1
EXHIBIT 1
Execution Copy
$300,000,000
Alcan Aluminium Limited
7.25% Debentures Due 2028
6.25% Debentures Due 2008
UNDERWRITING AGREEMENT
October 23, 1998
2
October 28, 1998
XXXXXX XXXXXXX & CO.
INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
X.X. XXXXXX SECURITIES INC.
c/o MORGAN XXXXXXX & CO.
INCORPORATED
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Alcan Aluminium Limited, a Canadian corporation (the "Company"), proposes
to issue U.S. $100,000,000 in principal amount of its 7.25% Debentures due
November 1, 2028 (the "2028 Debentures") and U.S. $200,000,000 in principal
amount of its 6.25% Debentures due November 1, 2008 (the "2008 Debentures" and
together with the 2028 Debentures, the "Securities") to be issued pursuant to
the provisions of the Indenture dated as of May 15, 1983, as supplemented (as so
supplemented, the "Indenture"), between the Company and Bankers Trust Company,
as Trustee (the "Trustee"). The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement including a
prospectus relating to up to U.S. $400,000,000 in principal amount of debt
securities and will file with, or mail for filing to, the Commission a
prospectus supplement specifically relating to the Securities pursuant to Rule
424 under the Securities Act of 1933. The term "Registration Statement" means
the registration statement as amended to the date hereof. The term "Basic
Prospectus" means the prospectus included in the Registration Statement. The
term "Prospectus" means the Basic Prospectus together with the prospectus
supplement specifically relating to the Securities, as filed with, or mailed for
filing to, the Commission pursuant to Rule 424. The term "preliminary
prospectus" means a preliminary prospectus supplement specifically relating to
the Securities together with the Basic Prospectus. As used herein, the terms
"Registration Statement", "Basic Prospectus", "Prospectus" and "preliminary
prospectus" shall include in each case the material incorporated by reference
therein.
I.
The Company hereby agrees to sell to the several Underwriters named in
Schedule A hereto and the Underwriters, upon the basis of the representations
and warranties herein contained, but subject to the conditions hereinafter
stated, agree to purchase from the Company, severally and not jointly, the
principal amounts of the 2028 Debentures and the 2008 Debentures set forth
below opposite their names in Schedule A at 99.105% and 99.471%, respectively,
of the principal amount (each a "Purchase Price") and accrued interest from
October 28, 1998, to the date of payment and delivery.
1
3
As compensation for the services of the Underwriters in connection with the
transactions contemplated by this Agreement for investment banking and advisory
services rendered to the Company by the Underwriters, and for the Underwriters
acting as financial advisors to the Company, assisting in the preparation of
the Prospectus and the prospectus supplement, managing the sale of the
Securities and distributing the Securities to the public both directly and
through brokers and dealers, the Company hereby agrees to pay to the
Underwriters, on the Closing Date (as defined below), a commission in the amount
of U.S.$875,000 with respect to the 2028 Debentures and a commission in the
amount of U.S.$1,300,000 with respect to the 2008 Debentures. Such commissions
shall be paid to the Underwriters by wire transfer of immediately available
funds to an account specified by Xxxxxx Xxxxxxx & Co. Incorporated. Each such
commission shall be paid without set-off or counterclaim, and free and clear of,
and without deduction or withholding for or on account of, any present or future
taxes, levies, imposts, duties, fees, assessments or other charges of whatever
nature, imposed by Canada or any Province or Territory thereof, or by any
department, agency or other political subdivision or taxing authority either
thereof or therein, and all interest, penalties or similar liabilities with
respect thereto ("Canadian Taxes"). If any Canadian Taxes are required by law
to be deducted or withheld in connection with the payment of each such
commission, the Company will increase the amount paid to the Underwriters so
that the Underwriters receive the full amount of such commission. The
obligations of the Company contained in this paragraph shall survive the
delivery of the Securities to the Underwriters.
II.
The Company is advised by you that the Underwriters propose to make a
public offering of their respective portions of the Securities as soon after
this Agreement is entered into as in your judgment is advisable. The Company is
further advised by you that the 2028 Debentures are to be offered to the public
initially at 99.105% of the principal amount and the 2008 Debentures are to be
offered to the public initially at 99.471% of the principal amount (each a
"Public Offering Price") and accrued interest, and with respect to the 2028
Debentures to certain dealers at a price which represents a concession of not in
excess of .500% of the principal amount under their Public Offering Price and
with respect to the 2008 Debentures to certain dealers at a price which
represents a concession of not in excess of .400% of the principal amount under
their Public Offering Price; that the Underwriters and such dealers may allow a
discount, not in excess of .250% of the principal amount in the case of the 2028
Debentures and .250% of the principal amount in the case of the 2008
Debentures, to certain other dealers; and that the Public Offering Price and
concession and discount to dealers may be changed by the Underwriters.
