDIT SUISSE SECURITIES INC(USA) LLC ▇.▇. UBS ▇▇▇▇▇▇ SECURITIES LLC. By: DEUTSCHE BANK SECURITIES INC. By: /s/JLLC ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. LLC By: CREDIT SUISSE SECURITIES (USA) LLC By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: J▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Managing Director Underwriting Agreement dated July 29, 2013 Registration No. 333-190160 Representatives: Citigroup Global Markets Inc. Credit Suisse Securities (USA) LLC ▇.▇. ▇▇▇▇▇▇ Securities LLC. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Director By: /s/ E▇▇▇▇▇ ▇▇▇▇ Name: E▇▇▇▇▇ ▇▇▇▇ Title: Director Underwriting Agreement dated July 25, 2012 Registration No. 333-168333 Representatives: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. UBS Securities & Co. LLC Title, Purchase Price and Description of Securities: Title: 1.8753.375% Notes due 2022 2023 Floating Rate Notes due 2015 Principal amount: 2023 Notes - $1,000,000,000 1,500,000,000 Floating Rate Notes - $650,000,000 Purchase price: 97.9982023 Notes - 99.280% of the principal amount of 2023 Notes plus accrued interest from July 30August 1, 2012 Offering price: 98.3982013 Floating Rate Notes – 99.900% of the principal amount of Floating Rate Notes plus accrued interest from July 30August 1, 2012 2013 Offering price: 2023 Notes - 99.680% of the principal amount of 2023 Notes plus accrued interest from August 1, 2013 Floating Rate Notes – 100.00% of the principal amount of Floating Rate Notes plus accrued interest from August 1, 2013 Interest: 2023 Notes Payable on February 1 and August 11 of each year, commencing on February 1, 2014 Floating Rate Notes - Payable on January 29, April 29, July 29 and October 29 of each year, commencing October 29, 2013. Sinking fund provisions: None. Redemption provisions: The 2023 Notes are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectus. The Floating Rate Notes may not be redeemed prior to maturity. Closing Date, Time and Location: July 30August 1, 20122013, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇▇ LLP, Worldwide Plaza, 8▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’sarm's-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ R▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Name: R▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Title: Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS SECURITIES CORP. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE BANK SECURITIES INC. UBS SECURITIES LLC. By: DEUTSCHE BANK SECURITIES INC. /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: Director By: /s/J/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: J▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Director By: /s/ E▇▇▇▇▇ ▇▇▇▇ Name: E▇▇▇▇▇ ▇▇▇▇ Title: Director Underwriting Agreement dated July 25February 3, 2012 Registration No. 333-168333 Representatives: BNP Paribas Securities Corp. Citigroup Global Markets ▇▇▇▇▇▇▇ ▇▇▇▇▇ Canada Inc. Deutsche Bank RBC Dominion Securities Inc. UBS Securities LLC Title, Purchase Price and Description of Securities: Title: 1.8752.20% Notes due 2022 2017 Principal amount: $1,000,000,000 C$500,000,000 Purchase price: 97.99899.668% of the principal amount of Notes plus accrued interest from July 30February 10, 2012 Offering price: 98.39899.943% of the principal amount of Notes plus accrued interest from July 30February 10, 2012 Interest: Payable on February 1 10 and August 110, commencing on February 1August 10, 2013. 2012 Sinking fund provisions: None. Redemption provisions: The Notes are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectus. Closing Date, Time and Location: July 30February 10, 2012, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇▇ LLP, Worldwide Plaza, 8▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:.
1. Section 4(B)(a) - (hSections 4(B)(a)-(h) are deleted.. The Underwriters agree to reimburse the Company for certain of its expenses incurred in connection with the offering in the amount of C$125,000.00
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom...
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is Underwriters are acting solely as a principal and not in the agent or fiduciary capacity of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, neither the Representatives nor any other Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. 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 process leading thereto benefit of the Underwriters and shall not be on behalf of the Company. This Agreement supersedes all prior agreements and understandings (irrespective of whether such Underwriter has advised written or is currently advising oral) between the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty with respect to the Company, in connection with such transaction or the process leading theretosubject matter hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among between the Company and the several Underwriters. INTERNATIONAL BUSINESS MACHINES CORPORATION Very truly yours, HECLA MINING COMPANY By: /s/ R▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Name: R▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Title: Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on as of the date specified in Schedule I heretofirst above written. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS SECURITIES CORP. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE BANK SECURITIES INC. UBS SECURITIES LLC. By: DEUTSCHE BANK SECURITIES INC. By: /s/J▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: JLYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED By: ▇.▇. ▇▇▇▇▇▇ SECURITIES INC. By: For themselves and the other several Underwriters named in Schedule I. ▇▇▇▇▇▇▇ Title: Managing Director By: /s/ E▇▇▇▇▇ ▇▇▇▇ Name: E▇▇▇▇▇ ▇▇▇▇ Title: Director Underwriting Agreement dated July 25Lynch, 2012 Registration No. 333-168333 Representatives: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. UBS Securities LLC TitlePierce, Purchase Price and Description of Securities: Title: 1.875% Notes due 2022 Principal amount: $1,000,000,000 Purchase price: 97.998% of the principal amount of Notes plus accrued interest from July 30, 2012 Offering price: 98.398% of the principal amount of Notes plus accrued interest from July 30, 2012 Interest: Payable on February 1 and August 1, commencing on February 1, 2013. Sinking fund provisions: None. Redemption provisions: The Notes are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectus. Closing Date, Time and Location: July 30, 2012, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇ LLP, Worldwide Plaza, 8▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 875,000 ▇.▇. ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iiiSecurities Inc. 612,500 CIBC World Markets Corp. 52,500 BMO Capital Markets Corp. 52,500 Macquarie Securities (USA) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(aInc. 52,500 RBC Capital Markets Corporation 52,500 Scotia Capital (USA) - (h) are deleted.
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.Inc. 52,500 Total 1,750,000
Appears in 1 contract
Arm’s Length Transaction. The Each of the Issuer and the Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Issuer and the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Issuer or the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Issuer or the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Issuer or the Company on other matters) or any other obligation to the Issuer or the Company except the obligations expressly set forth in this Agreement and (iv) the Company it has consulted its own legal and financial advisors to the extent it deemed appropriate. The Each of the Issuer and the Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Issuer or the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ RM▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Name: RM▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Title: Vice President By: /s/ M▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: M▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: Member of the Board of Managers and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. M▇▇▇▇▇ S▇▇▇▇▇▇ & CO. INCORPORATED By: /s/ Y▇▇▇▇ ▇▇▇▇ Name: Y▇▇▇▇ ▇▇▇▇ Title: Vice President For themselves and the other several Underwriters, if any, named in Schedule Scheduled II to the foregoing Agreement. BNP PARIBAS SECURITIES CORPUnderwriting Agreement dated August 8, 2007 Registration No. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE BANK SECURITIES INC. UBS SECURITIES LLC. By: DEUTSCHE BANK SECURITIES INC. By: /s/J3▇▇▇▇ -▇▇▇▇▇▇-▇▇ NameRepresentatives: JDeutsche Bank Securities Inc., J.▇▇▇▇ ▇▇.▇▇▇▇▇▇ Title: Managing Director By: /s/ ESecurities Inc., L▇▇▇▇▇ Brothers Inc., M▇▇▇▇ Name: E▇▇▇▇▇ Lynch, P▇▇▇▇▇, F▇▇▇▇▇ Title: Director Underwriting Agreement dated July 25, 2012 Registration No. 333-168333 Representatives: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. UBS Securities LLC & S▇▇▇▇ Incorporated and M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. Incorporated Title, Purchase Price and Description of Securities: Title: 1.875% Floating Rate Notes due 2022 2009 Principal amount: $1,000,000,000 2,600,000,000 Purchase price: 97.99899.92% of the principal amount of Notes plus accrued interest from July 30August 13, 2012 2007 Offering price: 98.398100% of the principal amount of Notes plus accrued interest from July 30August 13, 2012 2007 Interest: Payable on February 1 13, May 13, August 13 and August 1November 13 of each year, commencing on February 1November 13, 2013. 2007 Sinking fund provisions: None. Redemption provisions: The Notes are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectus. Closing Date, Time and Location: July 30, 2012, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇ LLP, Worldwide Plaza, 8▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. Very truly yours, INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ R▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Name: R▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Title: Vice President and Treasurer IBM Debt Offering The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS SECURITIES CORP. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE BANK AG, LONDON BRANCH G▇▇▇▇▇▇, S▇▇▇▇ & CO. SOCIÉTÉ GÉNÉRALE UNICREDIT BANK AG BANCA IMI S.P.A. BANCO BILBAO VIZCAYA ARGENTARIA, S.A. LLOYDS BANK PLC SANTANDER INVESTMENT SECURITIES INC. UBS SECURITIES LLC. By: DEUTSCHE BANK SECURITIES INC. AG, LONDON BRANCH By: /s/J/s/ A▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: A▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Legal Counsel By: /s/ R▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: JR▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Legal Counsel By: G▇▇▇▇▇▇, S▇▇▇▇ & CO. By: /s/ M▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: M▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Vice President By: SOCIÉTÉ GÉNÉRALE By: /s/ F▇▇▇▇ ▇▇▇▇▇▇ Name: F▇▇▇▇ ▇▇▇▇▇▇ Title: Global Co-Head of DCM Corporate Origination By: UNICREDIT BANK AG By: /s/ M▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: M▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Director By: /s/ EM▇▇▇▇▇▇▇ ▇▇▇▇ Name: EM▇▇▇▇▇▇▇ ▇▇▇▇ Title: Associate Director By: BANCA IMI S.P.A. By: /s/ P▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: P▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: Head of Debt Capital Markets By: BANCO BILBAO VIZCAYA ARGENTARIA, S.A. By: /s/ G▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: G▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Executive Director By: /s/ R▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: R▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Managing Director By: LLOYDS BANK PLC By: /s/ R▇▇▇▇▇ ▇▇▇▇▇▇ Name: R▇▇▇▇▇ ▇▇▇▇▇▇ Title: Director DCM By: SANTANDER INVESTMENT SECURITIES INC. By: /s/ L▇▇▇ ▇▇▇▇▇▇▇ Name: L▇▇▇ ▇▇▇▇▇▇▇ Title: Managing Director By: /s/ J▇▇▇▇▇ ▇▇▇▇▇ Name: J▇▇▇▇▇ ▇▇▇▇▇ Title: Senior Vice President Underwriting Agreement dated July 25October 31, 2012 2013 Registration No. 333-168333 190160 Representatives: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. UBS Securities LLC AG, London Branch Winchester House 1 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ Fax Number: +▇▇ (▇▇▇) ▇▇▇ ▇▇▇▇ Attn: Syndicate Desk G▇▇▇▇▇▇, S▇▇▇▇ & Co. 2▇▇ ▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Attn: Registration Department Société Générale 2▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attn: Syndicate Desk GLFI/SYN/CAP/BND UniCredit Bank AG A▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ Title, Purchase Price and Description of Securities: Title: 1.875% Notes due 2022 2020 2.875% Notes due 2025 Principal amount: $2020 Notes: €1,500,000,000 2025 Notes: €1,000,000,000 Purchase price: 97.9982020 Notes: 99.291% of the principal amount of the Notes plus accrued interest from July 30November 7, 2012 Offering price2013 2025 Notes: 98.39899.505% of the principal amount of the Notes plus accrued interest from July 30November 7, 2012 2013 Offering price: 2020 Notes: 99.591% of the principal amount of the Notes plus accrued interest from November 7, 2013 2025 Notes: 99.930% of the principal amount of the Notes plus accrued interest from November 7, 2013 Interest: 2020 Notes: Payable on February 1 and August 1November 6 of each year, commencing on February 1November 6, 2013. 2014 2025 Notes: Payable on November 7 of each year, commencing on November 7, 2014 Sinking fund provisions: None. Redemption provisions: The Notes of each series are redeemable in whole or in part, at the option of the Company, in whole upon the occurrence of certain tax events, or in whole or in part at a make whole amount, each as described set forth in the Final ProspectusProspectus Supplement dated the date of this Agreement. Closing Date, Time and Location: July 30November 7, 20122013, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇ LLP, Worldwide Plaza, 8▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
3. The last sentence of Section 7(b) shall be deleted and replaced by the following text: The Company acknowledges that the statements set forth in the last paragraph of the cover page of the Preliminary Final Prospectus and the Final Prospectus, the sentence “The underwriters have informed IBM that they intend to make a market in the Notes but are under no obligation to do so and such market making may be terminated at any time without notice.” and the statements contained in the fourth and eighth and ninth paragraphs and the first, third and fourth sentences of the tenth paragraph under the caption “Underwriting” in the Preliminary Final Prospectus and the Final Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in the Basic Prospectus, any Preliminary Final Prospectus, the Disclosure Package, any Issuer Free Writing Prospectus or the Final Prospectus, and you, as the Representatives, confirm that such statements are correct.
4. The following shall be an additional condition added to Section 5: The Company shall have furnished to the Representatives the opinion of C▇▇▇▇▇▇, Swaine & M▇▇▇▇ LLP, counsel to the Company, dated the Closing Date to the effect that the statements under the caption “United States Taxation” in the Disclosure Package and the Final Prospectus constitute a fair presentation of the material U.S. federal income tax consequences to holders of Securities.
5. The following shall be a new Section 15:
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’sarm's-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. INTERNATIONAL BUSINESS MACHINES CORPORATION By: CORPORATION, By /s/ RM▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Name: RM▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Title: Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. BARCLAYS CAPITAL INC. L▇▇▇▇▇ BROTHERS INC. M▇▇▇▇▇▇ LYNCH, P▇▇▇▇▇, F▇▇▇▇▇ & S▇▇▇▇ INCORPORATED M▇▇▇▇▇ S▇▇▇▇▇▇ & CO. INCORPORATED By: BARCLAYS CAPITAL INC. By: /s/ P▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: P▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Director For themselves and the other several Underwriters, if any, named in Schedule Scheduled II to the foregoing Agreement. BNP PARIBAS SECURITIES CORPUnderwriting Agreement dated July 23, 2008 Registration No. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE BANK SECURITIES INC. UBS SECURITIES LLC. By333-145104 Representatives: DEUTSCHE BANK SECURITIES INC. By: /s/JBarclays Capital Inc. L▇▇▇▇▇ Brothers Inc. M▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: J▇▇▇▇ , ▇▇▇▇▇▇▇▇ Title: Managing Director By: /s/ E, F▇▇▇▇▇ & S▇▇▇▇ Name: E▇. Incorporated M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. Incorporated Title: Director Underwriting Agreement dated July 25, 2012 Registration No. 333-168333 Representatives: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. UBS Securities LLC Title, Purchase Price and Description of Securities: Title: 1.875% Floating Rate Notes due 2022 2011 Principal amount: $1,000,000,000 Purchase price: 97.99899.850% of the principal amount of Notes plus accrued interest from July 3028, 2012 2008 Offering price: 98.398100.000% of the principal amount of Notes plus accrued interest from July 3028, 2012 2008 Interest: Payable on February 1 January 28, April 28, July 28 and August 1October 28 of each year, commencing on February 1October 28, 2013. 2008 Sinking fund provisions: None. Redemption provisions: The Notes are not redeemable in whole or in part, at the option of the Company, as described in the Final Prospectusprior to maturity. Closing Date, Time and Location: July 3028, 20122008, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇ LLP, Worldwide Plaza, 8▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or The line items from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State 's consolidated income statement and statement of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined financial position set forth in the Prospectus Directive;
(b) to fewer than 100 orCompany's press release dated July 17, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined 2008 included in the Prospectus Directive)Company's Form 8-K dated July 17, as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom2008.
