EXHIBIT 1.1
6,620,000 ORDINARY SHARES, NO PAR VALUE PER SHARE
UTI WORLDWIDE INC.
UNDERWRITING AGREEMENT
December 17, 2004
Credit Suisse First Boston LLC
Bear, ▇▇▇▇▇▇▇ & Co. Inc.,
As Representatives ("REPRESENTATIVES") of the Several Underwriters,
c/o Credit Suisse First Boston LLC
Eleven ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
1. Introductory. On the Closing Date (as defined below), United
Service Technologies Limited, a British Virgin Islands corporation ("UNISERV"),
as successor to Supply Solutions Limited, a British Virgin Islands corporation
("SUPPLY SOLUTIONS"), pursuant to the Merger (as defined below), will enter
into, with each of Credit Suisse First Boston International ("CSFBI") and Bear
▇▇▇▇▇▇▇ International Limited ("BSIL"), certain option and loan transactions
(the "COLLAR TRANSACTIONS") covering initially 6,620,000 ordinary shares (the
"ORDINARY SHARES"), no par value per share, of UTi Worldwide Inc., a British
Virgin Islands corporation (the "COMPANY"), which may be increased to cover up
to an additional 993,000 Ordinary Shares pursuant to the terms of the Collar
Transactions. In connection with hedging its exposure under the Collar
Transactions, CSFBi and BSIL, or their respective affiliates (collectively, the
"DEALERS") propose to borrow and sell to the several Underwriters named in
Schedule I hereto (the "UNDERWRITERS") 5,743,000 Ordinary Shares (the "FIRM
SECURITIES") and up to an additional 861,000 Ordinary Shares (the "OPTIONAL
SECURITIES") if the Underwriters exercise their option to cover over-allotments
in connection with the underwritten offering of the Firm Securities as set forth
under Section 3 below. Up to 4,403,057 of the Firm Securities (the "AFFILIATED
LOANED SHARES") will be borrowed from certain lenders affiliated with the
Company named in Schedule II hereto (the "AFFILIATED LENDERS"). The Firm
Securities and the Optional Securities, which are to be borrowed by the Dealers,
are herein collectively called the "OFFERED SECURITIES".
In addition, the Dealers will borrow from time to time an additional
877,000 (or up to 1,009,000 if the Underwriters have exercised their option to
cover over-allotments in connection with the underwritten offering) Ordinary
Shares (the "ADDITIONAL SECURITIES"), which the Dealers will sell under the
Registration Statement (as defined below) pursuant to the Registration Rights
Agreement dated as of November 23, 2004, as amended by Amendment No. 1 to the
Registration Rights Agreement dated as of December 17, 2004 among the Company,
Uniserv and, with respect to certain provisions, the Dealers (the "REGISTRATION
RIGHTS AGREEMENT"), in connection with the Collar Transactions. The Additional
Securities will not be included in the offering of the Offered Securities to be
underwritten by the Underwriters, and the Dealers will not sell any Additional
Securities through the underwriting syndicate formed by the Underwriters to
offer the Offered Securities.
1
Uniserv will enter into the Collar Transactions to finance the
payment to certain of its shareholders of Uniserv in connection with the merger
(the "MERGER") of Supply Solutions and Uniserv in accordance with the Plan of
Merger in terms of sections 76 to 79 of the International Business Companies Act
1984 (Cap 291) of the British Virgin Islands (the "PLAN OF MERGER"), which was
approved by the sole shareholder of Supply Solutions on November 22, 2004 and by
the shareholders of Uniserv on December 15, 2004, and sets out certain terms and
conditions for the cancellation of Uniserv shares held by certain Uniserv
shareholders (the "RESOLUTIVE CONDITIONS"). As set forth in the Plan of Merger,
the Resolutive Condition (as defined in the Plan of Merger) relates to, among
other things, the consummation of the sale of the Firm Securities contemplated
in this Agreement.
Uniserv, the Company and the Dealers hereby agree with the
Underwriters as follows:
2. Representations and Warranties. (a) The Company represents and
warrants to, and agrees with, the several Underwriters and the Dealers that:
(i) The Company meets the requirements for use of Form
S-3 under the Act and a registration statement (No. 333-120040) on
Form S-3 relating to the Offered Securities and the Additional
Securities, including a form of prospectus, has been filed with the
Securities and Exchange Commission ("COMMISSION") and has been
declared effective under the Securities Act of 1933 ("ACT") and is
not proposed to be amended. For purposes of this Agreement,
"EFFECTIVE TIME" with respect to the such registration statement
means, the date and time as of which such registration statement was
declared effective by the Commission. "EFFECTIVE DATE" with respect
to the initial registration statement means the date of the
Effective Time thereof. The registration statement, as amended at
its Effective Time, including all documents incorporated by
reference therein, and deemed to be a part of the registration
statement as of the Effective Time, is hereinafter referred to as
the "REGISTRATION STATEMENT". A base prospectus, dated December 3,
2004, relating to the Offered Securities and Additional Securities,
has been filed with the Commission pursuant to and in accordance
with Rule 424(b) ("RULE 424(B)") under the Act ("BASE PROSPECTUS").
