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Ex-1.1
FORM OF UNDERWRITING AGREEMENT
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Exhibit 1.1
AMDOCS LIMITED
ORDINARY SHARES
(POUND STERLING 0.01 PAR VALUE)
------------------------
UNDERWRITING AGREEMENT
_________, 1999
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
Banc of America Securities LLC
BancBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
BT Alex. ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇ Brothers Inc.
▇▇ ▇▇▇▇▇ Securities Corporation
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Amdocs Limited, a Guernsey corporation (the "Company"), proposes, subject
to the terms and conditions stated herein, to issue and sell to the Underwriters
named in Schedule I hereto (the "Underwriters") an aggregate of........ Ordinary
Shares, pound sterling 0.01 par value ("Stock") of the Company and, at the
election of the Underwriters, up to ........... additional............ shares of
Stock and the shareholders of the Company named in Schedule II hereto (the
"Selling Stockholders") propose, subject to the terms and conditions stated
herein, to sell to the Underwriters an aggregate of........shares and, at the
election of the Underwriters, up to........ additional shares of Stock. The
aggregate of........shares to be sold by the Company and the Selling
Stockholders is herein called the "Firm Shares" and the aggregate of ........
additional shares to be sold by the Company and the Selling Stockholders is
herein called the "Optional Shares". The Firm Shares and the Optional
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Shares that the Underwriters elect to purchase pursuant to Section 2 hereof are
herein collectively called the "Shares".
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters and the Selling Stockholders that:
(i) A registration statement on Form F-1 (File No. 333-75151)
(the "Initial Registration Statement") in respect of the Shares has
been filed with the Securities and Exchange Commission (the
"Commission"); the Initial Registration Statement and any
post-effective amendment thereto, each in the form heretofore
delivered to you, and, excluding exhibits thereto, to you for each
of the other Underwriters, have been or will be declared effective
by the Commission in such form; other than a registration statement,
if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement"), to be filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended (the "Act"), which will
become effective upon filing, no other document with respect to the
Initial Registration Statement has heretofore been filed with the
Commission; and no stop order suspending the effectiveness of the
Initial Registration Statement, any post-effective amendment thereto
or the Rule 462(b) Registration Statement, if any, has been issued
and no proceeding for that purpose has been initiated or threatened
by the Commission (any preliminary prospectus included in the
Initial Registration Statement or filed with the Commission pursuant
to Rule 424(a) of the rules and regulations of the Act is
hereinafter called a "Preliminary Prospectus"; the various parts of
the Initial Registration Statement and the Rule 462(b) Registration
Statement, if any, including all exhibits thereto and including the
information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act in accordance with
Section 5(a) hereof and deemed by virtue of Rule 430A under the Act
to be part of the Initial Registration Statement at the time it was
declared effective, each as amended at the time such part of the
Initial Registration Statement became effective or such part of the
Rule 462(b) Registration Statement, if any, became or hereafter
becomes effective, are hereinafter collectively called the
"Registration Statement"; and such final prospectus, in the form
first filed pursuant to Rule 424(b) under the Act, is hereinafter
called the "Prospectus");
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and each
Preliminary Prospectus, at the time of filing thereof, conformed in
all material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder, and did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in
writing to the
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Company by an Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for
use therein or by the Selling Stockholders expressly for use in the
preparation of the answers therein to Item 7 of Form F-1;
(iii) The Registration Statement conforms, and the Prospectus
and any further amendments or supplements to the Registration
Statement or the Prospectus will conform, in all material respects
to the requirements of the Act and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any amendment
thereto and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto, contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the
Company by an Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly for
use therein or by any Selling Stockholder expressly for use in the
preparation of the answers therein to Item 7 of Form F-1;
(iv) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included in the Prospectus any material loss or interference with
its business from fire, explosion, flood or other calamity, whether
or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as
of which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock, net
current assets, shareholders' equity or long-term debt of the
Company or any of its subsidiaries or any material adverse change,
or any development involving a prospective material adverse change,
in or affecting the general affairs, management, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in the
Prospectus;
(v) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable
title to all personal property owned by them, in each case free and
clear of all liens, encumbrances and defects except such as are
described in the Prospectus or such as do not materially affect the
value of such property and do not interfere with the use made and
proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease
by the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its
subsidiaries;
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(vi) The Company has been duly incorporated and is validly
existing as a company under the laws of Guernsey, with power and
authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus; the Company has filed
its most recent statutory annual return, has paid all fees due
thereon and there are no outstanding unsatisfied judgements
registered in Guernsey against the Company and there are no
outstanding applications, orders or resolutions for the winding-up
of the Company; the Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each other jurisdiction in which it owns or leases
properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability
by reason of the failure to be so qualified in any such
jurisdiction; and each subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing (where applicable) under the laws of its jurisdiction of
incorporation;
(vii) The Company has an authorized capitalization as set
forth in the Prospectus, and all of the issued shares of capital
stock of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and conform to the
description of the Stock contained in the Prospectus; and all of the
issued shares of capital stock of each subsidiary of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and (except for directors' qualifying shares and
except as set forth in the Registration Statement) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims; all of the shares of issued and
outstanding capital stock of the Company (including the Shares) have
been duly listed and admitted for trading on the New York Stock
Exchange ("NYSE"); the holders of outstanding shares of capital
stock of the Company are not entitled to preemptive or other rights
to acquire the Shares; there are no outstanding securities
convertible into or exchangeable for, or warrants, rights or options
to purchase from the Company, or obligations of the Company to
issue, the Stock or any other class of capital stock of the Company
(except as set forth in the Prospectus under "Management" and
"Principal and Selling Shareholders" ); and there are no
restrictions on subsequent transfers of the Shares under the laws of
Guernsey and of the United States;
(viii) The unissued Shares to be issued and sold by the
Company to the Underwriters hereunder have been duly and validly
authorized and, when issued and delivered against payment therefor
as provided herein, will be duly and validly issued and fully paid
and non-assessable and will conform to the description of the Stock
contained in the Prospectus;
(ix) All dividends and other distributions declared and
payable on the shares of capital stock of the Company may under the
current laws and regulations
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of Guernsey be paid in U.S. dollars that may be freely transferred
out of Guernsey, and all such dividends and other distributions will
not be subject to withholding or other taxes under the current laws
and regulations of Guernsey and are otherwise free and clear of any
other tax, withholding or deduction in Guernsey and without the
necessity of obtaining any Governmental Authorization in Guernsey;
(x) The issue and sale of the Shares to be sold by the Company
hereunder and the compliance by the Company with all of the
provisions of this Agreement and the consummation of the
transactions herein contemplated will not conflict with or result in
a breach or violation of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject, nor
will such action result in any violation of the provisions of the
Memorandum of Association and the Articles of Association of the
Company or any statute or any order, rule or regulation of any court
or governmental agency or body (hereinafter referred to as a
"Governmental Agency") having jurisdiction over the Company or any
of its subsidiaries or any of their properties; and no consent,
approval, authorization, order, registration or qualification of or
with any such Governmental Agency (hereinafter referred to as
"Governmental Authorizations") is required for the issue and sale of
the Shares or the consummation by the Company of the transactions
contemplated by this Agreement, except (A) the registration under
the Act of the Shares, (B) such Governmental Authorizations as have
been duly obtained and are in full force and effect and copies of
which have been furnished to you and (C) such Governmental
Authorizations as may be required under state securities or Blue Sky
laws or any laws of jurisdictions outside Guernsey and the United
States in connection with the purchase and distribution of the
Shares by or for the account of the Underwriters;
(xi) Neither the Company nor any of its subsidiaries is in
violation of its constituent documents or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement lease or other agreement or instrument to
which it is a party or by which it or any of its properties may be
bound;
(xii) Neither the Company nor any of its subsidiaries has
taken, directly or indirectly, any action which was designed to or
which has constituted or which might reasonably be expected to cause
or result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares;
(xiii) The statements set forth in the Prospectus under the
caption "Description of Share Capital", insofar as they purport to
constitute a summary of the
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terms of the Stock, under the caption "Taxation of the Company" and
under the caption "Underwriting", insofar as they purport to
describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair;
(xiv) Other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company or
any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its subsidiaries,
would individually or in the aggregate have a material adverse
effect on the current or future consolidated financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries; and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by any Governmental
Agency or threatened by others;
(xv) The Company is not and, after giving effect to the
offering and sale of the Shares, will not be an "investment
company", as such term is defined in the Investment Company Act of
1940, as amended (the "Investment Company Act");
(xvi) The Company and each of its subsidiaries have all
licenses, franchises, permits, authorizations, approvals and orders
and other concessions of and from all Governmental Agencies that are
necessary to own or lease their other properties and conduct their
businesses as described in the Prospectus;
(xvii)The Company is not a Passive Foreign Investment Company
("PFIC") within the meaning of Section 1296 of the United States
Internal Revenue Code of 1986, as amended;
(xviii) The Company and its subsidiaries are in compliance in
all material respects with all conditions and requirements
stipulated by the instruments of approval granted to it with respect
to the "Approved Enterprise" status of any of the Company's Israeli
subsidiary's facilities as well as with respect to the other tax
benefits received by the Company's Israeli subsidiary as set forth
under the caption "Taxation of the Company" in the Prospectus and by
Israeli laws and regulations relating to such "Approved Enterprise"
status and the aforementioned other tax benefits received by the
Company's Israeli subsidiary; and neither the Company nor the
Israeli subsidiary has received any notice of any proceeding or
investigation relating to revocation or modification of any
"Approved Enterprise" status granted with respect to any of the
Israeli subsidiary's facilities;
(xix) The Company qualifies as an "exempt company" in Guernsey
and is in compliance with all conditions and requirements, whether
imposed by applicable law or otherwise, to the extent necessary to
maintain its status as an exempt company;
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(xx) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent
public accountants as required by the Act and the rules and
regulations of the Commission thereunder;
(xxi) Neither the Company nor any of its affiliates does
business with the government of Cuba within the meaning of Section
517.075, Florida Statutes; and
(xxii)The Company has reviewed its operations and those of its
subsidiaries and any third parties with which the Company or any of
its subsidiaries has a material relationship to evaluate the extent
to which the business or operations of the Company or any of its
subsidiaries will be affected by the Year 2000 Problem. As a result
of such review, the Company has no reason to believe, and does not
believe, that the Year 2000 Problem will have a material adverse
effect on the general affairs, management, the current or future
consolidated financial position, business prospects, shareholders'
equity or results of operations of the Company and its subsidiaries
or result in any material loss or interference with the Company's
business or operations. The "Year 2000 Problem" as used herein means
any significant risk that computer hardware or software used in the
receipt, transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the operation of
mechanical or electrical systems of any kind will not, in the case
of dates or time periods occurring after December 31, 1999, function
at least as effectively as in the case of dates or time periods
occurring prior to January 1, 2000.