2
4
Each Underwriter represents that it has not offered or sold, and agrees
that it will not offer or sell, any of the Securities purchased by it hereunder,
directly or indirectly, in Canada in contravention of the securities laws of
Canada or of any Province or Territory thereof.
III.
Payment for the Securities shall be made by wire transfer of immediately
available funds to an account specified by the Company. Delivery to the
Underwriters of the Securities in global form and registered in the name of the
Depository Trust Company or its nominee shall take place at the office of Xxxxx
Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00
o'clock A.M., New York time, on October 28, 1998, or at such other time on the
same or such other date, not later than October 30, 1998, as shall be
designated by you and the Company. The time and date of such payment and
delivery are herein referred to as the "Closing Date".
IV.
The several obligations of the Underwriters hereunder are subject to the
following conditions:
(a)(i) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission; (ii) there shall not have
occurred any downgrading in the rating accorded any debt securities of the
Company by Standard & Poor's Corporation or Xxxxx'x Investors Service, Inc., or
any public announcement by either such organization of an intended or potential
downgrading; and (iii) there shall have been no material adverse change (not in
the ordinary course of business) in the condition of the Company and its
subsidiaries, taken as a whole, from that set forth in the Prospectus; and you
shall have received, on the Closing Date, a certificate, dated the Closing Date
and signed by an officer of the Company, to the foregoing effect. The officer
making such certificate may rely upon the best of his knowledge as to
proceedings pending or threatened.
(b) You shall have received on and as of the Closing Date a favorable
opinion of XxXxxxxx Xxxxxxxx, Canadian counsel for the Company, to the effect
that:
3
5
(i) the Company has been duly incorporated and is validly existing as
a corporation under the laws of Canada and has received a certificate of
compliance dated as of a recent date under the Canada Business Corporations Act;
(ii) the Indenture has been duly authorized, executed and delivered by
the Company and constitutes a valid and binding agreement of the Company;
(iii) the Securities have been authorized by all necessary
corporate action and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the Underwriters
pursuant to this Agreement, will constitute valid and binding obligations of the
Company;
(iv) this Agreement has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the Company,
except as rights to indemnity and contribution hereunder may be limited by
applicable law;
(v) no consent, approval or authorization of, or registration,
recordation or filing with, any governmental body in Canada is required for the
issuance and sale of the Securities to the Underwriters pursuant to this
Agreement and the Indenture, except such as have been obtained under the Canada
Business Corporations Act and the Securities Act (Quebec);
(vi) neither the issuance and sale of the Securities hereunder
nor the fulfillment of the terms thereof will contravene any provision of
applicable law in Canada or the Restated Articles of Incorporation or By-law of
the Company;
(vii) no registration of the Securities under the securities and
other similar laws of Canada or of any Province or Territory of Canada or of any
political subdivision thereof, and no approval, permit, order or filing
thereunder, is required in connection with the authorization, execution,
delivery and performance by the Company of this Agreement and the issue, offer
and sale (other than in Canada) of the Securities in the manner contemplated by
this Agreement except for any approval which has been obtained and filings which
have been made under the Canada Business Corporations Act and the Securities Act
(Quebec);
(viii) no taxes are payable under the laws of Canada or of any
Province or Territory of Canada in connection with the execution and delivery of
the Indenture or the issuance of the Securities in accordance with this
Agreement;
(ix) no registration, recording or filing of the Indenture is
required under the laws of Canada or of any Province or Territory of Canada or
of any political subdivision thereof in connection with the authorization,
execution, delivery and performance by the Company of the Indenture except for
an exemption which has been obtained and filings which have been made under the
Canada Business Corporations Act;
4
6
(x) as of the Closing Date, their opinion as set forth in the
Prospectus under the caption "Canadian Taxation" is true and correct; and
(xi) as of the Closing Date, their opinion as summarized in the
Prospectus regarding enforceability of U.S. securities laws is true and correct.