A preliminary prospectus supplement, dated December 3, 2004,
containing the preliminary terms of the offering of the Offered
Securities and the Additional Securities, has been filed with the
Commission pursuant to and in accordance with Rule 424(b) under the
Act and used prior to the execution and delivery of this Agreement
(the "PRELIMINARY PROSPECTUS SUPPLEMENT"). A final prospectus
supplement containing the final terms of the offering of the Offered
Securities and the Additional Securities has been prepared and will
be filed with the Commission in the form first used to confirm sales
of Offered Securities pursuant to and in accordance with Rule 424(b)
under the Act (the "FINAL PROSPECTUS SUPPLEMENT"). The Base
Prospectus as supplemented by the Final Prospectus Supplement is
hereinafter referred to as the "PROSPECTUS," in each case including
all documents incorporated by reference therein. No document has
been or will be prepared or distributed by the Company in reliance
on Rule 434 under the Act. The Registration Statement, at the
Effective Time, meets the requirement set forth in Rule 415(a).
(ii) (A) On the Effective Date of the Registration
Statement, and on the date of this Agreement, the Registration
Statement conformed in all material respects to the requirements of
the Act and the rules and regulations of the Commission ("RULES AND
REGULATIONS") and did not include 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
2
therein not misleading, (B) at the time of filing of the Prospectus
pursuant to Rule 424(b), the Registration Statement and the
Prospectus will conform, in all material respects to the
requirements of the Act and the Rules and Regulations, and neither
of such documents includes, or will include, any untrue statement of
a material fact or omits, or will omit, to state any 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, in the case of the Prospectus) not misleading and (C) on any
Closing Date (as defined below) and on any date on which a
Prospectus relating to the Additional Securities is required to be
delivered or a sale of Additional Securities is settled (a "HEDGE
PROSPECTUS DATE"), the Registration Statement and the Prospectus
will conform in all material respects to the requirements of the Act
and the Rules and Regulations and will not include any untrue
statement of material fact and will not omit to state any 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, in the case of the Prospectus) not misleading. The
preceding sentence does not apply to statements in or omissions from
a Registration Statement or the Prospectus based upon written
information furnished to the Company by the Dealers or any
Underwriter through the Representatives, or the Affiliated Lenders
or Uniserv, in each case specifically for use therein.
(iii) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the British
Virgin Islands, with power and authority (corporate and other) to
own its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business as a
foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its
business as described in the Prospectus requires such qualification
except where the failure to be in good standing or to be so
qualified would not have a material adverse effect on the condition
(financial or other), business, properties or results or operations
of the Company and its subsidiaries, taken as a whole ("MATERIAL
ADVERSE EFFECT"),
(iv) Each Significant Subsidiary of the Company as
defined in Regulation S-X, Rule 102 (each, a "SIGNIFICANT
SUBSIDIARY," and together , the "SIGNIFICANT SUBSIDIARIES") of the
Company are listed in Schedule IV hereto. Each Significant
Subsidiary has been duly incorporated and is an existing corporation
in good standing under the laws of the jurisdiction of its
incorporation, with power and authority (corporate and other) to own
its properties and conduct its business as described in the
Prospectus; each Significant Subsidiary of the Company is duly
qualified to do business as a foreign corporation in good standing
in all other jurisdictions in which its ownership or lease of
property or the conduct of its business as described in the
Prospectus requires such qualification, except where the failure to
be in good standing or to be qualified would not have a Material
Adverse Effect; all of the issued and outstanding capital stock of
each Significant Subsidiary of the Company has been duly authorized
and validly issued and is fully paid and nonassessable; and the
capital stock of each Significant Subsidiary owned by the Company,
directly or through subsidiaries, is owned free from liens,
encumbrances and defects, except as disclosed in the Prospectus and
except (i) in cases where the outstanding shares have been pledged
pursuant to credit agreements with unaffiliated third-party
financial institutions that are either filed or incorporated by
reference into the Registration Statement or are otherwise not
material to the Company
3
or (ii) in countries where local law requires a nominee shareholder
or local resident to be the shareholder of record.
(v) The Offered Securities, the Additional Securities
and all other outstanding shares of capital stock of the Company
have been duly authorized and validly issued, fully paid and
nonassessable and conform to the description thereof contained in
the Prospectus.
(vi) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus under the
caption "Description of Capital Stock", as of the date set forth
therein, and the outstanding capital stock of the Company is as set
forth in the Final Prospectus Supplement under the caption "Selling
Shareholders", as of the date set forth therein. All of the issued
and outstanding shares of capital stock of the Company, including
the Offered Securities and the Additional Securities, are fully paid
and non-assessable and have been duly and validly authorized and
issued, in compliance with all applicable state, federal and foreign
securities laws and not in violation of or subject to any preemptive
or similar rights that entitle or will entitle any person to acquire
from the Company or any Significant Subsidiary upon the issuance or
sale thereof any Ordinary Shares, any other equity security of the
Company or any Significant Subsidiary and any security convertible
into, or exercisable or exchangeable for, any Ordinary Shares or
other such security (any "RELEVANT SECURITY"), except for such
rights as may have been fully satisfied or waived prior to the
Effective Date.