(b) Each of the Selling Stockholders severally represents and warrants
to, and agrees with, each of the Underwriters and the Company that:
(i) All Governmental Authorizations required for the sale and
delivery of the Shares to be sold by such Selling Stockholder
hereunder and for the execution and delivery by such Selling
Stockholder of this Agreement, the Power of Attorney and the Custody
Agreement hereinafter referred to, and for the sale and delivery of
the Shares to be sold by such Selling Stockholder hereunder have
been obtained; and such Selling Stockholder has full right, power
and authority to enter into this Agreement, the Power of Attorney
and Custody Agreement, and to sell, assign, transfer and deliver the
Shares to be sold by such Selling Stockholder hereunder;
(ii) The sale of the Shares to be sold by such Selling
Stockholder hereunder and the compliance by such Selling Stockholder
with all of the provisions of this Agreement, the Power of Attorney
and Custody Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result in
a breach or violation of any of the terms or provisions of, or
constitute a default under, any statute, indenture, mortgage, deed
of trust, loan
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agreement or other agreement or instrument to which such Selling
Stockholder is a party or by which such Selling Stockholder is
bound, or to which any of the property or assets of such Selling
Stockholder is subject, nor will such action result in any violation
of the provisions of the constituent documents of such Selling
Stockholder if such Selling Stockholder is a corporation, the
partnership agreement of such Selling Stockholder if such Selling
Stockholder is a partnership, or any statute or any order, rule or
regulation of any Governmental Agency having jurisdiction over such
Selling Stockholder or the property of such Selling Stock holder;
(iii) Such Selling Stockholder has, and immediately prior to
each Time of Delivery (as defined in Section 4 hereof) such Selling
Stockholder will have, good and valid title to the Shares to be sold
by such Selling Stockholder hereunder, free and clear of all liens,
encumbrances, equities or claims; and, upon delivery of such Shares
and payment therefor pursuant hereto and thereto, good and valid
title to such Shares, free and clear of all liens, encumbrances,
equities or claims, will pass to the several Underwriters;
(iv) Such Selling Stockholder has not taken and will not take,
directly or indirectly, any action which is designed to or which has
constituted or which might reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares;
(v) To the extent that any statements made in the Registration
Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto are made in reliance upon and in
conformity with written information furnished to the Company by such
Selling Stockholder expressly for use therein, such Preliminary
Prospectus and the Registration Statement did, and the Prospectus
and any further amendments or supplements to the Registration
Statement and the Prospectus, when they become effective or are
filed with the Commission, as the case may be, will conform in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder and will not contain any
untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the
statements therein not misleading;
(vi) In order to document the Underwriters' compliance with
the reporting and withholding provisions of the Tax Equity and
Fiscal Responsibility Act of 1982 with respect to the transactions
herein contemplated, such Selling Stockholder will deliver to you
prior to or at the First Time of Delivery (as hereinafter defined) a
properly completed and executed United States Treasury Department
Form W-9 (or other applicable form or statement specified by
Treasury Department regulations in lieu thereof);
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(vii) Certificates in negotiable form representing all of the
Shares to be sold by such Selling Stockholder hereunder have been
placed in custody under a Custody Agreement (the "Custody
Agreement"), in the form heretofore furnished to you, duly executed
and delivered by such Selling Stockholder to [ ], as
custodian (the "Custodian"), and such Selling Stockholder has duly
executed and delivered a Power of Attorney (the "Power of
Attorney"), in the form heretofore furnished to you, appointing the
persons indicated in Schedule II hereto, and each of them, as such
Selling Stockholder's attorneys-in-fact (the "Attorneys-in-Fact")
with authority to execute and deliver this Agreement on behalf of
such Selling Stockholder, to determine the purchase price to be paid
by the Underwriters to the Selling Stockholders as provided in
Section 2 hereof, to authorize the delivery of the Shares to be sold
by such Selling Stockholder hereunder and otherwise to act on behalf
of such Selling Stockholder in connection with the transactions
contemplated by this Agreement and the Custody Agreement; and
(viii)The Shares represented by the certificates held in
custody for such Selling Stockholder under the Custody Agreement are
subject to the interests of the Underwriters hereunder; the
arrangements made by such Selling Stockholder for such custody, and
the appointment by such Selling Stockholder of the Attorneys-in-Fact
by the Power of Attorney, are to that extent irrevocable; the
obligations of the Selling Stockholders hereunder shall not be
terminated by operation of law, whether by the death or incapacity
of any individual Selling Stockholder or, in the case of an estate
or trust, by the death or incapacity of any executor or trustee or
the termination of such estate or trust, or in the case of a
partnership or corporation, by the dissolution of such partnership
or corporation, or by the occurrence of any other event; if any
individual Selling Stockholder or any such executor or trustee
should die or become incapacitated, or if any such estate or trust
should be terminated, or if any such partnership or corporation
should be dissolved, or if any other such event should occur, before
the delivery of the Shares hereunder, certificates representing the
Shares shall be delivered by or on behalf of the Selling
Stockholders in accordance with the terms and conditions of this
Agreement and of the Custody Agreements; and actions taken by the
Attorneys-in-Fact pursuant to the Powers of Attorney shall be as
valid as if such death, incapacity, termination, dissolution or
other event had not occurred, regardless of whether or not the
Custodian, the Attorneys-in-Fact, or any of them, shall have
received notice of such death, incapacity, termination, dissolution
or other event.
2. Subject to the terms and conditions herein set forth, (a) the Company
and each of the Selling Stockholders agree, severally and not jointly, to sell
to each of the Underwriters, and each of the Underwriters agrees, severally and
not jointly, to purchase from the Company and each of the Selling Stockholders,
at a purchase price per Share of $......................, the number of Firm
Shares (to be adjusted by you so as to eliminate fractional shares) determined
by multiplying the
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aggregate number of Firm Shares to be sold by the Company and each of the
Selling Stockholders as set forth opposite their respective names in Schedule II
hereto by a fraction, the numerator of which is the aggregate number of Firm
Shares to be purchased by such Underwriter as set forth opposite the name of
such Underwriter in Schedule I hereto and the denominator of which is the
aggregate number of Firm Shares to be purchased by all of the Underwriters from
the Company and all of the Selling Stockholders hereunder and (b) in the event
and to the extent that the Underwriters shall exercise the election to purchase
Optional Shares as provided below, the Company and each of the Selling
Stockholders agree, severally and not jointly, to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from the Company and each of the Selling Stockholders, at the purchase
price per Share set forth in clause (a) of this Section 2, that portion of the
number of Optional Shares as to which such election shall have been exercised
(to be adjusted by you so as to eliminate fractional shares) determined by
multiplying such number of Optional Shares by a fraction the numerator of which
is the maximum number of Optional Shares which such Underwriter is entitled to
purchase as set forth opposite the name of such Underwriter in Schedule I hereto
and the denominator of which is the maximum number of Optional Shares that all
of the Underwriters are entitled to purchase hereunder.
The Company and the Selling Stockholders, as and to the extent indicated
in Schedule II hereto, hereby grant, severally and not jointly, to the
Underwriters the right to purchase at their election up to _______ Optional
Shares, at the purchase price per Share set forth in the paragraph above, for
the sole purpose of covering sales of shares in excess of the number of Firm
Shares. Any such election to purchase Optional Shares shall be made in
proportion to the number of Optional Shares to be sold by the Company and each
Selling Stockholder. Any such election to purchase Optional Shares may be
exercised by written notice from you to the Company and the Attorneys-in-Fact,
given within a period of 30 calendar days after the date of this Agreement and
setting forth the aggregate number of Optional Shares to be purchased and the
date on which such Optional Shares are to be delivered, as determined by you but
in no event earlier than the First Time of Delivery (as defined in Section 4
hereof) or, unless you and the Attorneys-in-Fact otherwise agree in writing,
earlier than two or later than ten business days after the date of such notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. may request upon at least forty-eight hours'
notice to the Company and the Selling Stockholders and the Custodian prior to a
Time of Delivery (as defined below) (the "Notification Time"), shall be
delivered by or on behalf of the Company and the Selling Stockholders to
▇▇▇▇▇▇▇, Sachs & Co., for the account of such Underwriter, against payment by or
on behalf of such Underwriter of the purchase price therefor by wire transfer of
Federal (same-day) funds to the account specified by the Company or the Selling
Stockholders, as the case may be, to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. at least forty-eight
hours in advance. The Company and the Selling Stockholders will cause the
certificates representing the
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Shares to be made available for checking and packaging at least twenty-four
hours prior to the Time of Delivery (as defined below) with respect thereto at
the office of ▇▇▇▇▇▇▇, Sachs & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(the "Designated Office").