(c) You shall have received on and as of the Closing Date a favorable
opinion of Xxx Xxxxxxxxxx, Esq., Counsel of the Company, to the effect that:
(i) the Company has been duly incorporated and is validly existing as
a corporation under the laws of Canada, has received a certificate of compliance
dated as of a recent date under the Canada Business Corporations Act and is duly
qualified to transact business and is in good standing in each jurisdiction in
which the conduct of its business or the ownership or leasing of its property
requires such qualification and in which failure to qualify would have a
material adverse effect on the businesses, operations, properties or financial
condition of the Company and its subsidiaries taken as a whole (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 or
representations of officers or senior employees of the Company, provided that
such counsel shall state that he believes that both you and he are justified in
relying upon such opinions, certificates and representations);
(ii) neither the issuance and sale of the Securities hereunder nor the
fulfillment of the terms thereof will contravene any provision of applicable law
in Canada or the Restated Articles of Incorporation or By-law of the Company or,
to the best knowledge of such counsel, any agreement or other instrument binding
upon the Company;
(iii) except as set forth in the Prospectus and the documents
incorporated by reference therein, there are no material pending legal
proceedings known to such counsel to which the Company or any of its
subsidiaries is a party or of which property of the Company or any of its
subsidiaries is the subject and to the best knowledge of such counsel no such
proceeding is contemplated;
(iv) the statements in the Prospectus under the captions "Description
of Securities" and "Description of the Debentures" and in the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1997, as amended,
under the caption "Item 3 - Legal Proceedings'', insofar as such statements
constitute a summary of the documents and proceedings referred to therein,
fairly present the information called for with respect to such documents and
proceedings; and
5
7
(v) such counsel has no reason to believe that the Registration
Statement on the date it became effective and the Prospectus on the date of this
Agreement (in either case, as amended or supplemented, if applicable, and except
for the financial statements and schedules included therein, as to which such
counsel need express no belief) contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or that the Prospectus
(as amended or supplemented, if applicable, except for the financial statements
and schedules included therein, as to which such counsel need express no belief)
contains any untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
(d) You shall have received on and as of the Closing Date a favorable
opinion or opinions of Milbank, Tweed, Xxxxxx & XxXxxx, United States counsel
for the Company, covering the matters in (ii), (iii) and (iv) of (b) above, in
(iii) and (v) of (c) above and to the effect that:
(i) the Registration Statement has become effective under the
Securities Act of 1933 and the Indenture has been duly qualified under the Trust
Indenture Act of 1939 and, to the best knowledge of such counsel, no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or
threatened;
(ii) the statements in the Prospectus under the captions "Description
of Securities", "Description of the Debentures", and "Plan of Distribution",
insofar as such statements constitute a summary of the documents referred to
therein, fairly present the information called for with respect thereto;
(iii) no consent, approval or authorization of, or registration,
recordation or filing with, any governmental body in the United States is
required for the execution, delivery and performance of this Agreement and the
Indenture or the issuance and sale of the Securities to the Underwriters
pursuant to this Agreement and the Indenture, except such as have been obtained
under the Securities Act of 1933, as amended, and the Trust Indenture Act of
1939, as amended, and such as may be required under the securities or Blue Sky
laws of any jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters;
(iv) such counsel is of the opinion that (A) each document filed
pursuant to the Securities Exchange Act of 1934 (except for the financial
statements and schedules included therein, as to which such counsel need express
no opinion) and incorporated by reference in the Prospectus complied when so
filed as to form in all material respects with the Securities Exchange Act of
1934, together with the
6
8
applicable rules and regulations of the Commission thereunder and (B) the
Registration Statement and the Prospectus and any supplements or amendments
thereto (except for the financial statements included therein, as to which such
counsel need express no opinion) comply as to form in all material respects with
the Securities Act of 1933 and the rules and regulations of the Commission
thereunder;
(v) such counsel does not know of any contract or other document of a
character required to be filed as an exhibit to the Registration Statement or
required to be described in the Registration Statement or Prospectus which is
not filed or described as required; and
(vi) neither the issuance and sale of the Securities hereunder nor the
fulfillment of the terms thereof will contravene, to the best knowledge of such
counsel, any agreement or other instrument for borrowed money binding upon the
Company.
(e) You shall have received on the Closing Date an opinion of Xxxxx Xxxx &
Xxxxxxxx, counsel for the Underwriters, dated the Closing Date, covering the
matters in (ii), (iii) and (iv) in (b) above, in (v) in (c) above and in (i),
(ii) and (iv) (B) of (d) above.