(vii) Except as disclosed in the Prospectus, there are
no contracts, agreements or understandings between the Company and
any person that would in connection with the offering contemplated
hereby give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment.
(viii) Except as disclosed in the Prospectus, there are
no contracts or other documents (including, without limitation, any
voting agreement) that are required to be described in the
Registration Statement and the Prospectus or filed as exhibits to
the Registration Statement by the Act, the Exchange Act or the
Regulations which have not been so described or incorporated by
reference therein or filed.
(ix) There are no contracts, agreements or
understandings between the Company and any person granting such
person the right to require the Company to file a registration
statement under the Act with respect to any securities of the
Company owned or to be owned by such person in connection with the
registration of the Offered Securities, except the Registration
Rights Agreement and that certain Affiliated Share Lender
Registration Rights Agreement, dated November 23, 2004, by and among
the Company and the shareholders of the Company party thereto, and
such as have been waived.
(x) The Offered Securities and Additional Securities are
listed on the Nasdaq Stock Market's National Market.
(xi) The Company has not taken nor will it take, and, to
the knowledge of the Company, none of its affiliates (within the
meaning of Rule 144 under the Act) has
4
taken, directly or indirectly, any action designed to cause or
result in, or which constitutes or which might reasonably be
expected to constitute, the stabilization or manipulation of the
price of the Ordinary Shares to facilitate the sale or resale of the
Offered Securities; provided that the Company makes no statement
with respect to Uniserv or the Affiliated Lenders.
(xii) The Company has not prior to the date hereof made
any offer or sale of any securities which could be "integrated" with
the offer and sale of the Offered Securities pursuant to the
Registration Statement. Except as disclosed in the Registration
Statement and the Prospectus, the Company has not sold or issued any
Relevant Security during the six-month period preceding the date of
the Prospectus, including but not limited to any sales pursuant to
Rule 144A or Regulations D or S under the Act, other than Ordinary
Shares issued upon the exercise of options, shares and other rights
issued pursuant to employee share incentive plans or trusts, stock
option plans or employee stock purchase plans that are disclosed in
the Registration Statement, the Prospectus or the notes to the
financial statements incorporated therein and other than Ordinary
Shares issued or issuable in connection with acquisition
transactions consummated prior to the Effective Date that are
disclosed in the Registration Statement or the Prospectus.
(xiii) No consent, approval, authorization, or order of,
or filing with, any governmental agency or body or any court is
required to be obtained or made by the Company for the performance
by the Company of its obligations under this Agreement in connection
with the sale of the Offered Securities and the Additional
Securities contemplated hereby, except (i) such as may be required
under the Act, (ii) such as may be required under the blue sky laws
of any jurisdiction, (iii) such as relate to the review of the
transactions by the NASD, (iv) such other consents, approvals,
authorizations, orders or filings as have been obtained or made or
(v) such consent, approval, authorization, or order or filing where
the failure to obtain or make such consent, approval, authorization
or order or filing would not have a material adverse effect on the
ability of the Underwriters to sell the Offered Securities or the
ability of the Dealers to sell the Additional Securities as
contemplated hereby.
(xiv) Except as disclosed in the Prospectus, under
current laws and regulations of the British Virgin Islands and any
political subdivision thereof, all dividends and other distributions
declared and payable on the Offered Securities and the Additional
Securities may be paid by the Company to the holder thereof in
United States dollars and freely transferred out of the British
Virgin Islands and all such payments made to holders thereof who are
non-residents of the British Virgin Islands will not be subject to
income, withholding or other taxes under laws and regulations of the
British Virgin Islands or any political subdivision or taxing
authority thereof or therein and will otherwise be free and clear of
any other tax, duty, withholding or deduction in the British Virgin
Islands or any political subdivision or taxing authority thereof or
therein and without the necessity of obtaining any governmental
authorization in the British Virgin Islands or any political
subdivision or taxing authority thereof or therein.
(xv) The execution, delivery and performance of this
Agreement and the performance by the Company of its obligations in
connection with the transactions herein contemplated, do not and
will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, (i) any statute, any
rule, regulation
5
or order of any governmental agency or body or any court, domestic
or foreign, having jurisdiction over the Company or any Significant
Subsidiary of the Company or any of their properties, or (ii) any
agreement or instrument to which the Company or any such Significant
Subsidiary is a party or by which the Company or any such
Significant Subsidiary is bound or to which any of the properties of
the Company or any such Significant Subsidiary is subject, or (iii)
the charter or by-laws of the Company or any such Significant
Subsidiary, except in the case of clauses (i) and (ii) for such
breaches, violations or default as would not have a Material Adverse
Effect.
(xvi) This Agreement has been duly authorized, executed
and delivered by the Company.