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’sarm's-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ R▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Name: R▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Title: Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS SECURITIES CORP. CITIGROUP GLOBAL MARKETS BARCLAYS CAPITAL INC. DEUTSCHE BANK HSBC SECURITIES (USA) INC. UBS MIZUHO SECURITIES LLCUSA INC. RBC CAPITAL MARKETS, LLC By: DEUTSCHE BANK HSBC SECURITIES (USA) INC. By: /s/J/s/ D▇▇▇▇ ▇▇▇. ▇▇▇▇▇ Name: JD▇▇▇▇ ▇▇▇. ▇▇▇▇▇ Title: Managing Director By: /s/ E▇▇▇▇▇ ▇▇▇▇ Name: E▇▇▇▇▇ ▇▇▇▇ Title: Director Senior Vice President Underwriting Agreement dated July 25February 5, 2012 2013 Registration No. 333-168333 Representatives: BNP Paribas Barclays Capital Inc. HSBC Securities Corp. Citigroup Global Markets (USA) Inc. Deutsche Bank Mizuho Securities USA Inc. UBS Securities RBC Capital Markets, LLC Title, Purchase Price and Description of Securities: Title: 1.8751.250% Notes due 2022 2018 Floating Rate Notes due 2015 Principal amount: 2018 Notes - $1,000,000,000 Floating Rate Notes - $1,000,000,000 Purchase price: 97.9982018 Notes - 99.292% of the principal amount of 2018 Notes plus accrued interest from July 30February 8, 2012 Offering price: 98.3982013 Floating Rate Notes - 99.900% of the principal amount of Floating Rate Notes plus accrued interest from July 30February 8, 2012 2013 Offering price: 2018 Notes - 99.542% of the principal amount of 2018 Notes plus accrued interest from February 8, 2013 Floating Rate Notes - 100.000% of the principal amount of Floating Rate Notes plus accrued interest from February 8, 2013 Interest: 2018 Notes Payable on February 1 8 and August 18 of each year, commencing on August 8, 2013 Floating Rate Notes - Payable on February 14, May 4, August 4 and November 4 of each year, commencing May 4, 2013. Sinking fund provisions: None. Redemption provisions: The Notes are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectus. Closing Date, Time and Location: July 30, 2012, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇ LLP, Worldwide Plaza, 8▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’sarm's-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. Very truly yours, INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ R▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇_____________ Name: R▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Title: Vice President and Assistant Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. BARCLAYS CAPITAL INC. ▇▇▇▇▇▇ BROTHERS INC. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED By: BARCLAYS CAPITAL INC. By: /s/ Pamela Kendall____________ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Director For themselves and the other several Underwriters, if any, named in Schedule Scheduled II to the foregoing Agreement. BNP PARIBAS SECURITIES CORPUnderwriting Agreement dated March 19, 2007 Registration No. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE BANK SECURITIES INC. UBS SECURITIES LLC. By333-37034 Representatives: DEUTSCHE BANK SECURITIES INC. By: /s/JBarclays Capital Inc. ▇▇▇▇▇▇ Brothers Inc. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: J▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Director By: /s/ E▇▇▇▇▇ ▇▇▇▇ Name: E▇▇▇▇▇ ▇▇▇▇ Title: Director Underwriting Agreement dated July 25, 2012 Registration No. 333-168333 Representatives: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. UBS Securities LLC & Co. Incorporated Title, Purchase Price and Description of Securities: Title: 1.8754.95% Notes due 2022 2011 Principal amount: $1,000,000,000 500,000,000 Purchase price: 97.99899.689% of the principal amount of Notes plus accrued interest from July 30March 22, 2012 2007 Offering price: 98.39899.889% of the principal amount of Notes plus accrued interest from July 30fromMarch 22, 2012 2007 Interest: Payable on February 1 March 22 and August 1September 22 of each year, commencing on February 1September 22, 2013. 2007 Sinking fund provisions: None. Redemption provisions: The Notes are not redeemable in whole or in part, at by the option of the Company, as described in the Final ProspectusCompany prior to maturity. Closing Date, Time and Location: July 30March 22, 20122007, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇▇ LLP, Worldwide Plaza, 8▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deleted.
2. Each of As set forth in a schedule delivered on the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best date hereof on behalf of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. Very truly yours, INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ R▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Name: R▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Title: Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BARCLAYS CAPITAL INC. BNP PARIBAS SECURITIES CORP. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE BANK SECURITIES INC. UBS SECURITIES LLC▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO. By: DEUTSCHE BANK SECURITIES INC. By: /s/J/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: J▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Director By: /s/ E▇▇▇▇▇ ▇▇▇▇ Name: E▇▇▇▇▇ ▇▇▇▇ Title: Director Underwriting Agreement dated July 25August 2, 2012 2010 Registration No. 333-168333 Representatives: Barclays Capital Inc. BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. UBS Securities LLC ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. Title, Purchase Price and Description of Securities: Title: 1.8751.000% Notes due 2022 2013 Principal amount: $1,000,000,000 1,500,000,000 Purchase price: 97.99899.441% of the principal amount of Notes plus accrued interest from July 30August 5, 2012 2010 Offering price: 98.39899.591% of the principal amount of Notes plus accrued interest from July 30August 5, 2012 2010 Interest: Payable on February 1 5 and August 15 of each year, commencing on February 15, 20132011. Sinking fund provisions: None. Redemption provisions: The Notes are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectus. Closing Date, Time and Location: July 30August 5, 20122010, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇▇ LLP, Worldwide Plaza, 8▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees has agreed that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: European Economic Area Each of the Underwriters has agreed that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company except as set forth in this underwriting agreement. In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents has represented and agrees agreed that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities notes to the public in that Relevant Member State other thanprior to the publication of a prospectus in relation to the notes which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of notes to the public in that Relevant Member State at any time:
(a) to any legal entity entities which is a qualified investor as defined are authorized or regulated to operate in the Prospectus Directivefinancial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(b) to fewer any legal entity which has two or more of
1. an average of at least 250 employees during the last financial year;
2. a total balance sheet of more than 100 or, if the Relevant Member State has implemented the relevant provision €43,000,000 and
3. an annual net turnover of the 2010 PD Amending Directive, 150, natural or legal persons (other more than qualified investors as defined in the Prospectus Directive)€50,000,000, as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offershown in its last annual or consolidated accounts; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall which do not require the Company or any Underwriter to publish publication by the issuer of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities Notes to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, State and the expression “Prospectus Directive” Directive means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the each Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United KingdomState.
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’sarm's-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. INTERNATIONAL BUSINESS MACHINES CORPORATION Very truly yours, By: /s/ RM▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Name: RM▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Title: Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS SECURITIES CORP. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE BANK SECURITIES INC. By: UBS SECURITIES LLC. LLC By: DEUTSCHE BANK SECURITIES INC. By: /s//s/ J▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: J▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Director By: /s/ EM▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: EM▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Associate Director Underwriting Agreement dated July 25December 13, 2012 2010 Registration No. 333-168333 Representatives: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche Bank Securities Barclays Capital Inc. UBS Securities LLC Title, Purchase Price and Description of Securities: Title: 1.875% Floating Rate Notes due 2022 2012 Principal amount: $1,000,000,000 Purchase price: 97.99899.90% of the principal amount of Notes plus accrued interest from July 30December 15, 2012 2010 Offering price: 98.398100.00% of the principal amount of Notes plus accrued interest from July 30December 15, 2012 2010 Interest: Payable on February 1 March 15, June 15, September 15 and August 1December 15, commencing on February 1March 15, 20132011. Sinking fund provisions: None. Redemption provisions: The Notes are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectusmay not be redeemed prior to maturity. Closing Date, Time and Location: July 30December 15, 20122010, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇ LLP, Worldwide Plaza, 8▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. Very truly yours, INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ R▇▇▇▇▇ M▇▇▇ ▇▇▇▇▇▇▇ Name: R▇▇M▇▇▇ ▇▇▇ ▇▇▇▇▇ Title: Vice President and Assistant Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS SECURITIES CORPBARCLAYS CAPITAL INC. BOFA SECURITIES, INC. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE BANK G▇▇▇▇▇▇ S▇▇▇▇ & CO. LLC J.▇. ▇▇▇▇▇▇ SECURITIES LLC MIZUHO SECURITIES USA LLC MUFG SECURITIES AMERICAS INC. UBS TD SECURITIES LLC. (USA) LLC By: DEUTSCHE BANK SECURITIES BARCLAYS CAPITAL INC By: /s/ M▇▇▇ ▇▇▇▇▇▇ Name: M▇▇▇ ▇▇▇▇▇▇ Title: Managing Director By: BOFA SECURITIES, INC. By: /s/J/s/ L▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: JL▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Director By: CITIGROUP GLOBAL MARKETS INC. By: /s/ EB▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: B▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Title: Managing Director By: G▇▇▇▇▇▇ S▇▇▇▇ & CO. LLC By: /s/ M▇▇▇▇▇▇ ▇▇▇▇ Name: E▇▇▇▇▇▇ Name: M▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: Managing Director By: J.▇. ▇▇▇▇▇▇ SECURITIES LLC By: /s/ Som B▇▇▇▇▇▇▇▇▇▇▇▇ Name: Som B▇▇▇▇▇▇▇▇▇▇▇▇ Title: Executive Director By: MIZUHO SECURITIES USA LLC By: /s/ J▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: J▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: Managing Director By: MUFG SECURITIES AMERICAS INC. By: /s/ R▇▇▇▇▇▇ ▇▇▇▇▇ Name: R▇▇▇▇▇▇ ▇▇▇▇▇ Title: Managing Director By: TD SECURITIES (USA) LLC By: /s/ L▇▇▇ ▇▇▇▇▇▇▇▇ Name: L▇▇▇ ▇▇▇▇▇▇▇▇ Title: Director Underwriting Agreement dated July 25January 30, 2012 2023 Registration No. 333-168333 262911 Representatives: BNP Paribas Securities Corp. Citigroup Global Markets Barclays Capital Inc. Deutsche Bank Securities Inc. UBS Securities LLC Title, Purchase Price and Description of Securities: Title: 1.875% Notes due 2022 Principal amount: $1,000,000,000 Purchase price: 97.998% of the principal amount of Notes plus accrued interest from July 30, 2012 Offering price: 98.398% of the principal amount of Notes plus accrued interest from July 30, 2012 Interest: Payable on February 1 and August 1, commencing on February 1, 2013. Sinking fund provisions: None. Redemption provisions: The Notes are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectus. Closing Date, Time and Location: July 30, 2012, 10:00 A.M., at the offices of Cravath, Swaine & M7▇▇ ▇▇▇▇▇▇▇ LLP▇▇▇▇▇▇ New York, Worldwide PlazaNew York 10019 Attn: Syndicate Registration Fax: 6▇▇-▇▇▇-▇▇▇▇ BofA Securities, 8Inc. 1▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇-114-07-01 New York, New York 10036 Attention: High Grade Debt Capital Markets Transaction Management/Legal Fax: 2▇▇-▇▇▇-▇▇▇▇ Citigroup Global Markets Inc. 3▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements▇▇ New York, New York 10013 Fax: None. Items specified pursuant to Section 5(e)(iii(▇▇▇) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deleted.
▇▇▇-▇▇▇▇ Attention: General Counsel G▇▇▇▇▇▇ S▇▇▇▇ & Co. LLC 2. Each of the Underwriters agrees that it will not offer▇▇ ▇▇▇▇ ▇▇▇▇▇▇ New York, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictionsNew York 10282-2198 Attention: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.Registration Department
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. Very truly yours, INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ R▇Name: S▇▇▇▇ ▇▇▇ ▇▇▇▇ Name: R. ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Title: Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS SECURITIES CORPBARCLAYS CAPITAL INC. BOFA SECURITIES, INC. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE BANK HSBC SECURITIES (USA) INC. UBS MIZUHO SECURITIES LLC. By: DEUTSCHE BANK USA LLC SMBC NIKKO SECURITIES AMERICA, INC. By: /s/JBARCLAYS CAPITAL INC. By: /s/ M▇▇▇ ▇▇▇▇▇▇ Name: M▇▇▇ ▇▇▇▇▇▇ Title: Managing Director By: BOFA SECURITIES, INC. By: /s/ L▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: JL▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Director By: CITIGROUP GLOBAL MARKETS INC. By: /s/ EB▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ Name: EB▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇ Title: Managing Director Underwriting Agreement dated July 25, 2012 Registration NoBy: HSBC SECURITIES (USA) INC. 333-168333 RepresentativesBy: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. UBS Securities LLC Title, Purchase Price and Description of Securities: Title: 1.875% Notes due 2022 Principal amount: $1,000,000,000 Purchase price: 97.998% of the principal amount of Notes plus accrued interest from July 30, 2012 Offering price: 98.398% of the principal amount of Notes plus accrued interest from July 30, 2012 Interest: Payable on February 1 and August 1, commencing on February 1, 2013. Sinking fund provisions: None. Redemption provisions: The Notes are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectus. Closing Date, Time and Location: July 30, 2012, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇ LLP, Worldwide Plaza, 8▇▇ /s/ P▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇ Name: P▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Managing Director By: MIZUHO SECURITIES USA LLC By: /s/ J▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: J▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: Managing Director By: SMBC NIKKO SECURITIES AMERICA, INC. By: /s/ O▇▇▇ ▇. ▇▇▇▇▇ Name: O▇▇▇ ▇. ▇▇▇▇▇ Title: Managing Director Underwriting Agreement dated February 2, 2022 Registration No. 333-230099 Representatives: Barclays Capital Inc. 7▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements▇▇ New York, NY 10019 Attn: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Syndicate Registration Fax: 6▇▇-▇▇▇-▇▇▇ BofA Securities, directly or indirectlyInc. 1▇▇▇ ▇▇▇▇▇▇▇▇, or distribute the prospectus supplement or prospectus or any other offering material relating to the ▇▇▇-540-26-02 New York, NY 10036 Attention: High Grade Debt Capital Markets Transaction Management/Legal Fax: 2▇▇-▇▇▇-▇▇▇▇ Citigroup Global Markets Inc. 3▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ New York, NY 10013 Attention: General Counsel Fax: 6▇▇-▇▇▇-▇▇▇▇ HSBC Securities (USA) Inc. 4▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ New York, NY 10018 Attention: Transaction Management Group Phone: 1-▇▇▇-▇▇▇-▇▇▇▇ Fax: 1-▇▇▇-▇▇▇-▇▇▇▇ Email: t▇▇.▇▇▇▇▇▇▇▇@▇▇.▇▇▇▇.▇▇▇ Mizuho Securities USA LLC 1▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ New York, NY 10020 SMBC Nikko Securities America, Inc. 2▇▇ ▇▇▇▇ ▇▇▇▇▇▇ New York, NY 10172 Attention: Debt Capital Markets Toll Free: 1-▇▇▇-▇▇▇-▇▇▇▇ E-mail: p▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇-▇▇.▇▇▇ Title, Purchase Price and Description of Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State Title: 2.200% Notes due 2027 (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA2027 Notes”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ R▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇▇ Name: R▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇▇ Title: Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BARCLAYS BANK PLC BNP PARIBAS SECURITIES CORP. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE HSBC BANK SECURITIES INC. UBS SECURITIES LLC. PLC RBC EUROPE LIMITED ING BANK N.V., BELGIAN BRANCH SOCIÉTÉ GÉNÉRALE ▇▇▇▇▇ FARGO SECURITIES, LLC By: DEUTSCHE BANK SECURITIES INC/s/ ▇. By: /s/J▇▇▇▇ ▇▇▇▇▇▇▇▇▇ III Name: J▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ III Title: Managing Director By: /s/ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Title: Duly Authorised Signatory By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Authorised Signatory By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Title: Managing Director By: /s/ E▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇ Title: Duly Authorised Signatory By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: E▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Managing Director Head High Grade Syndicate By: /s/ ▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Director By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Director Underwriting Agreement dated July 25February 4, 2012 2020 Registration No. 333-168333 230099 Representatives: Barclays Bank PLC 5 The North Colonnade Canary Wharf London E14 4BB United Kingdom Tel: +▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇ Attention: Debt Syndicate BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ London NW1 6AA United Kingdom Telephone: +▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇ Fax: +▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇ Attention: Fixed Income Syndicate HSBC Bank Securities Inc. UBS Securities LLC plc ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ London E14 5HQ, United Kingdom Telephone: +▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇ Fax: +▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇ Transaction Management Group: ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ RBC Europe Limited Riverbank House ▇ ▇▇▇▇ ▇▇▇▇ London EC4R 3BF Attention: New Issues Syndicate Desk Title, Purchase Price and Description of Securities: Title: 1.8750.300% Notes due 2022 2028 (the “2028 Notes”) 0.650% Notes due 2032 (the “2032 Notes”) 1.200% Notes due 2040 (the “2040 Notes”) Principal amount: $1,000,000,000 2028 Notes: €1,300,000,000 2032 Notes: €1,600,000,000 2040 Notes: €850,000,000 Purchase price: 97.9982028 Notes: 99.580% of the principal amount of Notes the Securities plus accrued interest from July 30and including February 11, 2012 Offering price2020 2032 Notes: 98.39899.265% of the principal amount of Notes the Securities plus accrued interest from July 30and including February 11, 2012 2020 2040 Notes: 99.100% of the principal amount of the Securities plus accrued interest from and including February 11, 2020 Offering price: 2028 Notes: 99.905% of the principal amount of the Securities plus accrued interest from and including February 11, 2020 2032 Notes: 99.690% of the principal amount of the Securities plus accrued interest from and including February 11, 2020 2040 Notes: 99.700% of the principal amount of the Securities plus accrued interest from and including February 11, 2020 Interest: 2028 Notes Payable on February 1 and August 111 of each year, commencing on February 111, 2013. 2021 2032 Notes Payable on February 11 of each year, commencing on February 11, 2021 2040 Notes Payable on February 11 of each year, commencing on February 11, 2021 Sinking fund provisions: None. Redemption provisions: The Notes Securities are redeemable in whole or in part, at the option of the Company, in whole upon the occurrence of certain tax events, or in whole or in part at a make whole amount, each as described set forth in the Final ProspectusProspectus Supplement dated the date of this Agreement. Closing Date, Time and Location: July 30February 11, 20122020, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇▇ LLP, Worldwide Plaza, 8▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not offered, sold or otherwise made available and will not offer, sell or otherwise make an offer of the available any Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified retail investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural EEA or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus DirectiveUK. For the purposes of this provision, :
(a) the expression an “offer retail investor” means a person who is one (or more) of Securities to the publicfollowing:
(i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or
(ii) a customer within the meaning of Directive 2016/97/EU, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of ▇▇▇▇▇ ▇▇; or
(iii) not a qualified investor as defined in Regulation (EU) No. 2017/1129; and
(b) the expression “offer” in relation to any Securities in any Relevant Member State means includes the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities. Consequently no key information document required by Regulation (EU) No 1286/2014 (as amended, as the same “PRIIPs Regulation”) for offering or selling the Securities or otherwise making them available to retail investors in the EEA or the UK has been prepared and therefore offering or selling the Securities or otherwise making them available to any retail investor in the EEA or in the UK may be varied in that Member State by any measure implementing unlawful under the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United KingdomPRIIPs Regulation.