It is understood that Milbank, Tweed, Xxxxxx & XxXxxx and Xxxxx Xxxx &
Xxxxxxxx may base their opinions as to all matters relating to the laws of
Canada or any Province or Territory thereof upon the opinions of XxXxxxxx
Xxxxxxxx and Xxx Xxxxxxxxxx, Esq. It is further understood that XxXxxxxx
Xxxxxxxx and Xxx Xxxxxxxxxx, Esq. may, except to the extent specified above,
limit their opinions to the Federal laws of Canada and, for the opinion of Xxx
Xxxxxxxxxx, Esq., the laws of the Province of Quebec and, for the opinion of
XxXxxxxx Xxxxxxxx, the laws of the Provinces of Quebec, Ontario and Alberta, and
may base their opinions upon (i) the opinions of local counsel as to all matters
relating to Canadian law other than such Federal and provincial laws and (ii)
the opinion of Milbank, Tweed, Xxxxxx & XxXxxx as to all matters relating to the
laws of the United States or the State of New York. Counsel may state that with
respect to (c) (v) and (d) (iv) (B) and (v) above their belief or opinion, as
the case may be, is based upon their participation in the preparation of the
Registration Statement and the Prospectus and any supplements and amendments
thereto and review and discussion of the contents thereof, but is without
independent check or verification except as specified.
(f) You shall have received on the Closing Date a letter dated the Closing
Date, in form and substance satisfactory to you, from Pricewaterhouse Coopers
LLP, independent public accountants, containing statements and information of
the type ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial information
contained in or incorporated by reference in the Registration Statement and the
Prospectus.
7
9
V.
In further consideration of the agreements of the Underwriters herein
contained, the Company covenants as follows:
(a) to furnish you, without charge, three signed copies of the Registration
Statement (including exhibits and documents incorporated by reference therein)
and to each other Underwriter a copy of the Registration Statement (without
exhibits but including documents incorporated by reference therein) and, during
the period mentioned in paragraph (c) below, as many copies of the Prospectus,
the documents incorporated by reference therein and any supplements and
amendments thereto as you may reasonably request. The terms "supplement" and
"amendment" or "amend" as used in this Agreement shall include all documents
filed by the Company after the date of the Basic Prospectus pursuant to the
Securities Exchange Act of 1934, which are deemed to be incorporated by
reference in the Registration Statement and the Prospectus;
(b) before amending or supplementing the Registration Statement or the
Prospectus with respect to the Securities, to furnish you a copy of each such
proposed amendment or supplement;
(c) if, during such period after the first date of the public offering of
the Securities as in the opinion of your counsel the Prospectus is required by
law to be delivered in connection with sales by an Underwriter or dealer, any
event shall occur as a result of which it is necessary to amend or supplement
the Prospectus in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not misleading,
or if it is necessary to amend or supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses you will furnish to the Company) to which
Securities may have been sold by you on behalf of the Underwriters and to any
other dealers upon request, either amendments or supplements to the Prospectus
so that the statements in the Prospectus as so amended or supplemented will not,
in the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus will comply with law;
(d) to endeavor to qualify the Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions of the United States as you
shall reasonably request and to pay all expenses (including fees and
disbursements of counsel) in connection with such qualification and in
connection with the determination of the
8
10
eligibility of the Securities for investment under the laws of such
jurisdictions as you may designate; provided, however, that the Company shall
not be required to qualify as a foreign corporation or file a general consent to
service of process in any jurisdiction;
(e) to make generally available to the Company's security holders as soon
as practicable an earnings statement covering a twelve-month period beginning
after the date hereof, which shall satisfy the provisions of Section 11(a) of
the Securities Act of 1933 and the rules and regulations of the Commission
thereunder; and
(f) during the period beginning on the date hereof and continuing to and
including the Closing Date, not to offer, sell, contract to sell or otherwise
dispose of any United States dollar-denominated debt securities of the Company
which are substantially similar to the Securities, without your prior consent,
which consent shall not be unreasonably withheld.
VI.