(xvii) Except as disclosed in the Prospectus, the
Company and its Significant Subsidiaries have good and marketable
title to all material real properties and all other properties and
assets owned by them, in each case free from liens, encumbrances and
defects that would materially affect the value thereof or materially
interfere with the use made thereof by them; and except as disclosed
in the Prospectus, the Company and its Significant Subsidiaries hold
any material leased real or personal property under valid and
enforceable leases in each case, subject to such exceptions as,
individually or in the aggregate, do not and are not reasonably
likely to have a Material Adverse Effect.
(xviii) Except as disclosed in the Prospectus, the
Company and its Significant Subsidiaries possess adequate
certificates, authorities or permits issued by appropriate
governmental agencies or bodies necessary to conduct the business
now operated by them as described in the Prospectus and have not
received any notice of proceedings relating to the revocation or
modification of any such certificate, authority or permit that, if
determined adversely to the Company or any of its Significant
Subsidiaries, would individually or in the aggregate have a Material
Adverse Effect.
(xix) No labor dispute with the employees of the Company
or any Significant Subsidiary exists or, to the knowledge of the
Company, is imminent that would have a Material Adverse Effect.
(xx) Except as disclosed in the Prospectus, the Company
and its Significant Subsidiaries own, possess or can acquire on
commercially reasonable terms, adequate trademarks, trade names and
other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property
(collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary to conduct
the business now operated by them, or presently employed by them as
described in the Prospectus and have not received any notice of
infringement of or conflict with asserted rights of others with
respect to any intellectual property rights that, if determined
adversely to the Company or any of its Significant Subsidiaries,
would individually or in the aggregate have a Material Adverse
Effect.
(xxi) Except as disclosed in the Prospectus, neither the
Company nor any of its Significant Subsidiaries is in violation of
any statute, any rule, regulation, decision or order of any
governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic
substances or relating to the
6
protection or restoration of the environment or human exposure to
hazardous or toxic substances (collectively, "ENVIRONMENTAL LAWS"),
to its knowledge owns or operates any real property contaminated
with any substance that is in violation of any environmental laws,
to its knowledge is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to
any claim relating to any environmental laws, in each case which
violation, contamination, liability or claim would individually or
in the aggregate have a Material Adverse Effect; and the Company is
not aware of any pending investigation which would reasonably be
expected to lead to such a claim.
(xxii) Except as disclosed in the Prospectus, there are
no pending actions, suits or proceedings to which the Company or any
of its Significant Subsidiaries is a party, or of which any of their
respective properties is subject that, if determined adversely to
the Company or any of its Significant Subsidiaries, would
individually or in the aggregate have a Material Adverse Effect, or
would materially and adversely affect the ability of the Company to
perform its obligations under this Agreement; and, to the Company's
knowledge, no such actions, suits or proceedings are threatened or
contemplated.
(xxiii) Deloitte & Touche LLP, who have audited the
financial statements and related financial statement schedule
included or incorporated by reference in the Registration Statement
and the Prospectus, are independent certified public accountants
with respect to the Company as required by the Act and the
Regulations.
(xxiv) The consolidated financial statements included or
incorporated by reference in each Registration Statement and the
Prospectus present fairly in all material respects the financial
position of the Company and its consolidated subsidiaries as of the
dates shown and their results of operations and cash flows for the
periods shown, and such financial statements have been prepared in
conformity with the generally accepted accounting principles in the
United States applied on a consistent basis, except as disclosed in
the Registration Statement and except that any financial statements
for any interim periods may be subject to normal year-end
adjustments.
(xxv) No pro forma or as adjusted financial statements
are required to be included or incorporated by reference in the
Registration Statement and the Prospectus in accordance with
Regulation S-X.
(xxvi) The statistical and market-related data included
or incorporated by reference in the Registration Statement and the
Prospectus are based on or derived from sources which the Company
reasonably believes to be reliable and accurate, and such data are
not inconsistent with the sources from which they are derived.
(xxvii) Except as disclosed in the Prospectus, since the
respective dates as of which information is disclosed in the
Prospectus there has been no material adverse change, nor any
development or event involving a prospective material adverse
change, in the condition (financial or other), business, properties
or results of operations of the Company and its subsidiaries taken
as a whole, and, except as disclosed in or contemplated by the
Prospectus, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital
stock.
7
(xxviii) The Company is subject to the reporting
requirements of either Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 and files reports with the Commission on the
Electronic Data Gathering, Analysis, and Retrieval (▇▇▇▇▇) system.
(xxix) No relationship, direct or indirect, exists
between or among the Company or its Significant Subsidiaries, on the
one hand, and the Affiliated Lenders and the directors, officers,
shareholders, customers or suppliers of the Company or its
Significant Subsidiaries, on the other hand, which is required by
the Act, the Exchange Act or the Regulations to be described in the
Registration Statement and the Prospectus which is not so described.
To the Company's knowledge, there are no outstanding loans, advances
(except normal advances for business expenses in the ordinary course
of business) or guarantees of indebtedness by the Company to or for
the benefit of any of the officers or directors of the Company or
any of their respective family members which are required by the Act
or the Regulations to be disclosed in the Registration Statement and
the Prospectus which are not so disclosed.