The time and date of such delivery and payment shall be, with respect to
the Firm Shares, 9:30 a.m., New York City time, on ________, 1999 or such other
time and date as ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and the Company may agree upon in writing,
and, with respect to the Optional Shares, 9:30 a.m., New York City time, on the
date specified by ▇▇▇▇▇▇▇, Sachs & Co. in the written notice given by ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co. of the Underwriters' election to purchase such Optional Shares, or
such other time and date as ▇▇▇▇▇▇▇, Sachs & Co. and the Company may agree upon
in writing. Such time and date for delivery of the Firm Shares is herein called
the "First Time of Delivery", such time and date for delivery of the Optional
Shares, if not the First Time of Delivery, is herein called the "Second Time of
Delivery", and each such time and date for delivery is herein called a "Time of
Delivery".
(b) The documents to be delivered at each Time of Delivery by or on behalf
of the parties hereto pursuant to Section 7 hereof, including the cross-receipt
for the Shares and any additional documents requested by the Underwriters
pursuant to Section 7(n) hereof, will be delivered at the offices of Skadden,
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the
"Closing Location"), and the Shares will be delivered as specified in Section
4(a) above, all at such Time of Delivery. A meeting will be held at the Closing
Location at 4:30 p.m., New York City time, on the New York Business Day next
preceding such Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
5. (a) The Company agrees with each of the Underwriters:
(i) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) under the Act not later
than the Commission's close of business on the second business day
following the execution and delivery of this Agreement, or, if
applicable, such earlier time as may be required by Rule 430A(a)(3)
under the Act; to make no further amendment or any supplement to the
Registration Statement or Prospectus prior to the last Time of
Delivery which shall be disapproved by you promptly after reasonable
notice thereof; to advise you, promptly after it receives notice
thereof, of the time when any amendment to the Registration
Statement has been filed or becomes effective or any supplement to
the Prospectus or any amended Prospectus has been filed and to
furnish you copies thereof; to file promptly all reports required to
be filed by the Company with the Commission pursuant to Section
13(a), 13(c) or 15(d) of the Exchange Act subsequent to the date of
the Prospectus and for so long as the delivery of a
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prospectus is required in connection with the offering or sale of
the Shares; to advise you, promptly after it receives notice
thereof, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any Preliminary
Prospectus or prospectus, of the suspension of the qualification of
the Shares for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such purpose, or
of any request by the Commission for the amending or supplementing
of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any stop order or
of any order preventing or suspending the use of any Preliminary
Prospectus or prospectus or suspending any such qualification,
promptly to use its best efforts to obtain the withdrawal of such
order;
(ii) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under
the securities laws of such jurisdictions as you may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Shares, provided that
in connection therewith the Company shall not be required to qualify
as a foreign corporation or to file a general consent to service of
process in any jurisdiction;
(iii) Prior to 10:00 A.M., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from
time to time, to furnish the Underwriters with copies of the
Prospectus in New York City in such quantities as you may reasonably
request, and, if the delivery of a prospectus is required at any
time prior to the expiration of nine months after the time of issue
of the Prospectus in connection with the offering or sale of the
Shares and if at such time any events shall have occurred as a
result of which the Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made when such
Prospectus is delivered, not misleading, or, if for any other reason
it shall be necessary during such period to amend or supplement the
Prospectus in order to comply with the Act, to notify you and upon
your request to prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as you
may from time to time reasonably request of an amended Prospectus or
a supplement to the Prospectus which will correct such statement or
omission or effect such compliance, and in case any Underwriter is
required to deliver a prospectus in connection with sales of any of
the Shares at any time nine months or more after the time of issue
of the Prospectus, upon your request but at the expense of such
Underwriter, to prepare and deliver to such Underwriter as many
copies as you may request of an amended or supplemented Prospectus
complying with Section 10(a)(3) of the Act;
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(iv) To make generally available to its securityholders as
soon as practicable, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined
in Rule 158(c) under the Act), an earnings statement of the Company
and its subsidiaries (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Company, Rule
158);
(v) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder, any securities of the
Company that are substantially similar to the Shares, including but
not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or
any such substantially similar securities (other than pursuant to
employee stock option plans existing on the date of this Agreement),
without your prior written consent;
(vi) To furnish to its shareholders as soon as practicable
after the end of each fiscal year an annual report (including a
balance sheet and statements of income, shareholders' equity and
cash flows of the Company and its consolidated subsidiaries
certified by independent public accountants and prepared in
conformity with generally accepted accounting principles in the U.S.
("GAAP")) and to make available to its shareholders, as soon as
practicable after the end of each of the first three quarters of
each fiscal year prepared in accordance with GAAP (beginning with
the fiscal quarter ending after the effective date of the
Registration Statement), consolidated summary financial information
of the Company and its subsidiaries for such quarter in reasonable
detail;
(vii) During a period of five years from the effective date of
the Registration Statement, to furnish to you copies of all reports
or other communications (financial or other) furnished to
shareholders, and to deliver to you (i) as soon as they are
available, copies of any reports and financial statements furnished
to or filed with the Commission or any securities exchange on which
any class of securities of the Company is listed; and (ii) such
additional information concerning the business and financial
condition of the Company as you may from time to time reasonably
request (such financial statements to be on a consolidated basis to
the extent the accounts of the Company and its subsidiaries are
consolidated in reports furnished to its shareholders generally or
to the Commission);
(viii)To use the net proceeds received by it from the sale of
the Shares pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
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(ix) Not to (and to cause its subsidiaries not to) take,
directly or indirectly, any action which is designed to or which
constitutes or which might reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the
Company or facilitate the sale or resale or the Shares;
(x) To use its best efforts to list the Shares on the NYSE;
(xi) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 P.M., Washington,
D.C. time, on the date of this Agreement, and the Company shall at
the time of filing either pay to the Commission the filing fee for
the Rule 462(b) Registration Statement or give irrevocable
instructions for the payment of such fee pursuant to Rule 111(b)
under the Act; and
(xii) To file with the Commission such information on Form
20-F as may be required by Rule 463 under the Act.
(b) Each of the Selling Stockholders agrees with each of the
Underwriters:
(i) During the period beginning from the date hereof and
continuing to and including the date 90 days after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise
dispose of, except as provided hereunder, any securities of the
Company that are substantially similar to the Shares, including but
not limited to any securities that are convertible into or
exchangeable for, or that represent the right to receive, Stock or
any such substantially similar securities (other than pursuant to
employee stock option plans existing on, or upon the conversion or
exchange of convertible or exchangeable securities outstanding as
of, the date of this Agreement), without your prior written consent;
and
(ii) Not to (and to cause its affiliates not to) take,
directly or indirectly, any action which is designed to or which
constitutes or which might reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the
Company or facilitate the sale or resale of the Shares.
6. The Company covenants and agrees with the several Underwriters that it
will pay or cause to be paid the following: (i) the fees, disbursements and
expenses of the Company's counsel and accountants in connection with the
registration of the Shares under the Act and all other expenses in connection
with the preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and supplements thereto
and the mailing and delivering of copies thereof to the Underwriters and
dealers; (ii) the cost of printing or producing any Agreement among
Underwriters, this Agreement, the Blue Sky Memorandum, closing documents
(including compilations thereof) and any other documents in connection with the
offering, purchase, sale and delivery of the Shares; (iii) all expenses in
connection with the
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qualification of the Shares for offering and sale under state securities laws as
provided in Section 5(a)(ii) hereof, including the fees and disbursements of
counsel for the Underwriters in connection with such qualification and in
connection with the Blue Sky survey; (iv) all fees and expenses in connection
with listing the Shares on the NYSE; (v) the cost of preparing stock
certificates; (vi) the cost and charges of any transfer agent or registrar; and
(vii) all other costs and expenses incident to the performance of its
obligations hereunder which are not otherwise specifically provided for in this
Section. The Selling Stockholders will pay or cause to be paid all costs and
expenses incident to the performance of such Selling Stockholder's obligations
hereunder which are not otherwise specifically provided for in this Section,
including (1) any fees and expenses of counsel for such Selling Stockholder, (2)
such Selling Stockholder's pro rata share of the fees and expenses of the
Attorneys-in-Fact and the Custodian and (3) all expenses and taxes incident to
the sale and delivery of the Shares to be sold by such Selling Stockholder to
the Underwriters hereunder. In connection with clause (3) of the preceding
sentence, ▇▇▇▇▇▇▇, Sachs & Co. agrees to pay New York State stock transfer tax,
and each Selling Stockholder agrees to reimburse ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. for
associated carrying costs if such tax payment is not rebated on the day of
payment and for any portion of such tax payment not rebated. It is understood,
however, that, except as provided in this Section, and Sections 8 and 11 hereof,
the Underwriters will pay all of their own costs and expenses, including the
fees of their counsel, stock transfer taxes on resale of any of the Shares by
them, and any advertising expenses connected with any offers they may make.