The Company represents and warrants to each Underwriter that (i) each
document filed or to be filed pursuant to the Securities Exchange Act of 1934
and incorporated by reference in the Prospectus complied or will comply when so
filed in a material respects with such Act and the rules and regulations
thereunder, (ii) each part of the registration statement (including the
documents incorporated by reference therein), filed with the Commission pursuant
to the Securities Act of 1933 relating to the Securities, when such part became
effective, did not contain any untrue statement of material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading, (iii) each preliminary prospectus, if any,
filed pursuant to Rule 424 under the Securities Act of 1933 complied when so
filed in all material respects with such Act and the applicable rules and
regulations thereunder, (iv) the Registration Statement and the Prospectus
comply and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act of 1933 and the applicable rules and
regulations thereunder and the Prospectus does not contain and, as amended or
supplemented, if applicable, (v) will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading; except that these representations
and warranties do not apply to statements or omissions in the Registration
Statement, any preliminary prospectus or the Prospectus based upon information
furnished to the Company in writing by any Underwriter expressly for use
therein.
The Company agrees to indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of either
9
11
Section 15 of the Securities Act of 1933 or Section 20 of the Securities
Exchange Act of 1934, from and against any and all losses, claims, damages and
liabilities caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, any preliminary
prospectus or the Prospectus (if used within the period set forth in paragraph
(c) of Article V hereof and as amended or supplemented if the Company shall have
furnished any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, except insofar as
such losses, claims, damages or liabilities are caused by any such untrue
statement or omission or alleged untrue statement or omission based upon
information furnished in writing to the Company by any Underwriter expressly for
use therein; provided that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages or liabilities
purchased the Securities or of any person controlling such Underwriter, if a
copy of the Prospectus (as then amended or supplemented if the Company shall
have furnished any amendments or supplements thereto) was not sent or given by
or on behalf of such Underwriter to such person, if required by law so to have
been delivered, at or prior to the written confirmation of the sale of the
Securities to such person, and if the Prospectus (as so amended or supplemented)
would have cured the defect giving rise to such loss, claim, damage or
liability.
Each Underwriter agrees, severally and not jointly, to indemnify and hold
harmless the Company, its Directors, its Officers and its authorized
representative or representatives in the United States who sign the Registration
Statement and any person controlling the Company to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with
reference to information relating to such Underwriter furnished in writing by
such Underwriter expressly for use in the Registration Statement, any
preliminary prospectus or the Prospectus.
In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the fees and disbursements of such counsel related to such proceeding.
In any such proceeding, any indemnified party shall have the right to retain its
own counsel, but the fees and expenses of such counsel shall be at the expense
of such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded
10
12
parties) include both the indemnifying party and the indemnified party and
representation of both parties by the same counsel would be inappropriate due to
actual or potential differing interests between them. It is understood that the
indemnifying party shall not, in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the reasonable fees and
expenses of more than one separate firm for all such indemnified parties. Such
firm shall be designated in writing by you in the case of parties indemnified
pursuant to the second preceding paragraph and by the Company in the case of
parties indemnified pursuant to the first preceding paragraph. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
If the indemnification provided for in the second and third paragraphs of
this Article VI is unavailable as a matter of law to an indemnified party in
respect of any losses, claims, damages or liabilities referred to therein, then
each indemnifying party under either such paragraph, in lieu of indemnifying
such indemnified party thereunder, shall contribute to the amount paid or
payable by such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the Company
on the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting commissions
received by the Underwriters, in each case as set forth in the table on the
cover page of the Prospectus. The relative fault of the Company and of the
Underwriters 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 by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VI 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
11
13
considerations referred to in the immediately preceding paragraph. The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages and liabilities referred to in the immediately preceding paragraph shall
be deemed to include, subject to the limitations set forth above, 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 Article VI, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the
Securities 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 guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act of 1933) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
Article VI are several in proportion to their respective underwriting
percentages (as defined in the Agreement Among Underwriters) and not joint.
The indemnity and contribution agreements contained in this Article VI and
the representations and warranties of the Company in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Underwriter or any
person controlling the Company and (iii) acceptance of and payment for the
Securities.