(xxx) The Company and its Significant Subsidiaries
maintain systems of internal accounting controls sufficient to
provide reasonable assurances that (i) transactions are executed in
accordance with management's general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of
financial statements in conformity with US GAAP and to maintain
accounting for assets; (iii) the access to assets is permitted only
in accordance with management's general or specific authorization;
and (iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences.
(xxxi) The Company is not and, after giving effect to
the offering and sale of the Offered Securities, will not be an
"investment company" as defined in the Investment Company Act of
1940.
(xxxii) No "prohibited transaction" (as defined in
section 406 of the Employee Retirement Income Security Act of 1974,
as amended, including the regulations and published interpretations
thereunder ("ERISA"), or section 4975 of the Internal Revenue Code
of 1986, as amended from time to time (the "CODE")), or "accumulated
funding deficiency" (as defined in section 302 of ERISA) or any of
the events set forth in section 4043(b) of ERISA (other than events
with respect to which the 30-day notice requirement under section
4043 of ERISA has been waived) has occurred with respect to any
employee benefit plan which, individually or in the aggregate, would
have a Material Adverse Effect; each employee benefit plan for which
the Company would have any liability is in compliance in all
material respects with applicable law, including ERISA and the Code;
the Company has not incurred and does not expect to incur liability
under Title IV of ERISA with respect to the termination of, or
withdrawal from, any "pension plan"; and each plan for which the
Company would have any liability that is intended to be qualified
under section 401(a) of the Code is so qualified and nothing has
occurred, whether by action or by failure to act, which could cause
the loss of such qualification.
8
(xxxiii) Each of the Company and the Significant
Subsidiaries has accurately prepared and timely filed or timely
requested extensions to file all Federal, state, local, foreign and
other tax returns that are required to be filed by it except for any
filings the failure of which would not have a Material Adverse
Effect and has paid or made provision for the payment of all taxes,
assessments, governmental or other similar charges, including
without limitation, all sales and use taxes and all taxes which the
Company and each of the Significant Subsidiaries is obligated to
withhold from amounts owing to employees, creditors and third
parties, with respect to the periods covered by such tax returns
(whether or not such amounts are shown as due on any tax return)
except where the failure to so pay would not have a Material Adverse
Effect or any amounts the Company is contesting in good faith. No
deficiency assessment with respect to a proposed adjustment of the
Company's or any of the Significant Subsidiaries' Federal, state,
local or foreign taxes is pending or, to the best of the Company's
knowledge, threatened which would reasonably be expected to have a
Material Adverse Effect. There is no material tax lien, whether
imposed by any Federal, state, local, foreign or other taxing
authority, outstanding against the assets, properties or business of
the Company or any of the Significant Subsidiaries.
(xxxiv) There is and has been no failure on the part of
the Company or, to the knowledge of the Company, any of the
Company's directors or officers, in their capacities as such, to
comply in all material respects with any applicable provision of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and the rules and regulations promulgated
in connection therewith (the "▇▇▇▇▇▇▇▇-▇▇▇▇▇ ACT"), that are
currently in effect and require compliance on or before the date
hereof including, without limitation, Section 402 related to loans
and Sections 302 and 906 related to certifications.
(xxxv) Neither the Company nor any of its Significant
Subsidiaries nor, to the knowledge of the Company, any director,
officer, agent, employee or affiliate of the Company or any of its
Significant Subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S.
Treasury Department.
(xxxvi) Neither the Company nor any of its Significant
Subsidiaries nor, to the knowledge of the Company, any director,
officer, employee, or other agent of the Company or any of its
Significant Subsidiaries has (i) used any corporate funds of the
Company or any of its Significant Subsidiaries for any unlawful
contribution, gift, entertainment or other unlawful expense relating
to political activity or (ii) made any unlawful payment to any
foreign or domestic government official or employee from corporate
funds in violation of the provisions of the Foreign Corrupt
Practices Act of 1977 ("FCPA"). The Company, its Significant
Subsidiaries and, to the knowledge of the Company, its affiliates
have conducted their businesses in compliance with the FCPA and have
instituted and maintain policies and procedures designed to ensure,
and which are reasonably expected to continue to ensure, continued
compliance therewith.
(b) Uniserv represents and warrants to, and agrees with, the
several Underwriters, and the Dealers that:
(i) (A) on the Effective Date and on the date of this
Agreement, the Registration Statement conformed in all respects to
the requirements of the Act and the Rules and Regulations and did
not include any untrue statement of a material fact or
9
omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, (B) at the
time of filing of the Prospectus pursuant to Rule 424(b) (if such
filing is required), the Registration Statement and the Prospectus
will conform, in all respects to the requirements of the Act and the
Rules and Regulations, and neither of such documents includes, or
will include, any untrue statement of a material fact or omits, or
will omit, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and (C)
on any Closing Date (as defined below) and on any Hedge Prospectus
Date the Registration Statement and the Prospectus, will conform in
all respects to the requirements of the Act and the Rules and
Regulations thereunder and will not include any untrue statement of
material fact and will not omit to state any material fact required
to be stated herein or necessary to make the statements therein not
misleading. The preceding sentence, including the statements
contained in clause (B) above, applies only to the extent that any
statements in or omissions from a Registration Statement or the
Prospectus are based on written information furnished to the Company
by Uniserv specifically for use therein. Further, the statements set
forth in the Prospectus under the captions "Selling Shareholders"
and "Plan of Distribution," insofar as they purport to describe the
provisions of the documents and arrangements referred to therein,
are accurate in all material respects.