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’sarm's-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. Very truly yours, INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ R▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Name: R▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Title: Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS SECURITIES CORP. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE HSBC BANK SECURITIES INC. UBS SECURITIES LLC. By: DEUTSCHE BANK SECURITIES INC. By: /s/JPLC ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INTERNATIONAL PLC UBS LIMITED By: BNP PARIBAS By: /s/ ▇. ▇▇▇▇▇-▇▇▇▇▇▇ Name: J▇. ▇▇▇▇▇-▇▇▇▇▇▇ Title: Authorized Attorney Underwriting Agreement dated October 30, 2008 Registration No. 333-145104 Representatives: BNP Paribas ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Attn: Fixed Income Syndicate Fax: + ▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇ HSBC Bank plc ▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Tel: + ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ Fax: + ▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ Email: ▇▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ Attn: Transaction Management Group ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated plc ▇▇ Title▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Tel: Managing Director By▇▇▇ ▇▇▇▇ ▇▇▇▇ Fax: /s/ E▇▇▇ ▇▇▇▇ ▇▇▇▇ Email: ▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Attn: Head of Transaction Management Group, Global Capital Markets UBS Limited ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Name▇▇▇ Tel: E+ ▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇ TitleFax: Director Underwriting Agreement dated July 25, 2012 Registration No. 333-168333 Representatives+ ▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇ Attn: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. UBS Securities LLC MTNs and Private Placements Title, Purchase Price and Description of Securities: Title: 1.8756.625% Notes due 2022 2014 Principal amount: $1,000,000,000 €750,000,000 Purchase price: 97.99899.226% of the principal amount of the Notes plus accrued interest from July 30November 6, 2012 2008 Offering price: 98.39899.476% of the principal amount of the Notes plus accrued interest from July 30November 6, 2012 2008 Interest: Payable on February 1 and August 1January 30 of each year, commencing on February 1January 30, 20132009. Sinking fund provisions: None. Redemption provisions: The Notes are redeemable in whole or in part, at the option of the Company, in whole upon the occurrence of certain tax events, or in whole or in part at a make whole amount, each as described set forth in the Final ProspectusProspectus Supplement dated the date of this Agreement. Closing Date, Time and Location: July 30November 6, 20122008, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇▇ LLP, Worldwide Plaza, 8▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:As set forth in a schedule delivered on the date hereof on behalf of the Underwriters.
1. Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees has agreed that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: Each of the Underwriters has agreed that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company except as set forth in this underwriting agreement. In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents has represented and agrees agreed that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities notes to the public in that Relevant Member State other thanprior to the publication of a prospectus in relation to the notes which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of notes to the public in that Relevant Member State at any time:
(a) to any legal entity entities which is a qualified investor as defined are authorized or regulated to operate in the Prospectus Directivefinancial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(b) to fewer any legal entity which has two or more of
1. an average of at least 250 employees during the last financial year;
2. a total balance sheet of more than 100 or, if the Relevant Member State has implemented the relevant provision €43,000,000; and
3. an annual net turnover of the 2010 PD Amending Directive, 150, natural or legal persons (other more than qualified investors as defined in the Prospectus Directive)€50,000,000, as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offershown in its last annual or consolidated accounts; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall which do not require the Company or any Underwriter to publish publication by the issuer of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities Notes to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, State and the expression “Prospectus Directive” Directive means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the each Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United KingdomState.
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. INTERNATIONAL BUSINESS MACHINES CORPORATION Very truly yours, IBM CREDIT LLC By: /s/ R▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Name: R▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Title: Vice President and Treasurer President, Finance The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS HSBC SECURITIES CORP. CITIGROUP GLOBAL MARKETS (USA) INC. DEUTSCHE BANK RBC CAPITAL MARKETS, LLC SMBC NIKKO SECURITIES AMERICA, INC. UBS SECURITIES LLC. ▇▇▇▇▇ FARGO SECURITIES, LLC By: DEUTSCHE BANK HSBC SECURITIES (USA) INC. By: /s/J/s/ ▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇ Name: J▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Director By: RBC CAPITAL MARKETS, LLC By: /s/ E▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Title: Authorized Signatory By: SMBC NIKKO SECURITIES AMERICA, INC. By: /s/ ▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇ ▇▇▇▇▇▇ Title: President By: ▇▇▇▇▇ FARGO SECURITIES, LLC By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: E▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Director Underwriting Agreement dated July 25November 27, 2012 2018 Registration No. 333-168333 219724 Representatives: BNP Paribas HSBC Securities Corp. Citigroup Global (USA) Inc. ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ New York, NY 10018 Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Attention: Transaction Management Americas RBC Capital Markets, LLC ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ New York, NY 10281 Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Attention: Transaction Management/▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ SMBC Nikko Securities America, Inc. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ New York, NY 10172 Attention: Debt Capital Markets Inc. Deutsche Bank Securities Inc. UBS Securities ▇▇▇▇▇ Fargo Securities, LLC ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, 5th Floor Charlotte, NC 28202 Attention: Transaction Management Email: ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇ Title, Purchase Price and Description of Securities: Title: 1.875Floating Rate Notes due 2020 3.450% Notes due 2022 2020 3.600% Notes due 2021 Principal amount: 2020 Floating Rate Notes: $1,000,000,000 750,000,000 2020 Notes: $750,000,000 2021 Notes: $500,000,000 Purchase price: 97.9982020 Floating Rate Notes – 99.900% of the principal amount of the 2020 Floating Rate Notes plus accrued interest from July and including November 30, 2012 Offering price: 98.3982018 2020 Notes – 99.821% of the principal amount of the 2020 Notes plus accrued interest from July and including November 30, 2012 2018 2021 Notes – 99.819% of the principal amount of the 2021 Notes plus accrued interest from and including November 30, 2018 Offering price: 2020 Floating Rate Notes – 100% of the principal amount of the 2020 Floating Rate Notes plus accrued interest from and including November 30, 2018 2020 Notes – 99.921% of the principal amount of the 2020 Notes plus accrued interest from and including November 30, 2018 2021 Notes – 99.969% of the principal amount of the 2021 Notes plus accrued interest from and including November 30, 2018 Interest: 2020 Floating Rate Notes – Payable on February 1 November 30, the last day in the month of February, May 30 and August 130 of each year, commencing on February 128, 2013. 2019 2020 Notes – Payable on November 30 and May 30 of each year, commencing on May 30, 2019 2021 Notes – Payable on November 30 and May 30 of each year, commencing on May 30, 2019 Sinking fund provisions: None. Redemption provisions: The 2020 Notes and 2021 Notes are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectus. The Floating Rate Notes may not be redeemed prior to maturity. Closing Date, Time and Location: July November 30, 20122018, 10:00 A.M.a.m., at the offices of Cravath, Swaine & M▇▇▇▇▇ LLP, Worldwide Plaza, 8▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii5(f)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e5(f): None. Other Terms:
1. Statements covered by Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.7(b):
Appears in 1 contract
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. Very truly yours, INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ R▇S▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇▇ Name: R▇S▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇▇ Title: Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS SECURITIES CORP. CITIGROUP GLOBAL MARKETS INCJ.▇. DEUTSCHE BANK ▇▇▇▇▇▇ SECURITIES LLC RBC CAPITAL MARKETS, LLC SANTANDER INVESTMENT SECURITIES INC. UBS W▇▇▇▇ FARGO SECURITIES, LLC By: BNP PARIBAS SECURITIES LLCCORP. By: DEUTSCHE BANK SECURITIES INC. /s/ B. ▇▇▇▇▇▇▇▇ A▇▇▇▇▇▇▇ Name: B. ▇▇▇▇▇▇▇▇ A▇▇▇▇▇▇▇ Title: Managing Director By: /s/JJ.▇. ▇▇▇▇▇▇ SECURITIES LLC By: /s/ Som B▇▇▇▇▇▇▇▇▇▇▇▇ Name: Som B▇▇▇▇▇▇▇▇▇▇▇▇ Title: Executive Director By: RBC CAPITAL MARKETS, LLC By: /s/ S▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: JS▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Director Authorized Signatory By: SANTANDER INVESTMENT SECURITIES INC. By: /s/ EV▇▇▇▇▇ ▇▇▇▇▇▇ Name: EV▇▇▇▇▇ ▇▇▇▇▇▇ Title: Vice President By: /s/ D▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: D▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Executive Director By: W▇▇▇▇ FARGO SECURITIES, LLC By: /s/ C▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: C▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Managing Director Underwriting Agreement dated July 2520, 2012 2022 Registration No. 333-168333 262911 Representatives: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. UBS Securities LLC Title7▇▇ ▇▇▇ ▇▇▇▇▇▇, Purchase Price and Description of Securities: Title: 1.875% Notes due 2022 Principal amount: $1,000,000,000 Purchase price: 97.998% of the principal amount of Notes plus accrued interest from July 30, 2012 Offering price: 98.398% of the principal amount of Notes plus accrued interest from July 30, 2012 Interest: Payable on February 1 and August 1, commencing on February 1, 2013. Sinking fund provisions: None. Redemption provisions: The Notes are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectus. Closing Date, Time and Location: July 30, 2012, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇▇ LLP▇ New York, Worldwide Plaza, 8New York 10019 Attention: Debt Syndicate Email: D▇.▇▇.▇▇▇▇▇▇▇▇▇.▇▇▇▇▇▇▇@▇▇.▇▇▇▇▇▇▇▇▇▇.▇▇▇ J.▇. ▇▇▇▇▇▇ Securities LLC 3▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ New York, New York 10179 Attention: Investment Grade Syndicate Desk Fax: (▇▇▇) ▇▇▇-▇▇▇▇ RBC Capital Markets, LLC 2▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, 8th Floor New York, New York 10281 Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Email: r▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇ Attention: Syndicate Operations Santander Investment Securities Inc. 4▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 5th Floor New York, New York 10022 Fax: 2▇▇-▇▇▇-▇▇▇▇ Email: D▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇.▇▇ Attention: Debt Capital Markets W▇▇▇▇ Fargo Securities, LLC 5▇▇ ▇▇▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements▇ ▇▇▇▇▇▇, 5th Floor Charlotte, North Carolina 28202 Attention: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deletedTransaction Management Email: t▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.
2. Each ▇▇▇ Title, Purchase Price and Description of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State Title: 4.000% Notes due 2025 (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA2025 Notes”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is Underwriters are acting solely as a principal and not in the agent or fiduciary capacity of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of arm’s length contractual counterparty to the Company with respect to the offering Offering (including in connection with determining the terms of the Offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, no Underwriters are advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. 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 process leading thereto (irrespective benefit of whether such Underwriter has advised or is currently advising the Company Underwriters and shall not be on other matters) or any other obligation to behalf of the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriateCompany. The Company further acknowledges and agrees that it will not claim is aware that the Underwriters, or any Underwriters and their affiliates are engaged in a broad range of them, has rendered advisory services transactions which may involve interests that differ from those of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ R▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Name: R▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Title: Vice President Underwriters and Treasurer The foregoing Agreement is hereby confirmed their affiliates have no obligation to disclose such interests and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II transactions to the foregoing AgreementCompany by virtue of any fiduciary, advisory or agency relationship or otherwise. BNP PARIBAS SECURITIES CORP. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE BANK SECURITIES INC. UBS SECURITIES LLC. By: DEUTSCHE BANK SECURITIES INC. By: /s/J▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: J▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Director By: /s/ E▇▇▇▇▇ ▇▇▇▇ Name: E▇▇▇▇▇ ▇▇▇▇ Title: Director Underwriting Agreement dated July 25The Company hereby waives, 2012 Registration No. 333-168333 Representatives: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. UBS Securities LLC Titleto the fullest extent permitted by law, Purchase Price and Description any claims it may have against the Underwriters or their affiliates for breach of Securities: Title: 1.875% Notes due 2022 Principal amount: $1,000,000,000 Purchase price: 97.998% fiduciary duty or alleged breach of fiduciary duty in connection with the sale of the principal amount Shares under this Agreement and agrees that the Underwriters or their affiliates shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of Notes plus accrued interest from July 30, 2012 Offering price: 98.398% of the principal amount of Notes plus accrued interest from July 30, 2012 Interest: Payable such a fiduciary duty claim or to any person asserting a fiduciary duty claim on February 1 and August 1, commencing on February 1, 2013. Sinking fund provisions: None. Redemption provisions: The Notes are redeemable in whole its behalf or in part, at the option right of it or the Company, as described employees or creditors of Company, other than in the Final Prospectus. Closing Date, Time and Location: July 30, 2012, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇ LLP, Worldwide Plaza, 8▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deleted.
2. Each respect of the Underwriters’ obligations under this Agreement. In the course of its business, the Underwriters agrees that it will not offer, sell, or deliver any of the Securitiesand their affiliates may, directly or indirectly, hold long or distribute short positions, trade and otherwise conduct such activities in or with respect to debt or equity securities and/or bank debt of, and/or derivative products relating to, the prospectus supplement Company, other participants in the Offering. In addition, at any given time the Underwriters and/or any of their affiliates may have been and/or be engaged by one or prospectus more entities that may be competitors with, or any other offering material relating otherwise adverse to, the Company in matters unrelated to the SecuritiesOffering. Consistent with applicable legal and regulatory requirements, in or from any jurisdiction except under circumstances that will, the Underwriters have adopted policies and procedures to establish and maintain the best independence of the Underwriters’ knowledge research departments and beliefpersonnel. As a result, result in compliance the Underwriters’ research analysts may hold views, make statements or investment recommendations and/or publish research reports with the applicable laws and regulations and which will not impose any obligations on respect to the Company, the Offering and other participants in the Offering that differ from the views of the Underwriters’ investment banking personnel. The Underwriters also agree to abide by may, at their option and expense, include the following offering restrictions: In relation to each Member State Company’s name and logo and a description of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it Underwriters’ role in connection with the issue or sale of the Securities Offering in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) such newspapers, periodicals, annual reports and other public marketing materials as it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdommay choose.