7. The obligations of the Underwriters hereunder, as to the Shares to be
delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and of the Selling Stockholders herein are, at and as of such Time
of Delivery, true and correct, the condition that the Company and the Selling
Stockholders shall have performed all of its and their obligations hereunder
theretofore to be performed, and the following additional conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 5(a)(i) hereof; if the Company has elected
to rely upon Rule 462(b), the Rule 462(b) Registration Statement
shall have become effective by 10:00 P.M., Washington, D.C. time, on
the date of this Agreement; no stop order suspending the
effectiveness of the Registration Statement or any part thereof
shall have been issued and no proceeding for that purpose shall have
been initiated or threatened by the Commission; and all requests for
additional information on the part of the Commission shall have
been complied with to your reasonable satisfaction;
(b) Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the
Underwriters, shall have furnished to you such written opinion or
opinions, dated such Time of Delivery, in form and substance
satisfactory to you, and such counsel shall have received such
papers and information as they may reasonably request to enable them
to pass upon such matters;
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(c) Reboul, MacMurray, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & Kristol, counsel for
the Company, shall have furnished to you their written opinion (a
draft of such opinion is attached as Annex II(b) hereto), dated such
Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each jurisdiction in the United States in which it
owns or leases properties or conducts any business so as to require
such qualification, or is subject to no material liability or
disability by reason of failure to be so qualified in any such
jurisdiction (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect
of matters of fact upon certificates of officers of the Company,
provided that such counsel shall state that they believe that both
you and they are justified in relying upon such opinions and
certificates);
(ii) Each U.S. subsidiary of the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation; and
all of the issued shares of capital stock of each such subsidiary
have been duly and validly authorized and issued, are fully paid and
non-assessable, and (except for directors' qualifying shares) are
owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims (such counsel being entitled
to rely in respect of the opinion in this clause upon opinions of
local counsel and in respect of matters of fact upon certificates of
officers of the Company or its subsidiaries, provided that such
counsel shall state that they believe that both you and they are
justified in relying upon such opinions and certificates);
(iii) This Agreement has been duly executed and delivered by
the Company;
(iv) The statements in the Prospectus under "Comparison of
United States and Guernsey Corporate Law" to the extent such
statements relate to matters of United States law or regulation or
to the provisions of documents therein described, are accurate,
complete and fair in all material respects, and nothing has been
omitted from such statements which would make the same misleading in
any material respect;
(v) None of the Company's U.S. subsidiaries are in violation
of their respective constituent documents or, to the best of such
counsel's knowledge, in default in the performance or observance of
any material obligation, agreement, covenant or condition contained
in any indenture, mortgage, deed of trust, loan
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agreement, lease or other agreement or instrument to which any of
them is a party or by which any of them or any of their properties
may be bound;
(vi) The statements set forth in the Prospectus under the
captions "Underwriting" and "Taxation of Holders of Ordinary
Shares", insofar as they purport to describe provisions of United
States federal or New York law and documents referred to therein,
are accurate, complete and fair;
(vii) Under the laws of the State of New York relating to
personal jurisdiction, the Company has, pursuant to Section 14 of
this Agreement, validly and irrevocably submitted to the personal
jurisdiction of any state or federal court located in the Borough of
Manhattan, The City of New York, New York (each a "New York Court")
in any action arising out of or relating to this Agreement or the
transactions contemplated hereby, has validly and irrevocably waived
any objection to the venue of a proceeding in any such court, and
has validly and irrevocably appointed the Authorized Agent (as
defined herein) as its authorized agent for the purpose described in
Section 14 hereof; and service of process effected on such agent in
the manner set forth in Section 14 hereof will be effective insofar
as the law of the State of New York is concerned to confer valid
personal jurisdiction over the Company;
(viii)To the best of such counsel's knowledge and other than
as set forth in the Prospectus, there are no legal or governmental
proceedings pending in any United States federal or state court to
which the Company or any of its subsidiaries is a party or of which
any property of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate be reasonably
likely to have a material adverse effect on the current or future
consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries; and, to the best of
such counsel's knowledge, no such proceedings are threatened or
contemplated by any Governmental Agency or threatened by others;
(ix) The issue and sale of the Shares being delivered at such
Time of Delivery to be sold by the Company and the compliance by the
Company with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not
conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company or any of the
Company's U.S. subsidiaries is a party or by which the Company or
any of the Company's U.S. subsidiaries is bound or to which any of
the property or assets of the Company or any of such subsidiaries is
subject, nor will such action result in any violation of any statute
or any order, rule or regulation known to such counsel of any United
States Federal or New York
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Governmental Agency having jurisdiction over the Company or any of
its subsidiaries or any of their properties;
(x) No Governmental Authorization of the United States or the
State of New York is required for the issue and sale of the Shares
or the consummation by the Company of the transactions contemplated
by this Agreement, except the registration under the Act of the
Shares, and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of the
Shares by the Underwriters or which have been obtained and are in
full force and effect;
(xi) The Company is not an "investment company", as such term
is defined in the Investment Company Act; and
(xii) The Registration Statement and the Prospectus and any
further amendments and supplements thereto made by the Company prior
to such Time of Delivery (other than the financial statements and
related schedules therein, as to which such counsel need express no
opinion) comply as to form in all material respects with the
requirements of the Act and the rules and regulations thereunder;
although they do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, except for those referred
to in the opinion in subsections (iv) and (vi) of this Section 7(c),
they have no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the
Company prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading
or that, as of its date, the Prospectus or any further amendment or
supplement thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading or
that, as of such Time of Delivery, either the Registration Statement
or the Prospectus or any further amendment or supplement thereto
made by the Company prior to such Time of Delivery (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; and they do not know of any
amendment to the Registration Statement required to be filed or of
any contracts or other documents of a character required to be filed
as an exhibit to the Registration
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Statement or required to be described in the Registration Statement
or the Prospectus which are not filed or described as required;
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction outside the United States;
(d) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, counsel for the Company, shall have
furnished to you their written opinion (a draft of such opinion is
attached as Annex II(c) hereto), dated such Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a company under the laws of Guernsey, with power and
authority (corporate and other) to own its properties and conduct
its business as described in the Prospectus; and the Company has
filed its most recent statutory annual return, has paid all fees due
thereon and there are no outstanding unsatisfied judgements
registered in Guernsey against the Company and there are no
outstanding applications, orders or resolutions for the winding-up
of the Company ;
(ii) The Company has an authorized capitalization as set forth
in the Prospectus, and all of the issued shares of capital stock of
the Company (including the Shares being delivered at such Time of
Delivery) have been duly and validly authorized and issued and are
fully paid and non-assessable; the holders of outstanding shares of
capital stock of the Company are not entitled to preemptive or other
rights to acquire the Shares to be purchased from the Selling
Stockholders under this Agreement which have not been complied with;
there are no restrictions on subsequent transfers of the Shares; and
the Shares conform to the description of the Stock contained in the
Prospectus;
(iii) To the best of such counsel's knowledge and other than
as set forth in the Prospectus, there are no legal or governmental
proceedings pending in Guernsey to which the Company or any of its
subsidiaries is a party or of which any property of the Company or
any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a material adverse effect on
the current or future consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries;
and, to the best of such counsel's knowledge, no such proceedings
are threatened or contemplated by any Governmental Agency or
threatened by others;
(iv) This Agreement has been duly authorized by the Company;
(v) The issue and sale of the Shares being delivered at such
Time of Delivery by the Company, compliance by the Company with all
of the provisions of
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this Agreement and the consummation of the transactions herein
contemplated will not result in any violation of the provisions of
the Memorandum of Association and Articles of Association of the
Company or any Guernsey statute or any order, rule or regulation
known to such counsel of any Governmental Agency in Guernsey having
jurisdiction over the Company or any of its properties;
(vi) No Governmental Authorization of or with any Governmental
Agency is required in Guernsey for the issue and sale of the Shares
by the Company or the consummation by the Company of the
transactions contemplated by this Agreement, except any such
consents, approvals, authorizations or orders which have been duly
obtained and are in full force and effect;
(vii) The statements in the Prospectus under "Comparison of
United States and Guernsey Corporate Law" to the extent such
statements relate to matters of Guernsey law or regulation or to the
provisions of documents therein described, are accurate, complete
and fair in all material respects, and nothing has been omitted from
such statements which would make the same misleading in any material
respect;
(viii)Insofar as matters of Guernsey law are concerned, the
Registration Statement and the filing of the Registration Statement