(ii) Uniserv has been duly incorporated and is an existing
corporation in good standing under the laws of the British Virgin
Islands, with power and authority (corporate and other) to own its
assets and conduct its business as described in the Prospectus,
except where the failure to be in good standing would not have a
material adverse effect on the condition (financial or other),
business, properties or results of operations of Uniserv.
(iii) As of the date of this Agreement and as of the First
Closing Date, Uniserv has no subsidiaries.
(iv) Uniserv has good, valid and marketable title to all such
Ordinary Shares with full right, power and authority to sell, assign
and transfer all such Ordinary Shares.
(v) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between Uniserv and any
person that would give rise to a valid claim against the Company or
any Underwriter for a brokerage commission, finder's fee or other
like payment.
(vi) This Agreement and the Plan of Merger have been duly
authorized, executed and delivered by or on behalf of Uniserv.
Uniserv has full right, power and authority to perform its
obligations hereunder and thereunder.
(vii) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is
required to be obtained or made by Uniserv for the consummation of
the transactions contemplated by this Agreement in connection with
the sale of the Offered Securities and the Additional Securities
contemplated hereby, except (i) such as may have been obtained under
the Act, (ii) such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and
10
distribution of the Offered Securities by the Underwriters and the
distribution of the Additional Securities by the Dealers, (iii) such
as relate to the review of the transaction by the NASD, (iv) such
other approvals as have been obtained or (v) such consent, approval,
authorization or order where the failure to obtain such consent,
approval, authorization or order would not have a material adverse
effect on the ability of the Underwriters to sell the Offered
Securities or the ability of the Dealers to sell the Additional
Securities as contemplated hereby.
(viii) The execution, delivery and performance of this
Agreement and the consummation of the transactions herein
contemplated will not result in a breach or violation of any of the
terms and provisions of, or constitute a default under, (i) any
statute, any rule, regulation or order of any governmental agency or
body or any court, domestic or foreign, having jurisdiction over
Uniserv or any of its assets, (ii) any agreement or instrument to
which Uniserv is a party or by which Uniserv is bound or to which
any of the assets of Uniserv is subject, or (iii) the constitution
of Uniserv, except in the case of clauses (i) and (ii), for such
breaches, violations or defaults as would not have a material
adverse effect on the condition (financial or otherwise), business,
properties or results of operations of Uniserv.
(ix) The execution, delivery and performance of the Plan of
Merger and the consummation of the transactions set forth therein,
will not result in a breach or violation of any of the terms and
provisions of, or constitute a default under, (i) any statute, any
rule, regulation or order of any governmental agency or body or any
court, domestic or foreign, having jurisdiction over Uniserv or any
of its assets, or (ii) any agreement or instrument to which Uniserv
is a party or by which Uniserv is bound or to which any of the
assets of Uniserv is subject, or (iii) the constitution of Uniserv,
except in the case of clauses (i) and (ii) for such breaches,
violations or defaults as would not have a material adverse effect
on the condition (financial or otherwise), business, properties or
results of operations of Uniserv.
(x) No consent, approval, authorization or order of, or filing
with, any governmental agency or body or any court was required to
be obtained or made by Uniserv for the consummation of the
transactions contemplated by the Plan of Merger, except such as have
been obtained under the laws, rules or regulations of the British
Virgin Islands and South Africa (including receipt of a copy of the
certificate of merger issued by the Registry of Corporate Affairs in
the British Virgin Islands in connection with the Merger under the
laws, rules or regulations of the British Virgin Islands).
(xi) Uniserv has not taken and will not take, directly or
indirectly, any action designed to, or that might be reasonably
expected to, cause or result in stabilization or manipulation of the
price of the Ordinary Shares to facilitate the sale or resale of the
Firm Securities or Additional Securities, if any.
(xii) Uniserv does not know of any material event or
occurrence with respect to itself, the Plan of Merger or the Collar
Transactions required to be disclosed in the Registration Statement
or the Prospectus that is not disclosed in the Registration
Statement or the Prospectus, as applicable, and Uniserv's decision
to enter into the Collar Transactions was not based on any material
non-public information concerning the Company or its subsidiaries.
11
(xiii) The transactions contemplated by this Agreement, the
Plan of Merger and the Collar Transactions materially comply and
materially will comply with all laws, rules and regulations of all
governmental agencies including the U.S. securities laws.