The Company agrees that any legal suit, action or proceeding brought by any
Underwriter to enforce the indemnity or contribution agreements contained in
this Article VI may be instituted in any state or Federal court in The City of
New York, State of New York, waives to the fullest extent permitted by law any
objection which it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding. The Company hereby irrevocably designates and
appoints CT Corporation System (or any successor corporation) as the Company's
authorized agent to accept and acknowledge on its behalf service of any and all
process which may be served in any such suit, action or proceeding in any such
court and agrees that service of process upon CT Corporation System (or said
successor corporation) at its office at 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(or such other address in the Borough of Manhattan, The City of New York, as the
Company may designate by written notice to you) and written notice of said
service to the Company, mailed or delivered to Alcan Aluminium Limited, 0000
Xxxxxxxxxx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxx, Xxxxxx, X0X 0X0, Attn.: Secretary,
shall be deemed in every respect effective service of process upon the Company
in any such suit, action or proceeding and shall be taken and held to be valid
personal service upon the Company. Said designation and appointment shall be
irrevocable until the principal of and interest
12
14
on the Securities and all other sums owing by the Company in accordance with the
provisions of the Securities and the Indenture have been paid in full by the
Company in accordance with the provisions thereof. The Company agrees to take
all action as may be necessary to continue the designation and appointment of CT
Corporation System or any successor corporation in full force and effect so that
the Company shall at all times have an agent for service of process for the
above purposes in Xxx Xxxx xx Xxx Xxxx, Xxxxx xx Xxx Xxxx, Xxxxxx Xxxxxx of
America. Nothing in this Article VI shall affect the right of any Underwriter
to serve process in any manner permitted by law or limit the right of any
Underwriter to bring proceedings against the Company in the courts of any
jurisdiction or jurisdictions.
VII.
If, on the Closing Date, any one or more of the Underwriters shall fail or
refuse to purchase the Securities which it or they have agreed to purchase
hereunder on such date, and the aggregate principal amount of Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate principal amount of the
Securities, the other Underwriters shall be obligated, severally in the
proportions which the amounts of Securities set forth opposite their names in
Schedule A hereto bear to the aggregate principal amount of Securities set forth
opposite the names of all such non-defaulting Underwriters, or in such other
proportions as you may specify, to purchase the Securities which such defaulting
Underwriter or Underwriters agreed but failed or refused to purchase; provided
that in no event shall the principal amount of Securities which any Underwriter
has agreed to purchase pursuant to Article I be increased pursuant to this
Article VII by an amount in excess of one-ninth of such principal amount of
Securities, without the written consent of such Underwriter.
If, on the Closing Date, any Underwriter or Underwriters shall fail or
refuse to purchase Securities which it or they agreed to purchase hereunder, and
the aggregate principal amount of Securities with respect to which such default
occurs is more than one-tenth of the aggregate principal amount of the
Securities and arrangements satisfactory to you and the Company for the purchase
of such Securities are not made within 36 hours after such default, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter or of the Company. In any such case either you or the Company shall
have the right to postpone the Closing Date, but in no event for longer than
seven days, in order that the required changes, if any, in the Prospectus or in
any other documents or arrangements may be effected. Any action taken under
this paragraph or any such termination shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
13
15
This Agreement shall be subject to termination in your absolute discretion,
by notice given to the Company, if prior to the Closing Date (i) trading in
securities generally in the New York Stock Exchange shall have been suspended or
materially limited, (ii) a general moratorium on commercial banking activities
in New York shall have been declared by either Federal or New York State
authorities or (iii) there shall have occurred any material outbreak or
escalation of hostilities or other calamity or crisis the effect of which on the
financial markets of the United States is such as to the make it, in your
judgment, impracticable to market the Securities.
If this Agreement shall be terminated by the Underwriters, or any of them,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by them in connection with the Securities.
This Agreement may be executed in one or more counterparts and it is not
necessary that signatures of all parties appear on the same counterpart, but
such counterparts together shall constitute but one and the same agreement.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Very truly yours,
ALCAN ALUMINIUM LIMITED
By:_________________________
Accepted, October 28, 1998
XXXXXX XXXXXXX & CO. INCORPORATED
CREDIT SUISSE FIRST BOSTON CORPORATION
X.X. XXXXXX SECURITIES INC.
By XXXXXX XXXXXXX & CO. INCORPORATED
By:___________________________________
14
16
SCHEDULE A
Principal Principal
Amount of the Amount of the
Name 2028 Debentures 2008 Debentures
---- ---------------- ---------------
Xxxxxx Xxxxxxx & Co. Incorporated $ 55,000,000 $110,000,000
Credit Suisse First Boston Corporation 35,000,000 70,000,000
X.X. Xxxxxx Securities Inc. $ 10,000,000 $ 20,000,000
Total $100,000,000 $200,000,000
15