with the Commission have been duly authorized by and on behalf of
the Company; and the Registration Statement has been duly executed
pursuant to such authorization by and on behalf of the Company;
(ix) The Company's agreement to the choice of law provisions
set forth in Section 14 hereof will be recognized by the courts of
Guernsey; the Company can ▇▇▇ and be sued in its own name under the
laws of Guernsey; the irrevocable submission of the Company to the
exclusive jurisdiction of a New York Court, the waiver by the
Company of any objection to the venue of a proceeding of a New York
Court and the agreement of the Company that this Agreement shall be
governed by and construed in accordance with the laws of the State
of New York are legal, valid and binding; service of process
effected in the manner set forth in Section 14 hereof will be
effective, insofar as the law of Guernsey is concerned, to confer
valid personal jurisdiction over the Company; and judgment obtained
in a New York Court arising out of or in relation to the obligations
of the Company under this Agreement would be enforceable against the
Company in the courts of Guernsey;
(x) The indemnification and contribution provisions set forth
in Section 8 hereof do not contravene any statute or any express
statement of the public policy or laws of Guernsey;
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(xi) All dividends and other distributions declared and
payable on the shares of capital stock of the Company may be paid in
U.S. dollars under the current laws and regulations of Guernsey and
may be freely transferred out of Guernsey, and all such dividends
and other distributions will not be subject to withholding or other
taxes under the current laws and regulations of Guernsey and are
otherwise free and clear of any other tax, withholding or deduction
in Guernsey and without the necessity of obtaining any Governmental
Authorization in Guernsey; and
(xii) The statements set forth in the Prospectus under the
caption "Description of Share Capital", insofar as they purport to
constitute a summary of the terms of the Stock, and under the
captions "Taxation of the Company" and "Taxation of Holders of
Ordinary Shares", insofar as they purport to describe the provisions
of Guernsey law and documents referred to therein, are accurate,
complete and fair;
In giving such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than Guernsey;
(e) Meitar, Liquornik, Geva & Co., special Israeli counsel for
the Company, shall have furnished to you their written opinion (a
draft of such opinion is attached as Annex II(d) hereto), dated such
Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) The Company's Israeli subsidiary has been duly
incorporated and is validly existing under the laws of Israel, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Prospectus; and all of the
issued shares of capital stock of such subsidiary have been duly and
validly authorized and issued, are fully paid and non-assessable,
and are owned directly or indirectly by the Company, free and clear
of all liens, encumbrances, equities or claims;
(ii) Any buildings held under lease by such subsidiary are
held by it under valid, subsisting and enforceable leases with such
exceptions as are not material and do not interfere with the use
made and proposed to be made of such property and buildings by such
subsidiary (in giving the opinion in this clause, such counsel may
state that no examination of record titles for the purpose of such
opinion has been made, and that they are relying upon a general
review of the titles of such subsidiary, upon opinions of counsel to
the lessors of such property and, in respect of matters of fact,
upon certificates of officers of such subsidiary, provided that such
counsel shall state that they believe that both you and they are
justified in relying upon such opinions, abstracts, reports,
policies and certificates);
(iii) Other than as set forth in the Prospectus, to the best
of such counsel's knowledge, there are no legal or governmental
proceedings pending to
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which the Company's Israeli subsidiary is a party or of which any
property of the Company's Israeli subsidiary is the subject which,
if determined adversely to such subsidiary, would individually or in
the aggregate have a material adverse effect on the current or
future consolidated financial position, shareholders' equity or
results of operations of such subsidiary; and, to the best of such
counsel's knowledge, no such proceedings are threatened or
contemplated by any Governmental Agency or threatened by others;
(iv) The issue and sale of the Shares, compliance by the
Company with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not
conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument known to such counsel to which the Company's Israeli
subsidiary is a party or by which the Company's Israeli subsidiary
is bound or to which any of the property or assets of the Company or
such subsidiary is subject, nor will such action result in any
violation of the provisions of the constituent documents of such
subsidiary or any statute or any order, rule or regulation known to
such counsel of any Israeli Governmental Agency having jurisdiction
over the Company's Israeli subsidiary or any of its properties;
(v) No Governmental Authorization of or with any Governmental
Agency is required in Israel for the sale of the Shares by the
Company or the consummation by the Company of the transactions
contemplated by this Agreement, except any such consents, approvals,
authorizations or orders which have been duly obtained and are in
full force and effect;
(vi) The Company's Israeli subsidiary has all licenses and
concessions of and from all Governmental Agencies that are necessary
to own or lease its properties and conduct its businesses as
described in the Prospectus; and the Company's Israeli subsidiary
has all franchises, permits, authorizations, approvals and orders
and other licenses and concessions of and from all Governmental
Agencies that are necessary to own or lease its other properties and
conduct its businesses as described in the Prospectus except for
such licenses, franchises, permits, authorizations, approvals and
orders the failure to obtain which will not have a material adverse
effect on the financial condition or results of operations of the
Company and its subsidiaries;
(vii) To the best of such counsel's knowledge, the Company's
Israeli subsidiary is not in violation of its constituent documents
or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease
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or other agreement or instrument to which it is a party or by which
it or any of its properties may be bound;
(viii)The statements set forth in the Prospectus under the
caption "Taxation of the Company", insofar as they purport to
describe the provisions of Israeli law and documents referred to
therein, are accurate, fair and complete in all material respects;
(ix) To the best knowledge of such counsel, the Company and
its Israeli subsidiary are in compliance in all material respects
with all conditions and requirements stipulated by the instruments
of approval granted to it with respect to the "Approved Enterprise"
status of any of the Company's Israeli subsidiary's facilities as
well as with respect to the other tax benefits received by the
Company's Israeli subsidiary as set forth under the caption
"Taxation of the Company" in the Prospectus and by Israeli laws and
regulations relating to such "Approved Enterprise" status and the
aforementioned other tax benefits received by the Company's Israeli
subsidiary; and, to the best knowledge of such counsel, neither the
Company nor the Israeli subsidiary has received any notice of any
proceeding or investigation relating to revocation or modification
of any "Approved Enterprise" status granted with respect to any of
the Israeli subsidiary's facilities; and
(x) Although they do not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in
the Registration Statement or the Prospectus, except for those
referred to in the opinion in subsection (viii) of this Section
7(e), they have no reason to believe that, as of its effective date,
the Registration Statement or any further amendment thereto made by
the Company prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading
or that, as of its date, the Prospectus or any further amendment or
supplement thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading or
that, as of such Time of Delivery, either the Registration Statement
or the Prospectus or any further amendment or supplement thereto
made by the Company prior to such Time of Delivery (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading;
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In giving such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than Israel;
(f) [ ], special U.K. counsel for the Company, shall
have furnished to you their written opinion (a draft of such opinion
is attached as Annex II(e) hereto), dated such Time of Delivery, in
form and substance satisfactory to you, to the effect that:
(i) The Company's U.K. subsidiaries have been duly
incorporated and are validly existing as corporations in good
standing under the laws of the U.K., with power and authority
(corporate and other) to own their properties and conduct their
business as described in the Prospectus; and all of the issued
shares of capital stock of each such subsidiary have been duly and
validly authorized and issued, are fully paid and non-assessable,
and (except for directors' qualifying shares) are owned directly or
indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims;
(ii) Having searched its computer records, such counsel is not
currently acting in relation to any pending legal or governmental
proceedings to which the Company's U.K. subsidiaries are a party or
of which any property of the Company's U.K. subsidiaries are the
subject which, if determined adversely to such subsidiary, would
individually or in the aggregate have a material adverse effect on
the current or future consolidated financial position, shareholders'
equity or results of operations of such subsidiary; and, the chief
executive officers of each of the Company's U.K. subsidiaries have
certified to such counsel that, to the best of their knowledge, no
such proceedings are threatened or pending;
(iii) The issue and sale of the Shares, compliance by the
Company with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not
conflict with or result in a breach or violation of any of the terms
or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument reviewed by such counsel to which the Company's U.K.
subsidiaries are a party or by which the Company's U.K. subsidiaries
are bound or to which any of the property or assets of the Company
or such subsidiaries are subject, nor will such action result in any
violation of the provisions of the constituent documents of such
subsidiaries or any statute or any order, rule or regulation known
to such counsel of any U.K. Governmental Agency having jurisdiction
over the Company's U.K. subsidiaries or any of their properties;
and, the chief executive officers of each of the Company's U.K.
subsidiaries have certified to such counsel that, to the best of
their knowledge, there are no such material agreements (other than
those which have been reviewed by such counsel);
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(iv) No Governmental Authorization of or with any Governmental
Agency is required in the U.K. for the sale of the Shares by the
Company or the consummation by the Company of the transactions
contemplated by this Agreement, except any such consents, approvals,
authorizations or orders which have been duly obtained and are in
full force and effect;
(v) The Company's U.K. subsidiaries have all powers and
licenses necessary to own or lease its properties and conduct its
businesses as described in the Prospectus; and the Company's U.K.