(xiv) Uniserv does not know of any legal or governmental
proceeding pending relating to the Merger, the Collar Transactions,
the Plan of Merger and the consummation of the transactions set
forth therein to which Uniserv is a party or of which any property
or assets of Uniserv is the subject which, singularly or in the
aggregate, if determined adversely to Uniserv, would have a material
adverse effect or would prevent or adversely affect the ability of
Uniserv to perform its obligations under this Agreement; and to
Uniserv's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(c) Each Underwriter represents and warrants to, and agrees with,
the Company and Uniserv that:
(i) it has not offered or sold, and, prior to the expiration
of the period of six months from the closing date for the issue of
the Ordinary Shares, will not offer or sell any Ordinary Shares to
persons in the United Kingdom, except to those persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purpose of
their businesses or otherwise in circumstances which have not
resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities
Regulations 1995;
(ii) it has complied and will comply with all applicable
provisions of the Financial Services ▇▇▇ ▇▇▇▇ and all applicable
provisions of the Financial Services and Markets Act 2000 (the
"FSMA") with respect to anything done by it in relation to the
Ordinary Shares in, from or otherwise involving the United Kingdom;
(iii) it has only communicated or caused to be communicated
and will only communicate or cause to be communicated any invitation
or inducement to engage in investment activity (within the meaning
of the FSMA) received by it in connection with the issue or sale of
the Ordinary Shares in circumstances in which Section 21(1) of the
FSMA does not apply to the Company;
(iv) it will not offer or sell any Ordinary Shares directly or
indirectly in Japan or to, or for the benefit of any Japanese person
or to others, for re-offering or re-sale directly or indirectly in
Japan or to any Japanese person, except in each case pursuant to an
exemption from the registration requirements of, and otherwise in
compliance with, the Securities and Exchange Law of Japan and any
other applicable laws and regulations of Japan. For purposes of this
paragraph, "Japanese person" means any person resident in Japan,
including any corporation or other entity organized under the laws
of Japan;
(v) it and each of its affiliates have not (i) offered or
sold, and will not offer or sell, the Ordinary Shares by means of
any document, to persons in Hong Kong other than persons whose
ordinary business it is to buy or sell shares or debentures, whether
as principal or agent, or in circumstances which do not constitute
an offer to the
12
public within the meaning of the Companies Ordinance (Cap. 32) of
Hong Kong or (ii) issued or had in its possession for the purposes
of issue, and will not issue or have in its possession for the
purposes of issue, any invitation, document or advertisement
relating to the Ordinary Shares in Hong Kong (unless permitted to do
so under the securities laws of Hong Kong) other than with respect
to the Ordinary Shares intended to be disposed of outside Hong Kong
or only to persons whose business involves the acquisition, disposal
or holding of securities, whether as principal or agent;
(vi) the Prospectus or any other offering material relating to
the Ordinary Shares has not been and will not be registered as a
prospectus with the Registrar of Companies and Businesses in
Singapore, and the Ordinary Shares will be offered in Singapore
pursuant to an exemption invoked under Section 106C and Section 106D
of the Companies Act, Chapter 50 of Singapore, or the Singapore
Companies Act. Accordingly, the Ordinary Shares may not be offered
or sold, nor may the Prospectus or any other offering material
relating to the Ordinary Shares be circulated or distributed,
directly or indirectly, to the public or any member of the public in
Singapore other than (a) to an institutional investor or other
person specified in Section 106C of the Singapore Companies Act, (b)
to a sophisticated investor, and in accordance with the conditions
specified in Section 106D of the Singapore Companies Act or (c)
otherwise pursuant to, and in accordance with the conditions of, any
other applicable provision of the Singapore Companies Act;
(vii) it is aware of the fact that no German selling
prospectus (Verkaufsprospekt) has been or will be published in
respect of the sale of the Ordinary Shares and that it will comply
with the Securities Selling Prospectus Act of the Federal Republic
of Germany (Wertpapier-Verkaufsprospektgesetz). In particular, each
underwriter has undertaken not to engage in a public offering in the
Federal Republic of Germany with respect to any Ordinary Shares
otherwise than in accordance with the Securities Selling Prospectus
Act and any other act replacing or supplementing the Securities
Selling Prospectus Act and all other applicable laws and
regulations;
(viii) the Ordinary Shares are being issued and sold outside
the Republic of France and that, in connection with their initial
distribution, it has not offered or sold and will not offer or sell,
directly or indirectly, any Ordinary Shares to the public in the
Republic of France, and that it has not distributed and will not
distribute or cause to be distributed to the public in the Republic
of France the Prospectus or any other offering material relating to
the Ordinary Shares, and that such offers, sales and distributions
have been and will be made in the Republic of France only to (a)
qualified investors (investisseurs qualifies) and/or (b) a
restricted group of investors (cercle restreint d'investisseurs),
all as defined in Article L.411-2 of the Monetary and Financial Code
and decret no. 98-880 dated 1st October, 1998; and
(ix) the Ordinary Shares may not be offered, sold, transferred
or delivered in or from the Netherlands as part of their initial
distribution or at any time thereafter, directly or indirectly,
other than to banks, pension funds, insurance companies, securities
firms, investment institutions, central governments, large
international and supranational institutions and other comparable
entities, including, among others, treasuries and finance companies
of large enterprises, which trade or invest
13
in securities in the course of a profession or trade. Individuals or
legal entities who or which do not trade or invest in securities in
the course of their profession or trade may not participate in the
offering of the Ordinary Shares, and the Prospectus or any other
offering material relating to the Ordinary Shares may not be
considered an offer or the prospect of an offer to sell or exchange
the Ordinary Shares.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Dealers agree to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Dealers, at a purchase price of $65.00 per share (which shall be the
same price at which the Representatives offer the Offered Securities to the
public), the respective numbers of Firm Securities set forth opposite the names
of the Underwriters in Schedule I hereto.