Appears in 1 contract
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ R▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Name: R▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Title: Vice President and Treasurer IBM Debt Offering The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS CREDIT SUISSE SECURITIES CORP. CITIGROUP GLOBAL MARKETS INC. (EUROPE) LIMITED DEUTSCHE BANK SECURITIES INCAG, LONDON BRANCH G▇▇▇▇▇▇, S▇▇▇▇ & CO. UBS SECURITIES LLCM▇▇▇▇▇ S▇▇▇▇▇▇ & CO. INTERNATIONAL PLC BANCA IMI S.P.A. BANCO SANTANDER, S.A. SOCIÉTÉ GÉNÉRALE UNICREDIT BANK AG By: DEUTSCHE BANK CREDIT SUISSE SECURITIES INC(EUROPE) LIMITED By: /s/A. Gull Name: A▇▇▇▇▇ ▇▇▇▇ Title: Director By: /s/S▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: S▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Senior Counsel By: /s/ A▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: A▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Senior Counsel By: /s/A▇▇▇ ▇. ▇▇▇▇▇▇ Name: A▇▇▇ ▇. ▇▇▇▇▇▇ Title: Vice President By: /s/J▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: J▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Director By: /s/ E/s/P▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: EP▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: Head of Debt Capital Markets By: /s/R▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ /s/ Argent Veseli Name: R▇▇▇▇▇ Broecherer Argent V▇▇▇▇▇ Title: E.D E.D. SOCIÉTÉ GÉNÉRALE By: /s/B▇▇▇▇▇▇ ▇▇▇▇▇ Name: B▇▇▇▇▇▇ ▇▇▇▇▇ Title: Global Co-Head of Corporate Origination UNICREDIT BANK AG By: /s/M▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /s/C▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Name: M▇▇▇▇▇▇ ▇▇▇▇▇▇▇ C▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Title: Director Director Underwriting Agreement dated July 25November 12, 2012 Registration No. 333-168333 Representatives: BNP Paribas Credit Suisse Securities Corp. Citigroup Global Markets Inc. (Europe) Limited O▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Tel: +▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇ Fax: +▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇ Attn: MTN Trading Desk Deutsche Bank Securities Inc. UBS Securities LLC AG, London Branch Winchester House 1 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ Fax Number: +▇▇ (▇▇▇) ▇▇▇ ▇▇▇▇ Attn: Syndicate Desk G▇▇▇▇▇▇, S▇▇▇▇ & Co. 2▇▇ ▇▇▇▇ ▇▇. ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Tel: (▇▇▇) ▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Attn: Registration Department M▇▇▇▇▇ S▇▇▇▇▇▇ & Co. International plc 2▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇ Tel: 0▇▇ ▇▇▇▇ ▇▇▇▇ Fax: +▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇ Email: t▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Attn: Head of Transaction Management Group, Global Capital Markets Title, Purchase Price and Description of Securities: Title: 1.875% Notes due 2022 Principal amount: $€1,000,000,000 Purchase price: 97.99899.283% of the principal amount of the Notes plus accrued interest from July 30November 19, 2012 Offering price: 98.39899.583% of the principal amount of the Notes plus accrued interest from July 30November 19, 2012 Interest: Payable on February 1 and August 1November 19 of each year, commencing on February 1November 19, 2013. Sinking fund provisions: None. Redemption provisions: The Notes are redeemable in whole or in part, at the option of the Company, in whole upon the occurrence of certain tax events, or in whole or in part at a make whole amount, each as described set forth in the Final ProspectusProspectus Supplement dated the date of this Agreement. Closing Date, Time and Location: July 30November 19, 2012, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇ LLP, Worldwide Plaza, 8▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
3. The last sentence of Section 7(b) shall be deleted and replaced by the following text: “The Company acknowledges that the statements set forth in the last paragraph of the cover page of the Preliminary Final Prospectus and the Final Prospectus, the sentence “The underwriters have informed IBM that they intend to make a market in the Notes but are under no obligation to do so and such market making may be terminated at any time without notice.” and the statements contained in the fourth and eighth through tenth paragraphs and the first, third and fourth sentences of the eleventh paragraph under the caption “Underwriting” in the Preliminary Final Prospectus and the Final Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in the Basic Prospectus, any Preliminary Final Prospectus, the Disclosure Package, any Issuer Free Writing Prospectus or the Final Prospectus, and you, as the Representatives, confirm that such statements are correct.
4. The following shall be an additional condition added to Section 5: The Company shall have furnished to the Representatives the opinion of C▇▇▇▇▇▇, Swaine & M▇▇▇▇ LLP, counsel to the Company, dated the Closing Date to the effect that the statements under the caption “United States Taxation” in the Disclosure Package and the Final Prospectus constitute a fair presentation of the material U.S. federal income tax consequences to holders of Securities.
5. The following shall be a new Section 15:
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’sarm's-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. Very truly yours, INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ R▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇▇ Name: R▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇▇ Title: Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BARCLAYS BANK PLC BNP PARIBAS SECURITIES CORP. CITIGROUP GLOBAL MARKETS LIMITED DEUTSCHE BANK AG, LONDON BRANCH ▇.▇. ▇▇▇▇▇▇ SECURITIES PLC UNICREDIT BANK AG BANCO SANTANDER S.A. COMMERZBANK AKTIENGESELLSCHAFT MIZUHO INTERNATIONAL PLC MUFG SECURITIES EMEA PLC SOCIÉTÉ GÉNÉRALE THE TORONTO-DOMINION BANK CREDIT SUISSE SECURITIES (EUROPE) LIMITED ING BANK N.V., BELGIAN BRANCH U.S. BANCORP INVESTMENTS, INC. DEUTSCHE By: BARCLAYS BANK SECURITIES INCPLC By: /s/ ▇. UBS SECURITIES LLC▇▇▇▇ ▇▇▇▇▇▇▇▇▇ III Name: ▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ III Title: Managing Director By: BNP PARIBAS By: /s/ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇ Title: Duly Authorised Signatory By: /s/ ▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇ Title: Authorised Signatory By: CITIGROUP GLOBAL MARKETS LIMITED By: /s/ ▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇ Title: Delegated Signatory By: DEUTSCHE BANK SECURITIES INC. AG, LONDON BRANCH By: /s/J/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Managing Director By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: Managing Director By: ▇.▇. ▇▇▇▇▇▇ SECURITIES PLC By: /s/ ▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇ Title: Vice President [Signature page to the Underwriting Agreement] By: UNICREDIT BANK AG By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ Title: LCD6F2 By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Legal By: BANCO SANTANDER S.A. By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: J▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Executive Director By: COMMERZBANK AKTIENGESELLSCHAFT By: /s/ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ Title: Abteilungsdirektor By: /s/ ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇▇ - ▇▇▇▇▇▇▇ Title: Syndikus By: MIZUHO INTERNATIONAL PLC By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: Managing Director By: MUFG SECURITIES EMEA PLC By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇ Title: Authorised Signatory [Signature page to the Underwriting Agreement] By: SOCIÉTÉ GÉNÉRALE By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Managing Director By: THE TORONTO-DOMINION BANK By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Director By: CREDIT SUISSE SECURITIES (EUROPE) LIMITED By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Authorised Signatory By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Managing Director By: ING BANK N.V., BELGIAN BRANCH By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: Managing Director By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Managing Director By: U.S. BANCORP INVESTMENTS, INC. By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Director By[Signature page to the Underwriting Agreement] Underwriting Agreement dated January 24, 2019 Registration No. 333-212685 Representatives: /s/ EBarclays Bank PLC 5 The North Colonnade Canary Wharf London E14 4BB United Kingdom Fax: +▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇ Attention: Debt Syndicate BNP Paribas ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ NameLondon NW1 6AA United Kingdom Telephone: E+▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇ Fax: +▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇ Attention: Fixed Income Syndicate Citigroup Global Markets Limited Citigroup Centre Canada Square Canary Wharf London E14 5LB United Kingdom Fax: +▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ Attention: Syndicate Desk Deutsche Bank AG, London Branch Winchester House ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Title▇▇▇▇▇▇ London EC2N 2DB United Kingdom Fax: Director Underwriting Agreement dated July 25, 2012 Registration No+▇▇ (▇▇▇) ▇▇▇ ▇▇▇▇ Attention: Syndicate Desk ▇.▇. 333-168333 Representatives▇▇▇▇▇▇ Securities plc ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Canary Wharf London E14 5JP United Kingdom Email: BNP Paribas Securities Corp. Citigroup Global ▇▇▇▇_▇▇_▇▇▇▇_▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ Attention: Head of Debt Syndicate and Head of EMEA Capital Markets Inc. Deutsche Group UniCredit Bank Securities Inc. UBS Securities LLC AG ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ 81925 Munich Germany Fax: +▇▇ ▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇ Attention: Corporate Bond Syndicate – MFM2CS Title, Purchase Price and Description of Securities: Title: 1.8750.375% Notes due 2022 2023 (the “2023 Notes”) 0.875% Notes due 2025 (the “2025 Notes”)
1. 250% Notes due 2027 (the “2027 Notes”)
1. 750% Notes due 2031 (the “2031 Notes”) Principal amount: $2023 Notes: €1,750,000,000 2025 Notes: €1,000,000,000 2027 Notes: €1,000,000,000 2031 Notes: €1,250,000,000 Purchase price: 97.9982023 Notes: 99.350% of the principal amount of Notes the Securities plus accrued interest from July 30and including January 31, 2012 Offering price2019 2025 Notes: 98.39899.122% of the principal amount of Notes the Securities plus accrued interest from July 30and including January 31, 2012 2019 2027 Notes: 99.170% of the principal amount of the Securities plus accrued interest from and including January 31, 2019 2031 Notes: 98.529% of the principal amount of the Securities plus accrued interest from and including January 31, 2019 Offering price: 2023 Notes: 99.550% of the principal amount of the Securities plus accrued interest from and including January 31, 2019 2025 Notes: 99.397% of the principal amount of the Securities plus accrued interest from and including January 31, 2019 2027 Notes: 99.495% of the principal amount of the Securities plus accrued interest from and including January 31, 2019 2031 Notes: 98.954% of the principal amount of the Securities plus accrued interest from and including January 31, 2019 Interest: 2023 Notes Payable on February 1 and August 1January 31 of each year, commencing on February 1January 31, 2013. 2020 2025 Notes Payable on January 31 of each year, commencing on January 31, 2020 2027 Notes Payable on January 29 of each year, commencing on January 29, 2020 2031 Notes Payable on January 31 of each year, commencing on January 31, 2020 Sinking fund provisions: None. Redemption provisions: The Notes Securities are redeemable in whole or in part, at the option of the Company, in whole upon the occurrence of certain tax events, or in whole or in part at a make whole amount, each as described set forth in the Final ProspectusProspectus Supplement dated the date of this Agreement. Closing Date, Time and Location: July 30January 31, 20122019, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇▇ LLP, Worldwide Plaza, 8▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not offered, sold or otherwise made available and will not offer, sell or otherwise make an offer of the available any Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified retail investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus DirectiveEEA. For the purposes of this provision:
(a) the expression "retail investor" means a person who is one (or more) of the following:
(i) a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU (as amended, “MiFID II”); or
(ii) a customer within the meaning of Directive 2016/97/EU (as amended or superseded, the “Insurance Distribution Directive”), where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of ▇▇▇▇▇ ▇▇; or
(iii) not a qualified investor as defined in Directive 2003/71/EC (as amended or superseded, the "Prospectus Directive"); and
(b) the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means offer" includes the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees the Selling Stockholders acknowledge and agree that (i) the purchase and sale of the Securities securities pursuant to this Agreement is an arm’sarm's-length commercial transaction between the CompanyCompany and the Selling Stockholders, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the CompanyCompany or any Selling Stockholder, (iii) no Underwriter has assumed an advisory of or fiduciary responsibility in favor of the Company or any Selling Stockholder with respect to the offering Offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or any Selling Stockholder on other matters) or any other obligation to the Company or any Selling Stockholder except the obligations expressly set forth in this Agreement and (iv) the Company or any Selling Stockholder has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company and each Selling Stockholder agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the CompanyCompany or any Selling Stockholder, in connection with such transaction or the process leading thereto. Each Selling Stockholder acknowledges and agrees that, although the Underwriters may provide certain Selling Stockholders with certain Regulation Best Interest and Form CRS disclosures or other related documentation in connection with the offering, the Underwriters are not making a recommendation to any Selling Stockholder to participate in the offering or sell any securities at the at the purchase price per share set forth in clause (a) of Section 2, and nothing set forth in such disclosures or documentation is intended to suggest that any Underwriter is making such a recommendation. If the foregoing is in accordance with your correctly sets forth the understanding of our agreementbetween the Underwriters, the Selling Stockholders and the Company, please sign and return to us so indicate in the enclosed duplicate hereofspace provided below for that purpose, whereupon this letter and your acceptance shall represent constitute a binding agreement among the Company Company, the Selling Stockholders and the several UnderwritersUnderwriters in accordance with its terms. INTERNATIONAL BUSINESS MACHINES CORPORATION Very truly yours, By: /s/ RName: Title: Address for Notice: ▇▇▇▇▇▇▇▇ ▇▇▇ ▇, ▇▇▇ Name: R▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Title▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇, Attention: Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS SECURITIES CORP. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE BANK SECURITIES INC. UBS SECURITIES LLC. By: DEUTSCHE BANK SECURITIES INC. By: /s/J▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Facsimile: + 30-210-9401-810; email: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇. Copy (which shall not constitute notice) to: ▇▇▇▇▇▇ Name: J& ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Director By: /s/ E▇▇▇▇▇ ▇▇▇▇ Name: E▇▇▇▇▇ ▇▇▇▇ Title: Director Underwriting Agreement dated July 25, 2012 Registration No. 333-168333 Representatives: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. UBS Securities LLC Title, Purchase Price and Description of Securities: Title: 1.875% Notes due 2022 Principal amount: $1,000,000,000 Purchase price: 97.998% of the principal amount of Notes plus accrued interest from July 30, 2012 Offering price: 98.398% of the principal amount of Notes plus accrued interest from July 30, 2012 Interest: Payable on February 1 and August 1, commencing on February 1, 2013. Sinking fund provisions: None. Redemption provisions: The Notes are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectus. Closing Date, Time and Location: July 30, 2012, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇ LLP, Worldwide Plaza, 8▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. Delayed Delivery Arrangements▇▇▇▇▇▇, Esq., Facsimile: None(▇▇▇) ▇▇▇-▇▇▇▇, Email: ▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ If the foregoing correctly sets forth the understanding between the Underwriters, the Selling Stockholders and the Company, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement among the Company, the Selling Stockholders and the several Underwriters in accordance with its terms. Items specified pursuant to Section 5(e)(iiiVery truly yours, By: Name: Semiramis Paliou Title: Authorized Representative Address for Notice: c/o OceanPal Inc. Pendelis 26, ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Facsimile: + 30-210-9401-810; email: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇. Copy (which shall not constitute notice) to be covered by to: ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, Email: ▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ If the foregoing correctly sets forth the understanding between the Underwriters, the Selling Stockholders and the Company, please so indicate in the space provided below for that purpose, whereupon this letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): Noneshall constitute a binding agreement among the Company, the Selling Stockholders and the several Underwriters in accordance with its terms. Other Terms:
1Very truly yours, By: Name: Semiramis Paliou Title: Authorized Representative Address for Notice: c/o OceanPal Inc. Pendelis 26, ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Facsimile: + 30-210-9401-810; email: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇. Section 4(B)(aCopy (which shall not constitute notice) - to: ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Facsimile: (h▇▇▇) are deleted▇▇▇-▇▇▇▇, Email: ▇▇▇▇▇▇@▇▇▇▇▇▇.
2▇▇▇ If the foregoing correctly sets forth the understanding between the Underwriters, the Selling Stockholders and the Company, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement among the Company, the Selling Stockholders and the several Underwriters in accordance with its terms. Each Very truly yours, By: Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: Authorized Representative Address for Notice: c/o OceanPal Inc. Pendelis 26, ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Facsimile: + 30-210-9401-810; email: ▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇. Copy (which shall not constitute notice) to: ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, Email: ▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ Accepted on the date first above written. MAXIM GROUP LLC As the Representative of the several Underwriters agrees that it will listed on Schedule I By: Name: Title: Address for Notice: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ Copy (which shall not offerconstitute notice) to: Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP, sell▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, or deliver any of the Securities▇▇▇ ▇▇▇▇, directly or indirectly▇▇ ▇▇▇▇▇, or distribute the prospectus supplement or prospectus or any other offering material relating to the SecuritiesAttention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, in or from any jurisdiction except under circumstances that willEsq., to the best of the Underwriters’ knowledge and beliefFacsimile: (▇▇▇) ▇▇▇-▇▇▇▇, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictionsemail: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ Maxim Group LLC $ Tuscany Shipping Corp. $ 4 Sweet Dreams, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:S.A. $ Abra Marinvest Inc. $
(a) to any legal entity which This Selling Stockholder is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and represented by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom▇▇▇▇▇▇ & ▇▇▇▇▇▇.