subsidiaries have all franchises, permits, authorizations, approvals
and orders and other licenses and concessions of and from all
Governmental Agencies that are necessary to own or lease its other
properties and conduct its businesses as described in the Prospectus
except for such licenses, franchises, permits, authorizations,
approvals and orders the failure to obtain which will not have a
material adverse effect on the financial condition or results of
operations of the Company and its subsidiaries; and
(vi) The Company's U.K. subsidiaries are not in violation of
its constituent documents or in default in the performance or
observance of any material obligation, agreement, covenant or
condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties may be bound;
In giving such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the U.K.;
(g) The respective counsel for each of the Selling
Stockholders, as indicated in Schedule ll hereto, each shall have
furnished to you their written opinion (drafts of such opinions are
attached as Annex ll(f) hereto) with respect to each of the Selling
Stockholders for whom they are acting as counsel, dated such Time of
Delivery, in form and substance satisfactory to you, to the effect
that:
(i) A Power of Attorney and a Custody Agreement have been duly
executed and delivered by such Selling Stockholder and constitute
valid and binding agreements of such Selling Stockholder in
accordance with their terms;
(ii) This Agreement has been duly executed and delivered by or
on behalf of such Selling Stockholder; and the sale of the Shares to
be sold by such Selling Stockholder hereunder and the compliance by
such Selling Stockholder with all of the provisions of this
Agreement, the Power of Attorney and the Custody Agreement and the
consummation of the transactions herein and therein contemplated
will not conflict with or result in a breach or violation of any
terms or provisions of, or constitute a default under, any statute,
indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which such
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Selling Stockholder is a party or by which such Selling Stockholder
is bound, or to which any of the property or assets of such Selling
Stockholder is subject, nor will such action result in any violation
of the provisions of the constituent documents of such Selling
Stockholder if such Selling Stockholder is a corporation, the
partnership agreement of such Selling Stockholder if such Selling
Stockholder is a partnership, or any order, rule or regulation known
to such counsel of any court or governmental agency or body having
jurisdiction over such selling Stockholder or the property of such
Selling Stockholder;
(iii) No Governmental Authorization of or with any
Governmental Agency in the jurisdiction of incorporation or
organization of such Selling Stockholder is required for the
consummation of the transactions contemplated by this Agreement in
connection with the Shares to be sold by such Selling Stockholder
hereunder except such consents, approvals, authorizations or orders
which have been duly obtained and are in full force and effect, such
as have been obtained under the Act and such as may be required
under state securities or Blue Sky laws in connection with the
purchase and distribution of such Shares by the Underwriters;
(iv) Immediately prior to such Time of Delivery, such Selling
Stockholder had good and valid title to the Shares to be sold at
such Time of Delivery by such Selling Stockholder under this
Agreement, free and clear of all liens, encumbrances, equities or
claims, and full right, power and authority to sell, assign,
transfer and deliver the Shares to be sold by such Selling
Stockholder hereunder;
(v) Good and valid title to such Shares, free and clear of all
liens, encumbrances, equities or claims, has been transferred to
each of the several Underwriters, who have purchased such Shares in
good faith and without notice of any such lien, encumbrance, equity
or claim or any other adverse claim within the meaning of the
Uniform Commercial Code;
(vi) Such Selling Stockholder's agreement to the choice of law
provisions set forth in Section 14 hereof will be recognized by the
courts of the jurisdiction of incorporation or organization of such
Selling Stockholder; such Selling Stockholder can ▇▇▇ and be sued in
its own name under the laws of the jurisdiction of incorporation or
organization of such Selling Stockholder; the irrevocable submission
of such Selling Stockholder to the exclusive jurisdiction of a New
York Court, the waiver by such Selling Stockholder of any objection
to the venue of a proceeding of a New York court and the agreement
of such Selling Stockholder that this Agreement shall be governed by
and construed in accordance with the laws of the State of New York
are legal, valid and binding; service of process effected in the
manner set forth in Section 14 hereof will be effective, insofar as
the laws of the jurisdiction of incorporation or organization of
such Selling Stockholder are concerned, to confer valid personal
jurisdiction over such Selling Stockholder; and judgment obtained in
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a New York court arising out of or in relation to the obligations of
such Selling Stockholder under this Agreement would be enforceable
against such Selling Stockholder in the courts of the jurisdiction
of incorporation or organization of such Selling Stockholder;
(vii) The Selling Stockholder is not an "investment company",
as such term is defined in the Investment Company Act;
(viii)Although such counsel does not assume any responsibility
for the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus, such
counsel has no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by the
Company prior to such Time of Delivery (other than the financial
statements and related schedules therein, as to which such counsel
need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading
or that, as of its date, the Prospectus or any further amendment or
supplement thereto made by the Company prior to such Time of
Delivery (other than the financial statements and related schedules
therein, as to which such counsel need express no opinion) contained
an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading or
that, as of such Time of Delivery, either the Registration Statement
or the Prospectus or any further amendment or supplement thereto
made by the Company prior to such Time of Delivery (other than the
financial statements and related schedules therein, as to which such
counsel need express no opinion) contains an untrue statement of a
material fact or omits to state a material fact necessary to make
the statements therein, in the light of the circumstances under
which they were made, not misleading; and such counsel does not know
of any amendment to the Registration Statement required to be filed
or of any contracts or other documents of a character required to be
filed as an exhibit to the Registration Statement or required to be
described in the Registration Statement or the Prospectus which are
not filed or described as required;
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the jurisdiction of
incorporation of such Selling Stockholder, in rendering the opinion in
subparagraph (iv) such counsel may rely upon a certificate of such Selling
Stockholder in respect of matters of fact as to ownership of and liens,
encumbrances, equities or claims on, the Shares sold by the Selling Stockholder,
provided that such counsel shall state that he believes that both you and he are
justified in relying upon such certificate and in making the statement in
paragraph (viii) such counsel may limit the scope of its statement to the extent
that any statements made in the Registration Statement and the Prospectus and
any further amendments
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and supplements thereto are made by the Company prior to such Time of Delivery
in reliance upon and in conformity with written information furnished to the
Company by such Selling Stockholder;
(h) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on
the effective date of any post-effective amendment to the
Registration Statement filed subsequent to the date of this
Agreement and also at each Time of Delivery, Ernst & Young LLP shall
have furnished to you a letter or letters, dated the respective
dates of delivery thereof, in form and substance satisfactory to
you, to the effect set forth in Annex I hereto (the executed copy of
the letter delivered prior to the execution of this Agreement is
attached as Annex I(a) hereto and a draft of the form of letter to
be delivered on the effective date of any post-effective amendment
to the Registration Statement and as of each Time of Delivery is
attached as Annex I(b) hereto);
(i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or
not covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus, and (ii) since the respective dates
as of which information is given in the Prospectus there shall not
have been any change in the capital stock, net current assets,
shareholders' equity or long-term debt of the Company or any of its
subsidiaries or any change, or any development involving a
prospective change, in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such
case described in clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery
of the Shares being delivered at such Time of Delivery on the terms
and in the manner contemplated in the Prospectus;
(j) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any
"nationally recognized statistical rating organization", as that
term is defined by the Commission for purposes of Rule 436(g)(2)
under the Act, and (ii) no such organization shall have publicly
announced that it has under surveillance or review, with possible
negative implications, its rating of any of the Company's debt
securities;
(k) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the NYSE; (ii) a suspension or
material limitation in trading in the Company's securities on the
NYSE; (iii) a general moratorium on commercial banking activities in
New York, London or Israel declared by the relevant authorities;
(iv) a change or
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development involving a prospective change in Guernsey taxation
affecting the Company, the Shares or the transfer thereof or the
imposition of exchange controls by the United States or Guernsey; or
(v) the outbreak or escalation of hostilities involving the United
States, the United Kingdom or Israel or the declaration by the
United States, the United Kingdom or Israel of a national emergency
or war, if the effect of any such event specified in this clause (v)
in the judgment of the Representatives makes it impracticable or
inadvisable to proceed with the public offering or the delivery of
the Shares being delivered at such Time of Delivery on the terms and
in the manner contemplated in the Prospectus or (vi) the occurrence
of any material adverse change in the existing financial, political
or economic conditions in the United States, the United Kingdom or
Israel or elsewhere which, in the judgment of the Representatives,
would materially and adversely affect the financial markets or the
market for the Shares and other equity securities;
(l) The Shares to be sold by the Company and the Selling
Stockholder at such Time of Delivery shall have been duly listed,
subject to notice of issuance, on the NYSE;
(m) The Company shall have complied with the provisions of
Section 5(a)(iii) hereof with respect to the furnishing of
prospectuses on the New York Business Day next succeeding the date
of this Agreement; and
(n) The Company and the Selling Stockholders shall have
furnished or caused to be furnished to you at such Time of Delivery
certificates of officers of the Company and the Selling Stockholders
satisfactory to you as to the accuracy of the representations and
warranties of the Company and the Selling Stockholders herein at and
as of such Time of Delivery, as to the performance by the Company
and the Selling Stockholders of all of their respective obligations
hereunder to be performed at or prior to such Time of Delivery, and
as to such other matters as you may reasonably request, and the
Company shall have furnished or caused to be furnished certificates
as to the matters set forth in subsections (a) and (i) of this
Section, and as to such other matters as you may reasonably request.
8. (a) The Company and each of the Selling Stockholders, jointly and
severally, will indemnify and hold harmless each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such action or claim
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as such expenses are incurred; provided, however, that the Company and the
Selling Stockholders shall not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co. expressly for use therein; provided, further, that the liability of each
Selling Stockholder pursuant to this subsection 8(a) shall not exceed the
product of the number of Shares sold by such Selling Stockholder and the initial
public offering price of the Shares as set forth in the Prospectus.