Appears in 1 contract
Arm’s Length Transaction. The Company Borrower acknowledges and agrees that (i) the purchase and sale advance of the Securities Loan by the Lender pursuant to this Master Loan Agreement is an arm’s-length commercial transaction between the Company, on the one hand, Borrower and the several Underwriters, on the otherLender, (ii) in connection therewith and with the process financing discussions, undertakings and procedures leading up to the consummation of such transaction each Underwriter transaction, the Lender is and has been acting solely as a principal and is not acting as the agent or fiduciary of or in any way advising the CompanyBorrower, (iii) no Underwriter neither Lender nor Authority has assumed an advisory of or fiduciary responsibility in favor of the Company Borrower with respect to the offering financing contemplated hereby or the process discussions, undertakings and procedures leading thereto (irrespective of whether such Underwriter the Lender has advised provided other services or is currently advising providing other services to the Company Borrower on other matters) or and neither Lender nor Authority has any other obligation to the Company Borrower with respect to the financing contemplated hereby except the obligations expressly set forth in this Master Loan Agreement and (iv) the Company Borrower has consulted its own legal legal, financial and financial other advisors to the extent it has deemed appropriate. Amount ($) of Draw (Request) Aggregate Amount of Loan Outstanding TOTAL $
Section 1. Borrower hereby requests, and Lender hereby approves, a draw of Loan Proceeds in the amount of $ , all subject to the provisions of the Master Loan Agreement, for the refinancing of the Existing Indebtedness.
Section 2. Borrower hereby certifies that obligations in amounts stated in this Draw Request are a proper use of Loan proceeds.
Section 1. Borrower hereby requests, and Lender hereby approves, a draw of Loan Proceeds in the amount of $ , all subject to the provisions of this Master Loan Agreement.
Section 2. No Loan Proceeds subject to this Draw Request will be applied by Borrower to pay costs of issuance related to the Loan.
Section 3. Borrower represents, covenants and warrants that (a) there has not been any material adverse change in its condition, business, operations, performance, properties or prospects since the date of the Master Loan Agreement, (b) all of its representations and warranties contained in the Master Loan Agreement or the Tax Agreement were true and accurate as of the date made, remain true and accurate as of the date of this certificate and are hereby reaffirmed; and (c) no event has occurred and is continuing or would result from the loan of Loan Proceeds pursuant to this Draw Request which constitutes a Default, an Event of Default under the Master Loan Agreement or a Determination of Taxability.
Section 4. The Company agrees that it will not claim undersigned authorized representative, on behalf of Borrower, hereby identifies the costs, as set forth in Schedule I hereto, pertaining to this Draw Request. Such costs are either (i) currently payable by Borrower or (ii) have been paid by Borrower and that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes Loan Proceeds received for such costs pursuant to this Draw Request will be applied to reimburse
Section 5. Borrower hereby certifies that obligations in amounts stated in this Draw Request are to be incurred by Borrower and each item is a fiduciary or similar duty proper charge. Borrower hereby certifies that the Loan Proceeds disbursed pursuant to the Company, in connection with such transaction or the process leading thereto. If the foregoing is each prior Draw Request were disbursed in accordance with your understanding the terms of our agreementeach such prior Draw Request.
Section 6. Attached hereto are all certificates, please sign approvals, documents and return other materials required to us be delivered by Borrower to Lender with this Draw Request pursuant to Section 5.03 of the enclosed duplicate hereofMaster Loan Agreement.
Section 7. Borrower hereby certifies that no Event of Default exists, whereupon this letter and, to the best of its knowledge, no event has occurred and your acceptance shall represent a binding agreement among no condition exists that, after notice or lapse of time, or both, would constitute an Event of Default under the Company and the several UnderwritersMaster Loan Agreement;
1. INTERNATIONAL BUSINESS MACHINES CORPORATION ByAmount of draw (not less than $0,000,000): $
2. Description of facilities to be financed with draw:
3. Street address or addresses of facilities to be financed with draw: /s/ REXHIBIT D PROPERTY DESCRIPTION THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE TOWN OF ▇▇▇▇▇▇▇▇, COUNTY OF SAN MATEO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS: LOT 23 AS SHOWN ON THAT CERTAIN MAP ENTITLED, "▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Name: R▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Title: Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto, ATHERTON, SAN MATEO COUNTY, CALIFORNIA", FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN MATEO COUNTY, STATE OF CALIFORNIA, ON SEPTEMBER 20, 1946 IN BOOK 26 OF MAPS AT PAGE(S) 21 AND 22. For themselves and the other several UnderwritersJPN 070-037-371-05A California Enterprise Development Authority Sacramento, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS SECURITIES CORP. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE BANK SECURITIES INC. UBS SECURITIES LLC. By: DEUTSCHE BANK SECURITIES INC. By: /s/JCalifornia Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ NameUS LLP San Francisco, California Re: JMaster Loan Agreement, dated as of March 1, 2017, by and among First Republic Bank, California Enterprise Development Authority and Menlo School Ladies and Gentlemen: The undersigned is Lender of the principal amount not to exceed $3,000,000 (the “Loan”) issued pursuant to the Master Loan Agreement, dated as of March 1, 2017 (the “Loan Agreement”) by and among the California Enterprise Development Authority (the “Authority”), Menlo School (the “Borrower”) and First Republic Bank (the “Lender”). The undersigned acknowledges that the proceeds of the Loan were delivered to the Borrower for the purpose of refinancing the acquisition of certain real property and improvements located in Atherton, California (the “Project”), as more particularly described in the Loan Agreement. The undersigned hereby represents and warrants to you that:
1. The Lender has authority to make the Loan pursuant to the Loan Agreement and to execute this letter and any other instruments and documents required to be executed by the Lender in connection with the Loan.
2. The Lender is a “Qualified Institutional Buyer” and has sufficient knowledge and experience in financial and business matters, including purchase and ownership of municipal and other tax-exempt obligations and is capable of evaluating the merits and risks of its investment in the Loan. The Lender is able to bear the economic risk of, and entire loss of, an investment in the Loan. The definition of Qualified Institutional Buyer is attached hereto.
3. The Loan is being given by the Lender for investment purposes. The Lender intends to hold the Loan for its own account and for an indefinite period of time, and does not intend at this time to dispose of all or any part of the Loan. The Lender understands that it may need to bear the risks of this investment for an indefinite time, since any transfer prior to maturity may not be possible.
4. The Lender understands that the Loan Agreement is not registered under the 1933 Act; and further understands that the Loan (a) is not being registered or otherwise qualified for sale under the “Blue Sky” laws and regulations of any state, (b) will not be listed in any stock or other securities exchange, (c) will not carry a rating from any rating service and (d) will be delivered in a form which may not be readily marketable. The Lender agrees that it will comply with any applicable state and federal securities laws then in effect with respect to any disposition of the Loan by it, and further acknowledges that any current exemption from registration of the Loan does not affect or diminish such requirements.
5. The undersigned is a duly appointed, qualified and acting officer of the Lender and is authorized to cause the Lender to make the certificates, representations and warranties contained herein by execution of this letter on behalf of the Lender.
6. The Lender acknowledges that it has either been supplied with or been given access to information, including financial statements and other financial information, to which a reasonable Lender would attach significance in making investment decisions, and the Lender has had the opportunity to ask questions and receive answers from knowledgeable individuals concerning the Borrower, the Project and the Loan and the security therefor so that, as a reasonable investor, the Lender has been able to make a decision to grant the Loan. The Lender acknowledges that it has not relied upon the Authority for any information in connection with the Lender’s grant of the Loan.
7. The Lender acknowledges that the obligations of the Authority to make loan payments with respect to the Loan are special, limited obligations payable solely from amounts paid to the Authority from the Borrower pursuant to the terms of the Loan Agreement and the Authority shall not be directly or indirectly or contingently or morally obligated to use any other moneys or assets of the Authority for all or any portion of such loan payments.
8. The Lender has made its own inquiry and analysis with respect to the Loan and the security therefor, and other material factors affecting the security and payment of the Loan. The Lender is aware that the business of the Borrower involves certain economic variables and risks that could adversely affect the security for the Loan.
9. The Lender acknowledges that its right to sell and transfer the Loan is subject to compliance with the transfer restrictions set forth in the Loan Agreement, including the requirement of the delivery to the Authority and the Borrower of an investor’s letter from the transferee to substantially the same effect as this Investor Letter, with no revisions except as may be approved in writing by the Authority. Failure to deliver such letter to the Authority and the Borrower shall cause the purported transfer to be null and void. The Lender agrees to indemnify and hold harmless the Authority with respect to any claim asserted against the Authority that is based upon the sale, transfer or other disposition of the Loan in violation of the provisions hereof.
10. None of Norton ▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Director By: /s/ E▇▇▇▇▇ ▇▇▇▇ Name: E▇▇▇▇▇ ▇▇▇▇ Title: Director Underwriting Agreement dated July 25, 2012 Registration No. 333-168333 Representatives: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. UBS Securities LLC Title, Purchase Price and Description of Securities: Title: 1.875% Notes due 2022 Principal amount: $1,000,000,000 Purchase price: 97.998% of the principal amount of Notes plus accrued interest from July 30, 2012 Offering price: 98.398% of the principal amount of Notes plus accrued interest from July 30, 2012 Interest: Payable on February 1 and August 1, commencing on February 1, 2013. Sinking fund provisions: None. Redemption provisions: The Notes are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectus. Closing Date, Time and Location: July 30, 2012, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇ LLP, Worldwide Plaza, 8▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers US LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member StateLender’s Counsel”), each Underwriter represents and agrees that with effect the Authority, their members, governing body, or any of their employees, counsel or agents will have any responsibility to the Lender for the accuracy or completeness of information obtained by the Lender from and including any source regarding the date on which Borrower or its financial condition, or regarding the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer ability of the Securities Borrower to pay the Loan, or the sufficiency of any security therefore. No written information has been provided by the Authority to the public in that Relevant Member State other than:
(a) Lender with respect to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive)Loan. The Lender acknowledges that, as permitted under between the Prospectus Directive, subject to obtaining the prior consent Lender and all of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provisionparties, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form Lender has assumed responsibility for obtaining such information and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, making such review as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated Lender deemed necessary or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it desirable in connection with its decision to grant the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United KingdomLoan.
Appears in 1 contract
Sources: Master Loan Agreement
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’sarm's-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. Very truly yours, INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ R▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Name: R▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Title: Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS SECURITIES CORP. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE BANK SECURITIES INC. UBS ▇.▇. ▇▇▇▇▇▇ SECURITIES LLC. LLC ▇▇▇▇▇ FARGO SECURITIES, LLC By: DEUTSCHE BANK SECURITIES INC. By: /s/J/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: J▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Director Director/CMTS North America By: /s/ E▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Name: E▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Title: Managing Director Underwriting Agreement dated July 25May 9, 2012 2011 Registration No. 333-168333 Representatives: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. UBS ▇.▇. ▇▇▇▇▇▇ Securities LLC ▇▇▇▇▇ Fargo Securities, LLC Title, Purchase Price and Description of Securities: Title: 1.8751.250% Notes due 2022 2014 Principal amount: $1,000,000,000 Purchase price: 97.99899.756% of the principal amount of Notes plus accrued interest from July 30May 12, 2012 2011 Offering price: 98.39899.906% of the principal amount of Notes plus accrued interest from July 30May 12, 2012 2011 Interest: Payable on February 1 May 12 and August 1November 12, commencing on February 1November 12, 20132011. Sinking fund provisions: None. Redemption provisions: The Notes are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectus. Closing Date, Time and Location: July 30May 12, 20122011, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇▇ LLP, Worldwide Plaza, 8▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. Very truly yours, INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ R▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇▇ Name: R▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇▇ Title: Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS SECURITIES CORPBOFA SECURITIES, INC. CITIGROUP GLOBAL MARKETS INC. CREDIT SUISSE SECURITIES (USA) LLC DEUTSCHE BANK SECURITIES INC. UBS SECURITIES LLC▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO. By: DEUTSCHE BANK LLC SANTANDER INVESTMENT SECURITIES INC. SG AMERICAS SECURITIES, LLC ▇▇▇▇▇ FARGO SECURITIES, LLC By: /s/J/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: J▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Director By: /s/ E▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Title: Managing Director By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: E▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Managing Director Underwriting Agreement dated July 25, 2012 Registration No. 333-168333 RepresentativesBy: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. UBS Securities LLC Title, Purchase Price and Description of Securities: Title: 1.875% Notes due 2022 Principal amount: $1,000,000,000 Purchase price: 97.998% of the principal amount of Notes plus accrued interest from July 30, 2012 Offering price: 98.398% of the principal amount of Notes plus accrued interest from July 30, 2012 Interest: Payable on February 1 and August 1, commencing on February 1, 2013. Sinking fund provisions: None. Redemption provisions: The Notes are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectus. Closing Date, Time and Location: July 30, 2012, 10:00 A.M., at the offices of Cravath, Swaine & M/s/ ▇▇▇▇ LLP, Worldwide Plaza, 8▇. ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇ Title: Managing Director By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Managing Director By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Managing Director By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ Title: Executive Director By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Vice President By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Director By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Director Underwriting Agreement dated April 30, 2020 Registration No. Delayed Delivery Arrangements333-230099 Representatives: None. Items specified pursuant BofA Securities, Inc. ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ NY1-50-12-01 New York, New York 10020 Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Attention: High Grade Debt Capital Markets Transaction Management/Legal Citigroup Global Markets Inc. ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ New York, New York 10013 Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Attention: General Counsel Credit Suisse Securities (USA) LLC ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ New York, New York ▇▇▇▇▇-▇▇▇▇ Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Attention: IBCM-Legal Deutsche Bank Securities Inc. ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ New York, New York 10005 Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Attention: Debt Capital Markets Syndicate, with a copy to Section 5(e)(iiiGeneral Counsel ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ New York, New York 10282 Attention: Registration Department Santander Investment Securities Inc. ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ New York, New York 10022 Fax: (▇▇▇) to be covered by ▇▇▇-▇▇▇▇ Attention: Debt Capital Markets SG Americas Securities, LLC ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ New York, New York 10167 Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Attention: High Grade Bond Syndicate ▇▇▇▇▇ Fargo Securities, LLC ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, 5th Floor Charlotte, NC 28202 Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Attention: Transaction Management Title, Purchase Price and Description of Securities: Title: 1.700% Notes due 2027 (the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:“2027 Notes”)
1. Section 4(B)(a) - 950% Notes due 2030 (h) are deleted.the “2030 Notes”)
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State 850% Notes due 2040 (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA2040 Notes”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’sarm's-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. Very truly yours, INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ R▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Name: R▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Title: Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS CREDIT SUISSE SECURITIES CORP. CITIGROUP GLOBAL MARKETS INC. (USA) LLC DEUTSCHE BANK SECURITIES INC. UBS SECURITIES LLC▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED By: DEUTSCHE BANK SECURITIES INC. By: /s/J/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Name: J▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Title: Managing Director By: /s/ E▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: E▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Director Underwriting Agreement dated July 25December 6, 2012 2010 Registration No. 333-168333 Representatives: BNP Paribas Credit Suisse Securities Corp. Citigroup Global Markets Inc. (USA) LLC Deutsche Bank Securities Inc. UBS Securities LLC ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated Title, Purchase Price and Description of Securities: Title: 1.8752.000% Notes due 2022 2016 Principal amount: $1,000,000,000 Purchase price: 97.99899.428% of the principal amount of Notes plus accrued interest from July 30December 9, 2012 2010 Offering price: 98.39899.678% of the principal amount of Notes plus accrued interest from July 30December 9, 2012 2010 Interest: Payable on February 1 January 5 and August 1July 5 of each year, commencing on February 1July 5, 20132011. Sinking fund provisions: None. Redemption provisions: The Notes are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectus. Closing Date, Time and Location: July 30December 9, 20122010, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇▇ LLP, Worldwide Plaza, 8▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:.
1. Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: European Economic Area In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other thanprior to the publication of a prospectus in relation to the Securities which has been approved by the competent authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance with the Prospectus Directive, except that it may, with effect from and including the Relevant Implementation Date, make an offer of the Securities to the public in that Relevant Member State at any time:
(a) to any legal entity entities which is a qualified investor as defined are authorized or regulated to operate in the Prospectus Directivefinancial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities;
(b) to fewer any company which has two or more of
1. an average of at least 250 employees during the last financial year;
2. a total balance sheet of more than 100 or, if the Relevant Member State has implemented the relevant provision €43,000,000 and
3. an annual net turnover of the 2010 PD Amending Directive, 150, natural or legal persons (other more than qualified investors as defined in the Prospectus Directive)€50,000,000, as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offershown in its last annual or consolidated accounts; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall which do not require the publication by the Company or any Underwriter to publish of a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, State and the expression “Prospectus Directive” Directive means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the each Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United KingdomState.
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees the Selling Stockholders acknowledge and agree that (i) the purchase and sale of the Securities securities pursuant to this Agreement is an arm’s-length commercial transaction between the CompanyCompany and the Selling Stockholders, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the CompanyCompany or any Selling Stockholder, (iii) no Underwriter has assumed an advisory of or fiduciary responsibility in favor of the Company or any Selling Stockholder with respect to the offering Offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company or any Selling Stockholder on other matters) or any other obligation to the Company or any Selling Stockholder except the obligations expressly set forth in this Agreement and (iv) the Company or any Selling Stockholder has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company and each Selling Stockholder agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the CompanyCompany or any Selling Stockholder, in connection with such transaction or the process leading thereto. Each Selling Stockholder acknowledges and agrees that, although the Underwriters may provide certain Selling Stockholders with certain Regulation Best Interest and Form CRS disclosures or other related documentation in connection with the offering, the Underwriters are not making a recommendation to any Selling Stockholder to participate in the offering or sell any securities at the at the purchase price per share set forth in clause (a) of Section 2, and nothing set forth in such disclosures or documentation is intended to suggest that any Underwriter is making such a recommendation. If the foregoing is in accordance with your correctly sets forth the understanding of our agreementbetween the Underwriters and the Company, please sign and return to us so indicate in the enclosed duplicate hereofspace provided below for that purpose, whereupon this letter and your acceptance shall represent constitute a binding agreement among the Company and the several UnderwritersUnderwriters in accordance with its terms. INTERNATIONAL BUSINESS MACHINES CORPORATION Very truly yours, By: /s/ RName: Title: Address for Notice: ▇▇▇▇▇▇▇▇ ▇▇▇ ▇, ▇▇▇ Name: R▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Title▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇, Attention: Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS SECURITIES CORP. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE BANK SECURITIES INC. UBS SECURITIES LLC. By: DEUTSCHE BANK SECURITIES INC. By: /s/J▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Facsimile: + 30-210-9401-810; email: [ ] Copy (which shall not constitute notice) to: ▇▇▇▇▇▇ Name: J& ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Director By: /s/ E▇▇▇▇▇ ▇▇▇▇ Name: E▇▇▇▇▇ ▇▇▇▇ Title: Director Underwriting Agreement dated July 25, 2012 Registration No. 333-168333 Representatives: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. UBS Securities LLC Title, Purchase Price and Description of Securities: Title: 1.875% Notes due 2022 Principal amount: $1,000,000,000 Purchase price: 97.998% of the principal amount of Notes plus accrued interest from July 30, 2012 Offering price: 98.398% of the principal amount of Notes plus accrued interest from July 30, 2012 Interest: Payable on February 1 and August 1, commencing on February 1, 2013. Sinking fund provisions: None. Redemption provisions: The Notes are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectus. Closing Date, Time and Location: July 30, 2012, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇ LLP, Worldwide Plaza, 8▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: [ ], Esq., Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, Email: [ ] By: Name: Title: Address for Notice: ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: [ ], Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇, email: ▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ Copy (which shall not constitute notice) to: Ellenoff ▇▇▇▇▇▇▇▇ & Schole LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. Delayed Delivery Arrangements▇▇▇▇▇▇▇▇, Esq., Facsimile: None. Items specified pursuant to Section 5(e)(iii(▇▇▇) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a▇▇▇-▇▇▇▇, email: ▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇ Maxim Group LLC $ Total $ [ ] (a) - $ [ ] (ha) are deleted.
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive [ ] (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”a) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:Total $
(a) to any legal entity which This Selling Stockholder is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 orrepresented by [▇▇▇▇▇▇ & ▇▇▇▇▇▇], if the Relevant Member State and has implemented the relevant provision appointed [●] and [●], and each of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securitiesthem, as the same may be varied Attorneys in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United KingdomFact for such Selling Stockholder.
Appears in 1 contract
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. Very truly yours, INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ R▇▇▇▇▇ M▇▇▇ ▇▇▇▇▇▇▇ Name: R▇▇M▇▇▇ ▇▇▇ ▇▇▇▇▇ Title: Vice President and Assistant Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS SECURITIES CORP. BARCLAYS BANK PLC CITIGROUP GLOBAL MARKETS LIMITED G▇▇▇▇▇▇ S▇▇▇▇ & CO. LLC J.▇. ▇▇▇▇▇▇ SECURITIES PLC M▇▇▇▇▇▇ L▇▇▇▇ INTERNATIONAL MIZUHO INTERNATIONAL PLC MUFG SECURITIES EMEA PLC THE TORONTO-DOMINION BANK BANCO BILBAO VIZCAYA ARGENTARIA, S.A. CANADIAN IMPERIAL BANK OF COMMERCE, LONDON BRANCH TRUIST SECURITIES, INC. DEUTSCHE BANK SECURITIES U.S. BANCORP INVESTMENTS, INC. UBS W▇▇▇▇ FARGO SECURITIES LLCINTERNATIONAL LIMITED ACADEMY SECURITIES, INC. INDEPENDENCE POINT SECURITIES LLC PENSERRA SECURITIES LLC By: DEUTSCHE BARCLAYS BANK SECURITIES INC. PLC By: /s//s/ J▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: J▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Authorised Signatory By: CITIGROUP GLOBAL MARKETS LIMITED By: /s/ A▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: A▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Delegated Signatory By: G▇▇▇▇▇▇ S▇▇▇▇ & CO. LLC By: /s/ M▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: M▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: Managing Director By: J.▇. ▇▇▇▇▇▇ SECURITIES PLC By: /s/ R▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: R▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Executive Director By: M▇▇▇▇▇▇ L▇▇▇▇ INTERNATIONAL By: /s/ A▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ Name: A▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇ Title: Managing Director By: MIZUHO INTERNATIONAL PLC By: /s/ M▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: M▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Executive Director By: MUFG SECURITIES EMEA PLC By: /s/ A▇▇▇▇ ▇▇▇▇▇▇ Name: A▇▇▇▇ ▇▇▇▇▇▇ Title: Authorised Signatory By: THE TORONTO-DOMINION BANK By: /s/ F▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: F▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Director, Transaction Advisory Group By: Banco Bilbao Vizcaya Argentaria, S.A. By: /s/ V▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ (DCM) Name: V▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇ (DCM) Title: Director By: /s/ S▇▇▇▇▇ de las C▇▇▇▇▇▇ Name: S▇▇▇▇▇ de las C▇▇▇▇▇▇ Title: Managing Director By: Canadian Imperial Bank of Commerce, London Branch By: /s/ A▇▇▇▇▇ ▇▇▇▇ Name: A▇▇▇▇▇ ▇▇▇▇ Title: Managing Director By: Truist Securities, Inc. By: /s/ J▇▇▇ ▇▇▇▇▇▇▇ Name: J▇▇▇ ▇▇▇▇▇▇▇ Title: Managing Director By: U.S. Bancorp Investments, Inc. By: /s/ K▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Name: K▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Title: Managing Director By: W▇▇▇▇ Fargo Securities International Limited By: /s/ D▇▇▇▇ ▇▇▇▇▇ Name: D▇▇▇▇ ▇▇▇▇▇ Title: Managing Director By: Academy Securities, Inc. By: /s/ M▇▇▇▇▇▇ ▇▇▇▇ Name: M▇▇▇▇▇▇ ▇▇▇▇ Title: Chief Compliance Officer By: Independence Point Securities LLC By: /s/ I▇▇▇▇ ▇▇▇▇▇▇ Name: I▇▇▇▇ ▇▇▇▇▇▇ Title: Managing Director By: Penserra Securities LLC By: /s/ J▇▇▇ ▇▇▇▇▇▇▇▇ Name: J▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Director ByUnderwriting Agreement dated January 30, 2023 Registration No. 333-262911 Representatives: /s/ EBarclays Bank PLC 1 ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ NameLondon E14 5HP, United Kingdom Tel: E+▇▇ (▇) ▇▇ ▇▇▇▇ ▇▇▇▇ TitleAttn: Director Underwriting Agreement dated July 25, 2012 Registration No. 333-168333 RepresentativesDebt Syndicate Email: BNP Paribas Securities Corp. L▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Citigroup Global Markets Inc. Deutsche Bank Limited Citigroup Centre Canada Square Canary Wharf London E14 5LB United Kingdom Fax No.: +▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ Attention: Syndicate Desk G▇▇▇▇▇▇ S▇▇▇▇ & Co. LLC 2▇▇ ▇▇▇▇ ▇▇▇▇▇▇ New York, New York 10282-2198 Attention: Registration Department J.▇. ▇▇▇▇▇▇ Securities Inc. UBS Securities LLC Title, Purchase Price and Description plc 2▇ ▇▇▇▇ ▇▇▇▇▇▇ Canary Wharf London E14 5JP United Kingdom Email: e▇▇▇_▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇.▇▇▇ Attention: Head of Securities: Title: 1.875% Notes due 2022 Principal amount: $1,000,000,000 Purchase price: 97.998% of the principal amount of Notes plus accrued interest from July 30, 2012 Offering price: 98.398% of the principal amount of Notes plus accrued interest from July 30, 2012 Interest: Payable on February 1 and August 1, commencing on February 1, 2013. Sinking fund provisions: None. Redemption provisions: The Notes are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectus. Closing Date, Time and Location: July 30, 2012, 10:00 A.M., at the offices of Cravath, Swaine & International Syndicate M▇▇▇▇▇▇ LLP, Worldwide Plaza, 8L▇▇▇▇ International 2 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ London EC1A 1HQ United Kingdom Tel: +▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇ Fax: +▇▇ (▇)▇▇ ▇▇▇▇ ▇▇▇▇ Email: d▇▇_▇▇▇@▇▇▇▇.▇▇▇ Attn: Syndicate Desk Mizuho International plc 30 Old B▇▇▇▇▇ London, EC4M 7AU United Kingdom MUFG Securities EMEA plc Ropemaker Place 2▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ London EC2Y 9AJ Attention: Legal – Primary Markets Email: l▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇.▇▇.▇▇▇▇.▇▇ The Toronto-Dominion Bank 6▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements▇▇ London EC2R 8AP United Kingdom Attention: None. Items specified pursuant to Section 5(e)(iii(UK) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deletedHead of Syndicate & Origination Tel: +▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ Email: T▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇▇▇.
2. Each ▇▇▇ Title, Purchase Price and Description of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State Title: 3.375% Notes due 2027 (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA2027 Notes”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. Very truly yours, INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ R▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Name: R▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Title: Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS SECURITIES CORP. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE BANK SECURITIES INC. G▇▇▇▇▇▇, S▇▇▇▇ & CO. HSBC SECURITIES (USA) INC. UBS SECURITIES LLC. LLC By: DEUTSCHE BANK HSBC SECURITIES (USA) INC. By: /s/J/s/ D▇▇▇▇ ▇▇▇. ▇▇▇▇▇ Name: JD▇▇▇▇ ▇▇▇. ▇▇▇▇▇ Title: Managing Director By: /s/ E▇▇▇▇▇ ▇▇▇▇ Name: E▇▇▇▇▇ ▇▇▇▇ Title: Director Senior Vice President Underwriting Agreement dated July 2519, 2012 2011 Registration No. 333-168333 Representatives: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. G▇▇▇▇▇▇, S▇▇▇▇ & Co. HSBC Securities (USA) Inc. UBS Securities LLC Title, Purchase Price and Description of Securities: Title: 1.8751.950% Notes due 2022 2016 Principal amount: $1,000,000,000 2,000,000,000 Purchase price: 97.99899.178% of the principal amount of Notes plus accrued interest from July 3022, 2012 2011 Offering price: 98.39899.428% of the principal amount of Notes plus accrued interest from July 3022, 2012 2011 Interest: Payable on February 1 January 22 and August 1July 22, commencing on February 1January 22, 20132012. Sinking fund provisions: None. Redemption provisions: The Notes are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectus. Closing Date, Time and Location: July 3022, 20122011, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇ LLP, Worldwide Plaza, 8▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: European Economic Area In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom...
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. Very truly yours, INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ R▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇▇ Name: R▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇▇ Title: Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS SECURITIES CORP▇▇▇▇▇▇▇, SACHS & CO. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE BANK RBC CAPITAL MARKETS, LLC SANTANDER INVESTMENT SECURITIES INC. UBS SECURITIES LLCU.S. BANCORP INVESTMENTS, INC. ▇▇▇▇▇▇▇, ▇▇▇▇▇ & CO. By: DEUTSCHE BANK SECURITIES INC. /s/ ▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇ Title: Vice President By: /s/J/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Title: Authorized Signatory By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: J▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Executive Director By: /s/ E▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: E▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Title: Senior Vice President By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Title: Managing Director Underwriting Agreement dated July 25November 4, 2012 2015 Registration No. 333-168333 190160 Representatives: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche Bank ▇▇▇▇▇▇▇, Sachs & Co. ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ Attention: Registration Department RBC Capital Markets, LLC Three World Financial Center ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, 8th Floor New York, NY 10281 Fax: (▇▇▇) ▇▇▇-▇▇▇▇ Attention: Transaction Management – ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Santander Investment Securities Inc. UBS Securities LLC ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Attention: Debt Capital Markets Fax: ▇▇▇-▇▇▇-▇▇▇▇ U.S. Bancorp Investments, Inc. ▇▇▇ ▇. ▇▇▇▇▇ St., 26th Floor Charlotte, NC 28202 Attention: Credit Fixed Income Fax: ▇▇▇-▇▇▇-▇▇▇▇ Title, Purchase Price and Description of Securities: Title: 1.8752.875% Notes due 2022 Principal amount: $1,000,000,000 900,000,000 Purchase price: 97.99899.285% of the principal amount of Notes plus accrued interest from July 30November 9, 2012 2015 Offering price: 98.39899.585% of the principal amount of Notes plus accrued interest from July 30November 9, 2012 2015 Interest: Payable on February 1 May 9 and August 1November 9 of each year, commencing on February 1May 9, 2013. 2016 Sinking fund provisions: None. Redemption provisions: The Notes are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectus. Closing Date, Time and Location: July 30November 9, 20122015, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇▇ LLP, Worldwide Plaza▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 8▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, . provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73▇▇▇▇/EU▇▇/▇▇. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( ▇▇▇ ▇▇▇▇ (the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’sarm's-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. INTERNATIONAL BUSINESS MACHINES CORPORATION Very truly yours, IBM CREDIT LLC By: /s/ R▇▇▇▇▇ A▇▇▇ ▇▇▇▇▇▇ Name: R▇▇A▇▇▇ ▇▇▇ ▇▇▇▇ Title: Vice President and Treasurer President, Finance IBM Debt Offering The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS SECURITIES CORP. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE BANK J.▇. ▇▇▇▇▇▇ SECURITIES INC. UBS SECURITIES LLC. LLC M▇▇▇▇▇▇ L▇▇▇▇, P▇▇▇▇▇, F▇▇▇▇▇ & S▇▇▇▇ INCORPORATED W▇▇▇▇ FARGO SECURITIES, LLC By: DEUTSCHE BANK SECURITIES INC/s/ A▇▇▇ ▇. ▇▇▇▇▇▇▇ Name: A▇▇▇ ▇. ▇▇▇▇▇▇▇ Title: Vice President By: /s/J/s/ Som B▇▇▇▇▇▇▇▇▇▇▇▇ Name: Som B▇▇▇▇▇▇▇▇▇▇▇▇ Title: Executive Director By: /s/ L▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: JL▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Director By: /s/ E▇▇▇▇▇ ▇▇▇▇ Name: E▇▇▇▇▇ ▇▇▇▇ Title: Director Underwriting Agreement dated July 25, 2012 Registration No. 333-168333 Representatives: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. UBS Securities LLC Title, Purchase Price and Description of Securities: Title: 1.875% Notes due 2022 Principal amount: $1,000,000,000 Purchase price: 97.998% of the principal amount of Notes plus accrued interest from July 30, 2012 Offering price: 98.398% of the principal amount of Notes plus accrued interest from July 30, 2012 Interest: Payable on February 1 and August 1, commencing on February 1, 2013. Sinking fund provisions: None. Redemption provisions: The Notes are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectus. Closing Date, Time and Location: July 30, 2012, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇ LLP, Worldwide Plaza, 8▇▇ C▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: C▇, ▇▇▇▇▇ ▇▇▇▇▇▇ Title: Director Underwriting Agreement dated September 5, 2017 Registration No. 333-219724 Representatives: Citigroup Global Markets Inc. 3▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements▇▇ New York, NY 10013 Fax: None. Items specified pursuant to Section 5(e)(iii(▇▇▇) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions▇▇▇-▇▇▇▇ Attention: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.General Counsel
Appears in 1 contract
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is Underwriters are acting solely as a principal and not in the agent or fiduciary capacity of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of arm’s length contractual counterparty to the Company with respect to the offering of Securities contemplated hereby (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person. Additionally, neither the Representatives nor any other Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company with respect thereto. 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 process leading thereto benefit of the Underwriters and shall not be on behalf of the Company. This Agreement supersedes all prior agreements and understandings (irrespective of whether such Underwriter has advised written or is currently advising oral) between the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty with respect to the Company, in connection with such transaction or the process leading theretosubject matter hereof. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among between the Company and the several Underwriters. INTERNATIONAL BUSINESS MACHINES CORPORATION Very truly yours, HECLA MINING COMPANY By: /s/ R▇▇▇▇▇▇ ▇▇▇ . ▇▇▇▇ Name: R▇▇▇▇▇▇ ▇▇▇ . ▇▇▇▇ Title: Senior Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on as of the date specified in Schedule I heretofirst above written. For themselves and the other several Underwriters▇▇▇▇▇▇▇ LYNCH, if anyPIERCE, named in Schedule II to the foregoing Agreement. BNP PARIBAS SECURITIES CORP. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE BANK SECURITIES INC. UBS SECURITIES LLC. ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED By: DEUTSCHE BANK SECURITIES INC. By: /s/J/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: J▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Director Authorized Signatory SCOTIA CAPITAL (USA) INC. By: /s/ EA. ▇▇▇▇▇▇ ▇▇▇▇ Name: EA. ▇▇▇▇▇▇ ▇▇▇▇ Title: Director Underwriting Agreement dated July 25, 2012 Registration No. 333-168333 Representatives: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. UBS Securities LLC Title, Purchase Price Authorized Signatory For themselves and Description of Securities: Title: 1.875% Notes due 2022 Principal amount: $1,000,000,000 Purchase price: 97.998% of the principal amount of Notes plus accrued interest from July 30, 2012 Offering price: 98.398% of the principal amount of Notes plus accrued interest from July 30, 2012 Interest: Payable on February 1 and August 1, commencing on February 1, 2013. Sinking fund provisions: None. Redemption provisions: The Notes are redeemable other several Underwriters named in whole or in part, at the option of the Company, as described in the Final Prospectus. Closing Date, Time and Location: July 30, 2012, 10:00 A.M., at the offices of Cravath, Swaine & MSchedule I. ▇▇▇▇▇▇▇ LLPLynch, Worldwide PlazaPierce, 8▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 12,400,000 Scotia Capital (USA) Inc. 7,750,000 BMO Capital Markets Corp. 5,425,000 RBC Capital Markets Corporation 5,425,000 A first Issuer Free Writing Prospectus, dated September 3, 2008 A second Issuer Free Writing Prospectus, dated September 3, 2008 Price per share to the public: $5.00 Offering Size: 31,000,000 shares Over-allotment Option: 4,000,000 shares, if the Underwriters exercise their option to purchase additional shares in full Closing Date: September 12, 2008 September , 2008 ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deleted.