(b) Each Underwriter will indemnify and hold harmless the Company and each
Selling Stockholder against any losses, claims, damages or liabilities to which
the Company or such Selling Stockholder may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment or supplement
thereto, or arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by such
Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein; and will
reimburse the Company and each Selling Stockholder for any legal or other
expenses reasonably incurred by the Company or such Selling Stockholder in
connection with investigating or defending any such action or claim as such
expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying party
under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (which shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or consent to
the entry of any judgment with respect to, any pending or threatened action or
claim in respect of which indemnification or
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contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is unavailable
to or insufficient to hold harmless an indemnified party under subsection (a) or
(b) above in respect of any losses, claims, damages or liabilities (or actions
in respect thereof) referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received
by the Company and the Selling Stockholders on the one hand and the Underwriters
on the other from the offering of the Shares. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required under
subsection (c) above, then each indemnifying party shall contribute to such
amount paid or payable by such indemnified party in such proportion as is
appropriate to reflect not only such relative benefits but also the relative
fault of the Company and the Selling Stockholders on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Stockholders on the one hand
and the Underwriters on the other shall be deemed to be in the same proportion
as the total net proceeds from the offering of the Shares purchased under this
Agreement (before deducting expenses) received by the Company and the Selling
Stockholders bear to the total underwriting discount received by the
Underwriters with respect to the Shares purchased under this Agreement, in each
case as set forth in the table on the cover page of the Prospectus. The relative
fault shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the Selling Stockholders on the one hand or the Underwriters on the other and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The Company, each of the
Selling Stockholders and the Underwriters agree that it would not be just and
equitable if contributions pursuant to this subsection (d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for
such purpose) or by any other method of allocation which does not take account
of the equitable considerations referred to above in this subsection (d). The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
in this subsection (d) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
subsection (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Shares underwritten
by it and distributed to the public were offered to the public exceeds the
amount of any damages which such Underwriter has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person
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guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(e) The obligations of the Company and the Selling Stockholders under this
Section 8 shall be in addition to any liability which the Company and the
respective Selling Stockholders may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company (including any person
who, with his or her consent, is named in the Registration Statement as about to
become a director of the Company) and to each person, if any, who controls the
Company or any Selling Stockholder within the meaning of the Act.
(f) Notwithstanding any other provision of this Section 8, and without
limitation of any other rights to contribution or indemnity which any Selling
Stockholder may have hereunder or otherwise, the Company shall indemnify each
Selling Stockholder with respect to any amounts that are paid by any such
Selling Stockholder under subsection (a) above; provided, however, that the
Company shall not be required to indemnify any Selling Stockholder to the extent
that any such loss, claim, damage or liability arises out of or is based upon a
breach of any representation, warranty or covenant made by such Selling
Stockholder in or pursuant to this Agreement and each Selling Stockholder shall
indemnify the Company with respect to any amounts that are paid by the Company
under subsection (a) above to the extent that any such loss, claim, damage or
liability arises out of or is based upon a breach of any representation,
warranty or covenant made by such Selling Stockholder in or pursuant to this
Agreement. The Company and the Selling Stockholders agree that the foregoing
indemnities shall not diminish or reduce their respective obligations under
subsection (a) above and if the preceding sentence is held to be invalid or
unenforceable for any reason, the parties hereto agree that the respective
indemnities in subsection (a) and (b) above shall remain in full force and
effect, as if this Agreement had been executed without this subsection (f).
9. (a) If any Underwriter shall default in its obligation to purchase the
Shares which it has agreed to purchase hereunder at a Time of Delivery, you may
in your discretion arrange for you or another party or other parties to purchase
such Shares on the terms contained herein. If within thirty-six hours after such
default by any Underwriter you do not arrange for the purchase of such Shares,
then the Company and the Selling Stockholders shall be entitled to a further
period of thirty-six hours within which to procure another party or other
parties satisfactory to you to purchase such Shares on such terms. In the event
that, within the respective prescribed periods, you notify the Company and the
Selling Stockholders that you have so arranged for the purchase of such Shares,
or the Company and the Selling Stockholders notify you that they have so
arranged for the purchase of such Shares, you or the Company and the Selling
Stockholders shall have the right to postpone such Time of Delivery for a period
of not more than seven days, in order to effect
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whatever changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and the Company
agrees to file promptly any amendments to the Registration Statement or the
Prospectus which in your opinion may thereby be made necessary. The term
"Underwriter" as used in this Agreement shall include any person substituted
under this Section with like effect as if such person had originally been a
party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company and
the Selling Stockholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased does not exceed one-eleventh of
the aggregate number of all of the Shares to be purchased at such Time of
Delivery, then the Company and the Selling Stockholders shall have the right to
require each non-defaulting Underwriter to purchase the number of Shares which
such Underwriter agreed to purchase hereunder at such Time of Delivery and, in
addition, to require each non-defaulting Underwriter to purchase its pro rata
share (based on the number of Shares which such Underwriter agreed to purchase
hereunder) of the Shares of such defaulting Underwriter or Underwriters for
which such arrangements have not been made; but nothing herein shall relieve a
defaulting Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company and
the Selling Stockholders as provided in subsection (a) above, the aggregate
number of such Shares which remains unpurchased exceeds one-eleventh of the
aggregate number of all of the Shares to be purchased at such Time of Delivery,
or if the Company and the Selling Stockholders shall not exercise the right
described in subsection (b) above to require non-defaulting Underwriters to
purchase Shares of a defaulting Underwriter or Underwriters, then this Agreement
(or, with respect to the Second Time of Delivery, the obligations of the
Underwriters to purchase and of the Selling Stockholders to sell the Optional
Shares) shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company or the Selling Stockholders, except
for the expenses to be borne by the Company and the Selling Stockholders and the
Underwriters as provided in Section 6 hereof and the indemnity and contribution
agreements in Section 8 hereof; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Selling Stockholders and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, or the Selling Stockholders, or any officer or
director or controlling person of the Company, or any controlling person of the
Selling Stockholders, and shall survive delivery of and payment for the Shares.
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11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company nor the Selling Stockholders shall then be under any
liability to any Underwriter except as provided in Sections 6 and 8 hereof; but,
if for any other reason any Shares are not delivered by or on behalf of the
Company or the Selling Stockholders as provided herein, the Company and each of
the Selling Stockholders pro rata (based on the number of Shares to be sold by
such Selling Shareholders hereunder) will reimburse the Underwriters through you
for all out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Shares not so delivered,
but the Company and the Selling Stockholders shall then be under no further
liability to any Underwriter in respect of the Shares not so delivered except as
provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. on behalf of you as the
representatives ; and in all dealings with any Selling Stockholder hereunder,
you and the Company shall be entitled to act and rely only upon any statement,
request, notice or agreement on behalf of such Selling Stockholder made or given
by any or all of the Attorneys-in-Fact for such Selling Stockholder.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives in care of ▇▇▇▇▇▇▇, Sachs &
Co., ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Registration
Department; if to any Selling Stockholder shall be delivered or sent by mail,
telex or facsimile transmission to counsel for such Selling Stockholder at its
address set forth in Schedule ll hereto; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the Company in
care of Amdocs, Inc. ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇-▇▇▇▇,
Attention: Secretary; provided, however, that any notice to an Underwriter
pursuant to Section 8 (d) hereof shall be delivered or sent by mail, telex or
facsimile transmission to such Underwriter at its address set forth in its
Underwriters' Questionnaire or telex constituting such Questionnaire, which
address will be supplied to the Company or the Selling Stockholders by you upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the benefit
of, the Underwriters, the Company and the Selling Stockholders and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company and each person who controls the Company, any Selling Stockholder or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Shares from any Underwriter
shall be deemed a successor or assign by reason merely of such purchase.
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14. Each of the parties hereto irrevocably (i) agrees that any legal suit,
action or proceeding against the Company or any Selling Stockholder brought by
any Underwriter or by any person who controls any Underwriter arising out of or
based upon this Agreement or the transactions contemplated hereby may be
instituted in any New York Court, (ii) waives, to the fullest extent it may
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such proceeding and (iii) submits to the exclusive
jurisdiction of such courts in any such suit, action or proceeding. The Company
and each Selling Stockholder that is incorporated or organized outside of the
United States has appointed Amdocs Inc., St. Louis, Missouri, as its authorized
agent (the "Authorized Agent") upon whom process may be served in any such
action arising out of or based on this Agreement or the transactions
contemplated hereby which may be instituted in any New York Court by any
Underwriter or by any person who controls any Underwriter, expressly consents to
the jurisdiction of any such court in respect of any such action, and waives any
other requirements of or objections to personal jurisdiction with respect
thereto. Such appointment shall be irrevocable. The Company and each such
Selling Stockholder represents and warrants that the Authorized Agent has agreed
to act as such agent for service of process and agrees to take any and all
action, including the filing of any and all documents and instruments, that may
be necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon the Authorized Agent and written notice of such service
to the Company shall be deemed, in every respect, effective service of process
upon the Company and such Selling Stockholder, as the case may be.
15. In respect of any judgment or order given or made for any amount due
hereunder that is expressed and paid in a currency (the "judgment currency")
other than United States dollars, the Company and the Selling Stockholders, as
the case may be, will indemnify each Underwriter against any loss incurred by
such Underwriter as a result of any variation as between (i) the rate of
exchange at which the United States dollar amount is converted into the judgment
currency for the purpose of such judgment or order and (ii) the rate of exchange
at which an Underwriter is able to purchase United States dollars with the
amount of the judgment currency actually received by such Underwriter. The
foregoing indemnity shall constitute a separate and independent obligation of
the Company and the Selling Stockholders and shall continue in full force and
effect notwithstanding any such judgment or order as aforesaid. The term "rate
of exchange" shall include any premiums and costs of exchange payable in
connection with the purchase of or conversion into United States dollars.
16. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
17. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK.
18. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
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If the foregoing is in accordance with your understanding, please sign and
return to us twelve counterparts hereof, and upon the acceptance hereof by you,
on behalf of each of the Underwriters, this letter and such acceptance hereof
shall constitute a binding agreement among each of the Underwriters, the Company
and each of the Selling Stockholders. It is understood that your acceptance of
this letter on behalf of each of the Underwriters is pursuant to the authority
set forth in a form of Agreement among Underwriters, the form of which shall be
submitted to the Company and the Selling Stockholders for examination upon
request, but without warranty on your part as to the authority of the signers
thereof.
Any person executing and delivering this Agreement as Attorney-in-Fact for
a Selling Stockholder represents by so doing that he has been duly appointed as
Attorney-in-Fact by such Selling Stockholder pursuant to a validly existing and
binding Power of Attorney which authorizes such Attorney-in-Fact to take such
action.
Very truly yours,
Amdocs Limited
By:________________________________________
Name:
Title:
[Names of Selling Stockholders]
By:________________________________________
Name:
Title:
As Attorney-in-Fact acting on behalf of each
of the Selling Stockholders named in
Schedule ll to this Agreement.
Accepted as of the date hereof:
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
Banc of America Securities LLC
BancBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
BT Alex. ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇ Brothers Inc.
▇▇ ▇▇▇▇▇ Securities Corporation
By:_____________________________________________
(▇▇▇▇▇▇▇, Sachs & Co.)
On behalf of each of the Underwriters
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SCHEDULE I
NUMBER OF OPTIONAL
SHARES TO BE
TOTAL NUMBER OF PURCHASED IF
FIRM SHARES MAXIMUM OPTION
UNDERWRITER TO BE PURCHASED EXERCISED
--------------------------------------- --------------- ------------------
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co....................
Banc of America Securities LLC.........
BancBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc......
BT Alex. ▇▇▇▇▇ Incorporated............
▇▇▇▇▇▇ Brothers Inc....................
▇▇ ▇▇▇▇▇ Securities Corporation........
Total
=============== ==================
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SCHEDULE II
NUMBER OF OPTIONAL
TOTAL NUMBER OF FIRM SHARES TO BE SOLD
SHARES IF MAXIMUM OPTION
THE SELLING STOCKHOLDERS TO BE SOLD EXERCISED
--------------------------------------- -------------------- ------------------
[Name of Selling Stockholder](a)
[Name of Selling Stockholder](b)
[Name of Selling Stockholder](c)
[Name of Selling Stockholder](d)
[Name of Selling Stockholder](e)
Total
(a) This Selling Stockholder is represented by [Name and Address of
Counsel] and has appointed [Names of Attorneys-in-Fact], and each of them, as
the Attorneys-in-Fact for such Selling Stockholder.
(b) This Selling Stockholder is represented by [Name and Address of
Counsel] and has appointed [Names of Attorneys-in-Fact], and each of them, as
the Attorneys-in-Fact for such Selling Stockholder.
(c) This Selling Stockholder is represented by [Name and Address of
Counsel] and has appointed [Names of Attorneys-in-Fact], and each of them, as
the Attorneys-in-Fact for such Selling Stockholder.
(d) This Selling Stockholder is represented by [Name and Address of
Counsel] and has appointed [Names of Attorneys-in-Fact], and each of them, as
the Attorneys-in-Fact for such Selling Stockholder.
(e) This Selling Stockholder is represented by [Name and Address of
Counsel] and has appointed [Names of Attorneys-in-Fact], and each of them, as
the Attorneys-in-Fact for such Selling Stockholder.
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ANNEX I
Pursuant to Section 7(h) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants with
respect to the Company and its subsidiaries within the meaning of
the Act and the applicable published rules and regulations
thereunder;
(ii) In their opinion, the financial statements examined by
them and included in the Prospectus or the Registration Statement
comply as to form in all material respects with the applicable
accounting requirements of the Act and the related published rules
and regulations thereunder;
(iii) They have made a review in accordance with standards
established by the American Institute of Certified Public
Accountants of the unaudited condensed consolidated statements of
operations, consolidated balance sheets, consolidated statement of
changes in shareholders' equity and consolidated statements of cash
flows included in the Prospectus; and on the basis of specified
procedures including inquiries of officials of the Company who have
responsibility for financial and accounting matters regarding
whether the unaudited condensed consolidated financial statements
referred to in paragraph (vi)(1)(i) below comply as to form in all
material respects with the applicable accounting requirements of the
Act and the related published rules and regulations, nothing came to
their attention that caused them to believe that the unaudited
condensed consolidated financial statements do not comply as to form
in all material respects with the applicable accounting
requirements of the Act and the related published rules and
regulations;
(iv) They have compared the information in the Prospectus
under selected captions with the disclosure requirements of
Regulation S-K and on the basis of limited procedures specified in
such letter nothing came to their attention as a result of the
foregoing procedures that caused them to believe that this
information does not conform in all material respects with the
disclosure requirements of Item 8 of Form 20-F and of Regulation
S-K;
(v) On the basis of limited procedures, not constituting an
examination in accordance with generally accepted auditing
standards, consisting of a reading of the unaudited financial
statements and other information referred to below, a reading of the
latest available interim financial statements of the Company and its
subsidiaries, inspection of the minute books of the Company and its
subsidiaries since the date of the latest audited financial
statements included in the Prospectus, inquiries of officials of
the Company and its subsidiaries responsible for
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financial and accounting matters and such other inquiries and
procedures as may be specified in such letter, nothing came to their
attention that caused them to believe that:
1) (i) the unaudited consolidated statements of
operations, consolidated balance sheets, consolidated
statement of changes in shareholders' equity and
consolidated statements of cash flows included in the
Prospectus do not comply as to form in all material
respects with the applicable accounting requirements of
the Act and the related published rules and regulations,
or (ii) any material modifications should be made to the
unaudited consolidated statements of operations,
consolidated balance sheets, consolidated statement of
changes in shareholders' equity and consolidated
statements of cash flows included in the Prospectus for
them to be in conformity with generally accepted
accounting principles;
2) any other unaudited income statement data and
balance sheet items included in the Prospectus do not
agree with the corresponding items in the unaudited
consolidated financial statements from which such data
and items were derived, and any such unaudited data and
items were not determined on a basis substantially
consistent with the basis for the corresponding amounts
in the audited consolidated financial statements
included in the Prospectus;
3) the unaudited financial statements which were
not included in the Prospectus but from which were
derived any unaudited condensed financial statements
referred to in Clause (1) and any unaudited income
statement data and balance sheet items included in the
Prospectus and referred to in Clause (2) were not
determined on a basis substantially consistent with the
basis for the audited consolidated financial statements
included in the Prospectus;
4) as of , 1999, there have been any
changes in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and
stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities,
in each case which were outstanding on the date of the
latest financial statements included in the Prospectus)
or any increase in the consolidated long-term debt of
the Company and its subsidiaries, or any decreases in
consolidated net current
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assets or shareholders' equity, in each case as compared
with amounts shown in the latest balance sheet included
in the Prospectus, except in each case for changes,
increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in
such letter;
5) for the period from the date of the latest
financial statements included in the Prospectus to the
specified date referred to in Clause (4) there were any
decreases in consolidated net revenues or the total or
per share amounts of consolidated net income, in each
case as compared with the comparable period of the
preceding year, except in each case for decreases or
increases which the Prospectus discloses have occurred
or may occur or which are described in such letter; and
6) as of a specified date not more than five days
prior to the date of such letter, there have been any
changes in the consolidated capital stock (other than
issuances of capital stock upon exercise of options and
stock appreciation rights, upon earn-outs of performance
shares and upon conversions of convertible securities,
in each case which were outstanding on the date of the
latest financial statements included in the Prospectus)
or any increase in the consolidated long-term debt of
the Company and its subsidiaries, in each case as
compared with amounts shown in the latest balance sheet
included in the Prospectus, except in each case for
changes or increases which the Prospectus discloses
have occurred or may occur or which are described in
such letter; and
(vi) Although they are unable to and do not express any
opinion on the pro forma consolidated financial statements of
operations (the "Pro Forma Statements"), if any, included in the
Prospectus or on the pro forma adjustments applied to the historical
amounts included in the Pro Forma Statements; for purposes of this
letter they have performed the following procedures:
1) read the Pro Forma Statements;
2) performed an audit of the financial statements to
which the pro forma adjustments were applied;
3) made inquires of certain officials of the Company
who have responsibility for financial and
accounting matters about the basis for their
determination of the pro forma adjust-
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ments and whether the Pro Forma Statements comply
as to form in all material respects with the
applicable accounting requirements of Rule 11-02
of Regulation S-X; and
4) proved the arithmetic accuracy of the application
of the pro forma adjustments to the historical
amounts in the Pro Forma Statements; and on the
basis of such procedures and such other inquiries
and procedures as specified herein, nothing came
to their attention that caused them to believe
that (i) the Pro Forma Statements included in the
Prospectus do not comply as to form in all
material respects with the applicable
requirements of Rule 11-02 of Regulations S-X or
(ii) the pro forma adjustments have not been
properly applied to the historical amounts in the
compilation of those statements.
(vii) In addition to the examination referred to in their
report(s) included in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred
to in paragraphs (iii) and (v) above, they have carried out certain
specified procedures, not constituting an examination in accordance
with generally accepted auditing standards, with respect to certain
amounts, percentages and financial information specified by the
Representatives, which are derived from the general accounting
records of the Company and its subsidiaries, which appear in the
Prospectus, or in Part II of, or in exhibits and schedules to, the
Registration Statement specified by the Representatives, and have
compared certain of such amounts, percentages and financial
information with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
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