2. Each ▇▇▇▇ As Representatives of the several Underwriters agrees that it Ladies and Gentlemen: This letter is being delivered to you in connection with the proposed Underwriting Agreement (the “Underwriting Agreement”), between Hecla Mining Company, a Delaware corporation (the “Company”), and you as Representatives of a group of Underwriters named therein, relating to an underwritten public offering of shares of common stock, par value $0.25 per share, of the Company. In order to induce you and the other Underwriters to enter into the Underwriting Agreement, the undersigned will not not, without the prior written consent of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc., offer, sell, contract to sell, pledge or deliver otherwise dispose of (or enter into any transaction which is designed to, or might reasonably be expected to, result in the disposition (whether by actual disposition or effective economic disposition due to cash settlement or otherwise) by the undersigned or any affiliate of the Securitiesundersigned not including the Company), directly or indirectly, including the filing (or distribute participation in the filing) of a registration statement with the Securities and Exchange Commission in respect of, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder with respect to, any shares of capital stock of the Company or any securities convertible into, or exercisable or exchangeable for such capital stock, or publicly announce an intention to effect any such transaction, for a period beginning on the date hereof and continuing for 90 days after the date of the Underwriting Agreement (the “Lock-Up Period”), other than (i) capital stock disposed of as bona fide gifts approved by ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and Scotia Capital (USA) Inc.; provided that the donee agrees in writing to be bound by the terms of this letter, (ii) capital stock that (when aggregated with all other shares of capital stock disposed of by executive officers and directors of the Company during such period) does not exceed 75,000 shares of capital stock, (iii) capital stock contributed by the Company to its 401(k), retirement, and employee benefit plans in the ordinary course of business and reallocation of funds within such accounts by the participants in or trustees or administrators of such plans, and (iv) capital stock disposed of under the Rule 10b5-1 trading plans or programs in existence of the date hereof. If for any reason the Underwriting Agreement shall be terminated prior to the Closing Date (as defined in the Underwriting Agreement), the agreement set forth above shall likewise be terminated. Yours very truly, [SIGNATURE] [NAME AND ADDRESS] Hecla Limited Hecla Alaska LLC ▇▇▇▇▇ Trading, Inc. Hecla Admiralty Company The selling restrictions are stated under the caption “Underwriting” in the Final Prospectus. ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated 4 World Financial Center New York, New York 10080 Scotia Capital (USA) Inc. One Liberty Plaza ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as representatives of the several Underwriters Ladies and Gentlemen: We have acted as special counsel to Hecla Mining Company, a Delaware corporation (the “Company”), in connection with the Company’s Registration Statement on Form S-3ASR (No. 333-145919) filed with the Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”), including the information deemed to be a part of any such registration statement at the time of effectiveness pursuant to Rule 430A under the 1933 Act (the “Registration Statement”), and the prospectus dated September 7, 2007, together with the preliminary prospectus supplement or dated September 2, 2008 (together with the Issuer Free Writing Prospectuses identified on Schedule II of the Underwriting Agreement and the pricing press release filed on Form 8-K on [date], the “Disclosure Package”) and the final prospectus or any other offering material relating supplement dated September 8, 2008 forming part of the Registration Statement (together with the Disclosure Package, the “Prospectus”), covering (i) the sale by the Company of shares of common stock, par value $0.25 per share (the “Common Stock”), of the Company and the purchase by each of the Underwriters named in Schedule I to the Underwriting Agreement (as defined below) (collectively, the “Underwriters”) of the respective numbers of shares of Common Stock set forth in Schedule I to the Underwriting Agreement and (ii) the grant by the Company to the Underwriters, acting severally and not jointly, of the option described in Section 2(b) of the Underwriting Agreement to purchase up to 4,000,000 additional shares of Common Stock to cover over-allotments, if any, pursuant to the Underwriting Agreement dated September 8, 2008 (the “Underwriting Agreement”) among the Company and you, as representatives of the Underwriters. This opinion is furnished to you pursuant to Section 6(b) of the Underwriting Agreement. Capitalized terms, unless otherwise defined herein, shall have the meanings ascribed to such terms in the Underwriting Agreement. In this connection, we have examined originals, or copies certified or otherwise identified to our satisfaction, of: (1) the Underwriting Agreement; (2) the Registration Statement; (3) the Prospectus; (4) the Company Agreements (as defined below); (5) resolutions adopted by the Board of Directors of the Company and the Executive Committee of the Board of Directors of the Company; (6) a specimen certificate evidencing the Securities; (7) the Certificate of Incorporation and By-laws of the Company; (8) a certificate of the Secretary of the State of Delaware as to the existence of the Company; and (9) such corporate and other records, certificates, documents and other papers as we deemed it necessary to examine for the purpose of this opinion. Based on the foregoing, in reliance upon the assumptions set forth herein and subject to the qualifications herein contained, we are of the opinion that:
(i) The Company is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and to enter into and perform its obligations under the Underwriting Agreement.
(iii) The Company is duly qualified as a foreign corporation to transact business and is in good standing in each domestic jurisdiction in which such qualification is required, whether by reason of the ownership or from leasing of property or the conduct of business, except where the failure so to qualify or to be in good standing would not result in a Material Adverse Effect.
(iv) The authorized, issued and outstanding capital stock of the Company is as set forth in the Prospectus (except for subsequent issuances, if any, pursuant to the Underwriting Agreement or pursuant to reservations, agreements or employee benefit plans referred to in the Disclosure Package and the Final Prospectus or pursuant to the exercise of convertible securities or options referred to in the Disclosure Package or the Final Prospectus); the shares of issued and outstanding capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; and none of the outstanding shares of capital stock of the Company was issued in violation of the preemptive or other similar rights of any security holder of the Company.
(v) Each domestic Significant Subsidiary has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except under circumstances that willwhere the failure so to qualify or to be in good standing would not result in a Material Adverse Effect; to the best of our knowledge all of the issued and outstanding capital stock of each domestic Significant Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and, to the best of our knowledge, is owned by the Underwriters’ knowledge Company, directly or through subsidiaries, free and beliefclear of any security interest, result mortgage, pledge, lien, encumbrance, claim or equity except as provided in compliance with that certain Amended and Restated Credit Agreement dated as of April 16, 2008 by and among the applicable laws Company, The Bank of Nova Scotia, as administrative agent for the lenders, and the various financial institutions and other persons from time to time parties thereto and the related security agreement and pledge agreement, as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus; none of the outstanding shares of capital stock of any domestic Significant Subsidiary was issued in violation of the preemptive or similar rights of any security holder of such domestic Significant Subsidiary.
(vi) To the best of our knowledge, there are no material contracts, indentures, mortgages, loan agreements, notes, leases or other instruments (collectively, the “Company Agreements”) required to be described or referred to in the Registration Statement or the Prospectus or to be filed as exhibits to the Registration Statement, other than those described or referred to therein or filed or incorporated by reference as exhibits thereto, and the descriptions thereof or references thereto in the Prospectus are correct in all material respects as to legal matters.
(vii) We are not aware of any authorization, approval, consent or order of any agency, governmental authority or court (other than under the 1933 Act, the 1933 Act Regulations, the 1934 Act, the 1934 Act Regulations and the rules and regulations of the New York Stock Exchange, or as may be required under the securities or blue sky laws of the various states or foreign jurisdictions as to which we are not required to, and which will not impose any obligations on does not, express an opinion), that is required for the due authorization, issuance, sale or delivery of the Securities.
(viii) The Underwriting Agreement has been duly authorized, executed and delivered by the Company. .
(ix) The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (eachSecurities have been duly and validly authorized, a “Relevant Member State”), each Underwriter represents and agrees that with effect from upon issuance and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer delivery of the Securities in accordance with the Underwriting Agreement, the Securities will be validly issued and will be fully paid and non-assessable and no holder of such Securities is or will be subject to personal liability by reason of being such a holder.
(x) The Securities conform in all material respects as to legal matters to the public description thereof in that Relevant Member State other than:the Registration Statement and the Prospectus.
(axi) The issuance of the Securities is not subject to preemptive or other similar rights of any legal entity which is a qualified investor as defined security holder of the Company under applicable law, the Certificate of Incorporation or By-Laws of the Company, or, to our knowledge, any contract or agreement of the Company.
(xii) The statements made in the Prospectus Directive;under the caption “Description of Capital Stock – Common Stock,” to the extent they constitute matters of law or legal conclusions, have been reviewed by us and fairly present the information disclosed therein in all material respects.
(bxiii) To the best of our knowledge, there are no statutes or regulations that are required to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined be described in the Prospectus Directivethat are not described as required.
(xiv) The Registration Statement, including any Rule 462(b) Registration Statement, has been declared effective under the 1933 Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, to the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement or any Rule 462(b) Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted or are pending or threatened by the Commission.
(xv) The Registration Statement (including the Rule 430A Information and any Rule 462(b) Registration Statement, as applicable) and the Prospectus, and each amendment or supplement thereto (except for the financial statements, financial schedules and other financial data included therein or omitted therefrom, as to which we are not required to, and do not, express an opinion), as permitted under of their respective effective or issue dates, complied as to form in all material respects to the Prospectus Directive, subject to obtaining the prior consent requirements of the representatives for any such offer; or1933 Act and the 1933 Act Regulations.
(cxvi) omitted.
(xvii) The form of certificate used to evidence the Common Stock complies in all material respects with all applicable statutory requirements, with any other circumstances falling within Article 3(2) applicable requirements of the Prospectus Directive, provided that no such offer Certificate of Incorporation and By-laws of the Securities shall require Company and the requirements of the New York Stock Exchange.
(xviii) To the best of our knowledge, except as disclosed in the Registration Statement, the Disclosure Package and the Final Prospectus there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company or any Underwriter subsidiary is a party, or to publish a prospectus pursuant to Article 3 which the property of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to Company or any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.subsid
Appears in 1 contract
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. Very truly yours, INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ R▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Del Bene Name: R▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Del Bene Title: Vice President and Treasurer IBM Debt Offering The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS SECURITIES CORP. CITIGROUP GLOBAL MARKETS INC. BARCLAYS BANK PLC DEUTSCHE BANK AG, LONDON B▇▇▇▇▇ ▇▇▇▇▇▇▇ L▇▇▇▇ INTERNATIONAL MITSUBISHI UFJ SECURITIES INC. UBS SECURITIES LLC. INTERNATIONAL PLC STANDARD CHARTERED BANK By: BARCLAYS BANK PLC By: /s/ L▇▇▇▇▇ ▇▇▇▇▇ Name: L▇▇▇▇▇ ▇▇▇▇▇ Title: Authorized Attorney By: DEUTSCHE BANK SECURITIES INC. AG, LONDON BRANCH By: /s/J/s/ S▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: S▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Senior Counsel By: /s/ R▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: R▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Legal Counsel By: /s/ J▇▇▇ ▇▇▇▇▇▇▇▇ Name: J▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Director By: /s/ EAn-c▇▇ ▇▇▇▇-▇▇▇▇▇▇ Name: An-c▇▇ ▇▇▇▇-▇▇▇▇▇▇ Title: Authorized Signatory By: /s/ P▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Name: P▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Title: Global Lead, CM-FIG Underwriting Agreement dated November 14, 2013 Registration No. 333-190160 Representatives: Barclays Bank PLC 7▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Deutsche Bank AG, London Branch Winchester House 1 ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Name▇▇▇ Fax Number: E+▇▇ (▇▇▇) ▇▇▇ ▇▇▇▇ Attn: Syndicate Desk M▇▇▇▇▇▇ L▇▇▇▇ International 2 ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ London EC1A 1HQ Title: Director Underwriting Agreement dated July 25, 2012 Registration No. 333-168333 Representatives: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. UBS Securities LLC Title, Purchase Price and Description of Securities: Title: 1.8752.750% Notes due 2022 2020 Principal amount: $1,000,000,000 £750,000,000 Purchase price: 97.99899.583% of the principal amount of the Notes plus accrued interest from July 30November 21, 2012 2013 Offering price: 98.39899.883% of the principal amount of the Notes plus accrued interest from July 30November 21, 2012 2013 Interest: Payable on February 1 and August 1December 21 of each year, commencing on February 1December 21, 2013. 2014 Sinking fund provisions: None. Redemption provisions: The Notes of each series are redeemable in whole or in part, at the option of the Company, in whole upon the occurrence of certain tax events, or in whole or in part at a make whole amount, each as described set forth in the Final ProspectusProspectus Supplement dated the date of this Agreement. Closing Date, Time and Location: July 30November 21, 20122013, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇ LLP, Worldwide PlazaW▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 8▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: European Economic Area In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/732▇▇▇/EU▇▇/▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 A▇▇ ▇▇▇▇ ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
3. The last sentence of Section 7(b) shall be deleted and replaced by the following text: The Company acknowledges that the statements set forth in the last paragraph of the cover page of the Preliminary Final Prospectus and the Final Prospectus, the sentence “The underwriters have informed IBM that they intend to make a market in the Notes but are under no obligation to do so and such market making may be terminated at any time without notice.” and the statements contained in the fourth and eighth and ninth paragraphs and the first, third and fourth sentences of the tenth paragraph under the caption “Underwriting” in the Preliminary Final Prospectus and the Final Prospectus constitute the only information furnished in writing by or on behalf of the several Underwriters for inclusion in the Basic Prospectus, any Preliminary Final Prospectus, the Disclosure Package, any Issuer Free Writing Prospectus or the Final Prospectus, and you, as the Representatives, confirm that such statements are correct.
4. The following shall be an additional condition added to Section 5: The Company shall have furnished to the Representatives the opinion of Cravath, Swaine & M▇▇▇▇ LLP, counsel to the Company, dated the Closing Date to the effect that the statements under the caption “United States Taxation” in the Disclosure Package and the Final Prospectus constitute a fair presentation of the material U.S. federal income tax consequences to holders of Securities.
5. The following shall be a new Section 15:
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. Very truly yours, INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ RS▇▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇ III Name: RS▇▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇ III Title: Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS J. ▇. ▇▇▇▇▇▇ SECURITIES CORP. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE BANK SECURITIES INC. UBS SECURITIES LLC. LLC By: DEUTSCHE BANK SECURITIES INC. By: /s/J/s/ R▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: JR▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: Managing Director ByVice President Underwriting Agreement dated October 31, 2014 Registration No. 333-190160 Representatives: /s/ EJ. ▇. ▇▇▇▇▇▇ ▇▇▇▇ Name: E▇▇▇▇▇ ▇▇▇▇ Title: Director Underwriting Agreement dated July 25, 2012 Registration No. 333-168333 Representatives: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. UBS Securities LLC Title, Purchase Price and Description of Securities: Title: 1.875% Floating Rate Notes due 2022 2021 Principal amount: $1,000,000,000 1,100,000,000 Purchase price: 97.99899.750% of the principal amount of Notes plus accrued interest from July 30November 6, 2012 2014 Offering price: 98.398100.000% of the principal amount of Notes plus accrued interest from July 30November 6, 2012 2014 Interest: Payable on February 1 6, May 6, August 6, and August 1November 6 of each year, commencing on February 16, 2013. 2015 Sinking fund provisions: None. Redemption provisions: The Notes are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectusmay not be redeemed prior to maturity. Closing Date, Time and Location: July 30November 6, 20122014, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇ LLP, Worldwide PlazaW▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 8▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters The Underwriter agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ Underwriter’s knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters Underwriter also agree agrees to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each the Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each The Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 A▇▇ ▇▇▇▇ ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. Very truly yours, INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ R▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇▇ Name: R▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇▇▇▇ Title: Vice President and Treasurer IBM Debt Offering The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS SECURITIES CORP. CITIGROUP GLOBAL MARKETS INC. BARCLAYS BANK PLC DEUTSCHE BANK SECURITIES INCAG, LONDON BRANCH ▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO. UBS SECURITIES LLC. LLC SOCIÉTÉ GÉNÉRALE UNICREDIT BANK AG COMMERZBANK AG ING BANK N.V. BELGIAN BRANCH STANDARD CHARTERED BANK By: DEUTSCHE BARCLAYS BANK SECURITIES INC. PLC By: /s/J/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Name: J▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Title: Managing Director By: DEUTSCHE BANK AG, LONDON BRANCH By: /s/ E▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Managing Director By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Title: Managing Director By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO. LLC By: /s/ ▇▇▇▇ ▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇▇ Title: Vice President By: SOCIÉTÉ GÉNÉRALE By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Managing Director By: UNICREDIT BANK AG By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇▇▇ ▇▇▇▇ Name: E▇▇▇▇▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇▇▇ ▇▇▇▇ Title: Authorized Representative By: COMMERZBANK AG By: /s/ ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇/▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇/▇▇▇▇▇▇▇ Title: Syndikus/Syndikus By: ING BANK N.V. BELGIAN BRANCH By: /s/ ▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇ ▇▇▇▇▇/▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Global Head of Debt Syndicate/Managing Director By: STANDARD CHARTERED BANK By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Title: Head of Debt Capital Markets, Europe Underwriting Agreement dated July 25May 16, 2012 2017 Registration No. 333-168333 212685 Representatives: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Barclays Bank PLC 5 The North Colonnade Canary Wharf London E14 4BB United Kingdom Fax: +▇▇(▇)▇▇ ▇▇▇▇-▇▇▇▇ Attention: Debt Syndicate Deutsche Bank Securities Inc. UBS Securities AG, London Branch Winchester House ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ Fax: +▇▇ (▇▇▇) ▇▇▇ ▇▇▇▇ Attn: Syndicate Desk ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. LLC ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ New York, NY 10282-2198 Attention: Registration Department Société Générale ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ London E1 6EG United Kingdom Tel: +▇▇▇▇ ▇▇▇▇ ▇▇▇▇ Fax: +4420 ▇▇▇▇ ▇▇▇▇ Attention: Syndicate Desk GLFI/SYN/CAP/BOND UniCredit Bank AG ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ 81925 Munich, Germany Attention: DCM Legal Title, Purchase Price and Description of Securities: Title: 1.8750.950% Notes due 2022 2025 1.500% Notes due 2029 Principal amount: $2025 Notes: €1,000,000,000 2029 Notes: €1,000,000,000 Purchase price: 97.9982025 Notes: 99.506% of the principal amount of Notes the Securities plus accrued interest from July 30and including May 23, 2012 Offering price2017 2029 Notes: 98.39899.368% of the principal amount of Notes the Securities plus accrued interest from July 30and including May 23, 2012 2017 Offering price: 2025 Notes: 99.831% of the principal amount of the Securities plus accrued interest from and including May 23, 2017 2029 Notes: 99.793% of the principal amount of the Securities plus accrued interest from and including May 23, 2017 Interest: 2025 Notes Payable on February 1 and August 1May 23 of each year, commencing on February 1May 23, 2013. 2018 2029 Notes Payable on May 23 of each year, commencing on May 23, 2018 Sinking fund provisions: None. Redemption provisions: The Notes Securities are redeemable in whole or in part, at the option of the Company, in whole upon the occurrence of certain tax events, or in whole or in part at a make whole amount, each as described set forth in the Final ProspectusProspectus Supplement dated the date of this Agreement. Closing Date, Time and Location: July 30May 23, 20122017, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇▇ LLP, Worldwide Plaza, 8▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. INTERNATIONAL BUSINESS MACHINES CORPORATION Very truly yours, IBM CREDIT LLC By: /s/ R▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Name: R▇▇▇▇▇ ▇▇▇ ▇▇▇▇ [ ] Title: Vice President and Treasurer [ ] IBM Debt Offering The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS SECURITIES CORP. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE BANK SECURITIES INC. UBS SECURITIES LLC. [ ] [ ] By: DEUTSCHE BANK SECURITIES INC. [ ] By: /s/J▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: J▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Director By: /s/ E▇▇▇▇▇ ▇▇▇▇ [ ] By: Name: E▇▇▇▇▇ ▇▇▇▇ Title: Director Underwriting Agreement dated July 25[ ], 2012 20[ ] Registration No. 333-168333 333-[ ] Representatives: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. UBS Securities LLC [ ] Attention: [ ] Attention: Title, Purchase Price and Description of Securities: Title: 1.875[ ]% Notes due 2022 20[ ] Principal amount: $1,000,000,000 [ ] Purchase price: 97.998[ ]% of the principal amount of Notes the Securities plus accrued interest from July 30and including [ ], 2012 20[ ] Offering price: 98.398[ ]% of the principal amount of Notes the Securities plus accrued interest from July 30and including [ ], 2012 20[ ] Interest: Payable on February 1 and August 1[ ] of each year, commencing on February 1[ ], 2013. 20[ ] Sinking fund provisions: None. [Redemption provisions: The Notes are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectus. [ ]] Closing Date, Time and Location: July 30[ ], 201220[ ], 10:00 A.M.[ ] [a.m. / p.m.], at the offices of Cravath, Swaine & M▇▇▇▇▇ LLP, Worldwide Plaza, 8▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii5(f)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e5(f): None. Other Terms:
1. [ ] Statements covered by Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.7(b): [ ]
Appears in 1 contract
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. INTERNATIONAL BUSINESS MACHINES CORPORATION By: /s/ R▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Name: R▇▇▇▇▇ ▇▇▇ ▇▇▇▇ Title: Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS SECURITIES CORP. CITIGROUP GLOBAL MARKETS BARCLAYS CAPITAL INC. DEUTSCHE BANK HSBC SECURITIES (USA) INC. UBS SECURITIES LLCJ.▇. By: DEUTSCHE BANK SECURITIES INC. By: /s/J▇▇▇▇ ▇▇▇▇▇▇▇▇ NameSECURITIES LLC RBS SECURITIES INC. By: J▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Director HSBC SECURITIES (USA) INC By: /s/ E▇▇▇ ▇▇▇ . ▇▇▇▇ Name: E▇▇▇ ▇▇▇ . ▇▇▇▇ Title: Director Vice President Underwriting Agreement dated July 25May 8, 2012 Registration No. 333-168333 Representatives: BNP Paribas Barclays Capital Inc. HSBC Securities Corp. Citigroup Global Markets (USA) Inc. Deutsche Bank J.▇. ▇▇▇▇▇▇ Securities LLC RBS Securities Inc. UBS Securities LLC Title, Purchase Price and Description of Securities: :
A. Title: 1.8750.750% Notes due 2022 2015 Principal amount: $1,000,000,000 900,000,000 Purchase price: 97.99899.684% of the principal amount of Notes plus accrued interest from July 30May 11, 2012 Offering price: 98.39899.834% of the principal amount of Notes plus accrued interest from July 30May 11, 2012 Interest: Payable on February 1 May 11 and August 1November 11, commencing on February 1November 11, 20132012.
B. Title: 1.875% Notes due 2019 Principal amount: $600,000,000 Purchase price: 99.500% of the principal amount of Notes plus accrued interest from May 11, 2012 Offering price: 99.850% of the principal amount of Notes plus accrued interest from May 11, 2012 Interest: Payable on May 15 and November 15, commencing on November 15, 2012. Sinking fund provisions: None. Redemption provisions: The Notes of each series are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectus. Closing Date, Time and Location: July 30May 11, 2012, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇ LLP, Worldwide Plaza, 8▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. Delayed Delivery Arrangements: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:.
1. Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)
Arm’s Length Transaction. The Company acknowledges and agrees that (i) the purchase and sale of the Securities pursuant to this Agreement is an arm’s-length commercial transaction between the Company, on the one hand, and the several Underwriters, on the other, (ii) in connection therewith and with the process leading to such transaction each Underwriter is acting solely as a principal and not the agent or fiduciary of the Company, (iii) no Underwriter has assumed an advisory of fiduciary responsibility in favor of the Company with respect to the offering contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has advised or is currently advising the Company on other matters) or any other obligation to the Company except the obligations expressly set forth in this Agreement and (iv) the Company has consulted its own legal and financial advisors to the extent it deemed appropriate. The Company agrees that it will not claim that the Underwriters, or any of them, has rendered advisory services of any nature or respect, or owes a fiduciary or similar duty to the Company, in connection with such transaction or the process leading thereto. If the foregoing is in accordance with your understanding of our agreement, please sign and return to us the enclosed duplicate hereof, whereupon this letter and your acceptance shall represent a binding agreement among the Company and the several Underwriters. INTERNATIONAL BUSINESS MACHINES CORPORATION Very truly yours, By: /s/ R▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Name: R▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ Title: Vice President and Treasurer The foregoing Agreement is hereby confirmed and accepted on the date specified in Schedule I hereto. For themselves and the other several Underwriters, if any, named in Schedule II to the foregoing Agreement. BNP PARIBAS SECURITIES CORP. CITIGROUP GLOBAL MARKETS INC. DEUTSCHE BANK HSBC SECURITIES (USA) INC. UBS SECURITIES LLC. By: DEUTSCHE BANK SECURITIES INC. By: /s/J▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: J▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Managing Director By: /s/ E▇▇▇▇▇ ▇▇▇▇ Name: E▇▇▇▇▇ ▇▇▇▇ Title: Director Underwriting Agreement dated July 25, 2012 Registration No. 333-168333 Representatives: BNP Paribas Securities Corp. Citigroup Global Markets Inc. Deutsche Bank Securities Inc. UBS Securities LLC Title, Purchase Price and Description of Securities: Title: 1.875% Notes due 2022 Principal amount: $1,000,000,000 Purchase price: 97.998% of the principal amount of Notes plus accrued interest from July 30, 2012 Offering price: 98.398% of the principal amount of Notes plus accrued interest from July 30, 2012 Interest: Payable on February 1 and August 1, commencing on February 1, 2013. Sinking fund provisions: None. Redemption provisions: The Notes are redeemable in whole or in part, at the option of the Company, as described in the Final Prospectus. Closing Date, Time and Location: July 30, 2012, 10:00 A.M., at the offices of Cravath, Swaine & M▇▇▇▇ LLP, Worldwide Plaza, 8▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED By: HSBC SECURITIES (USA) INC. /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇ Title: Senior Vice President Underwriting Agreement dated November 3, 2009 Registration No. 333-145104 Representatives: Citigroup Global Markets Inc. HSBC Securities (USA) Inc. ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇& Co. Incorporated Title, Purchase Price and Description of Securities: Title: 2.100% Notes due 2013 Floating Rate Notes due 2011 Principal amount: 2013 Notes - $1,250,000,000 Floating Rate Notes - $750,000,000 Purchase price: 2013 Notes - 99.759% of the principal amount of 2013 Notes plus accrued interest from November 6, 2009 Floating Rate Notes - 99.900% of the principal amount of Floating Rate Notes plus accrued interest from November 6, 2009 Offering price: 2013 Notes - 99.919% of the principal amount of 2013 Notes plus accrued interest from November 6, 2009 Floating Rate Notes - 100.000% of the principal amount of Floating Rate Notes plus accrued interest from November 6, 2009 Interest: 2013 Notes Payable on May 6 and November 6 of each year, commencing on May 6, 2010. Delayed Delivery ArrangementsFloating Rate Notes - Payable on February 4, May 4, August 4 and November 4 of each year, commencing February 4, 2010. Sinking fund provisions: None. Items specified pursuant to Section 5(e)(iii) to be covered by the letter from PricewaterhouseCoopers LLP delivered pursuant to Section 5(e): None. Other Terms:
1. Section 4(B)(a) - (h) are deleted.
2. Each of the Underwriters agrees that it will not offer, sell, or deliver any of the Securities, directly or indirectly, or distribute the prospectus supplement or prospectus or any other offering material relating to the Securities, in or from any jurisdiction except under circumstances that will, to the best of the Underwriters’ knowledge and belief, result in compliance with the applicable laws and regulations and which will not impose any obligations on the Company. The Underwriters also agree to abide by the following offering restrictions: In relation to each Member State of the European Economic Area which has implemented the Prospectus Directive (each, a “Relevant Member State”), each Underwriter represents and agrees that with effect from and including the date on which the Prospectus Directive is implemented in that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make an offer of the Securities to the public in that Relevant Member State other than:
(a) to any legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) to fewer than 100 or, if the Relevant Member State has implemented the relevant provision of the 2010 PD Amending Directive, 150, natural or legal persons (other than qualified investors as defined in the Prospectus Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the representatives for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive, provided that no such offer of the Securities shall require the Company or any Underwriter to publish a prospectus pursuant to Article 3 of the Prospectus Directive. For the purposes of this provision, the expression an “offer of Securities to the public” in relation to any Securities in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Securities, as the same may be varied in that Member State by any measure implementing the Prospectus Directive in that Member State, the expression “Prospectus Directive” means Directive 2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive, to the extent implemented in the Relevant Member State), and includes any relevant implementing measure in the Relevant Member State and the expression “2010 PD Amending Directive” means Directive 2010/73/EU. Each Underwriter represents and agrees that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will only communicate or cause to be communicated an invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 ( the “FSMA”)) received by it in connection with the issue or sale of the Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Company; and
(b) it has complied with, and will comply with, all applicable provisions of the FSMA with respect to anything done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
Appears in 1 contract
Sources: Underwriting Agreement (International Business Machines Corp)