The Dealers will deliver the Firm Securities to the Representatives for
the accounts of the Underwriters, against payment of the purchase price in
Federal (same day) funds by official bank check or checks or wire transfer to an
account at a bank acceptable to the Representatives drawn to the order of [ ]
at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ at 11:30 A.M., New York City time, on
December 22, 2004, or at such other time not later than seven full business days
thereafter as the Representatives and the Dealers determine, such time being
herein referred to as the "FIRST CLOSING DATE". For purposes of Rule 15c6-1
under the Securities Exchange Act of 1934, the First Closing Date (if later than
the otherwise applicable settlement date) shall be the settlement date for
payment of funds and delivery of securities for all the Offered Securities sold
pursuant to the offering.
In addition, upon written notice from the Representatives given to the
Company, Uniserv and the Dealers from time to time not more than 30 days
subsequent to the date of the Final Prospectus Supplement, the Underwriters may
purchase all or less than all of the Optional Securities at the purchase price
per Security to be paid for the Firm Securities. The Dealers agree to sell to
the Underwriters the number of shares of Optional Securities specified in such
notice and the Underwriters agree, severally and not jointly, to purchase such
Optional Securities. Such Optional Securities shall be purchased for the account
of each Underwriter in the same proportion as the number of Firm Securities set
forth opposite such Underwriter's name bears to the total number of Firm
Securities (subject to adjustment by the Representatives to eliminate fractions)
and may be purchased by the Underwriters only for the purpose of covering
over-allotments made in connection with the sale of the Firm Securities. No
Optional Securities shall be sold or delivered unless the Firm Securities
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Optional Securities or any portion thereof may be exercised from
time to time and to the extent not previously exercised may be surrendered and
terminated at any time upon notice by the Representatives to the Dealers and
Uniserv.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by the
Representatives but shall be not be earlier than three business days, and not be
later than five full business days after written notice of election to purchase
Optional Securities is given, provided, however, the Optional Closing Date and
the First Closing Date may be the same date so long as such written notice is
given no later than one full business day prior to the First Closing Date. The
Dealers will deliver the Optional Securities being purchased on each Optional
Closing Date to the Representatives for the accounts of the several
Underwriters, against payment of the purchase price in Federal (same day) funds
by official bank check or checks or wire transfer to an account at a bank
acceptable to the Representatives drawn to the order of the Dealers, at the
office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇.
14
In connection with the purchase of Firm Securities, the Dealers will
borrow, on the First Closing Date, and sell under the Registration Statement
from time to time, Additional Securities consisting of 877,000 Ordinary Shares.
If, and to the extent, the Underwriters exercise their option to purchase
Optional Securities on any Closing Date, the Dealers will increase the number of
Additional Securities by up to an additional 132,000 Ordinary Shares in
approximately the same proportion as the purchase of Optional Securities on such
Closing Date bears to the total number of Optional Securities available for
purchase by the Underwriters.
As compensation for the Underwriters' commitments hereunder, Uniserv
shall, on each Closing Date, pay to the Representatives for the Underwriters'
proportionate accounts the sum of (i) $2.925 per share times the total number of
Offered Securities purchased by the Underwriters on each such Closing Date and
(ii) $0.4875 per share times the increase in the Additional Shares on each such
Closing Date (or, if the First Closing Date, the number of Additional Shares on
the First Closing Date). Such payment shall be made on each Closing Date;
provided that the Underwriters, the Dealers and Uniserv agree that any such
amounts may be reduced by the amount the Dealers are obligated to fund as loans
under the Collar Transactions in relation to such Closing Date and the Dealers
shall separately pay the Representatives such amounts on behalf of Uniserv.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Offered Securities and the Dealers propose to
offer the Additional Securities for sale to the public as set forth in the
Prospectus.
5. Certain Agreements of the Company and Uniserv. (a) The Company agrees
with the several Underwriters, the Dealers and, with respect to the second
sentence of Section 5(a)(i) and Sections 5(a)(iv), 5(a)(v), 5(a)(vi) and
5(a)(viii), Uniserv, that:
(i) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b) not later than as
required by the rules and regulations of the Commission. The Company
will advise the Representatives and Uniserv promptly of any such
filing pursuant to Rule 424(b).
(ii) At any time prior to the later of the termination of the
offering of the Offered Securities by the Underwriters and the
period when a prospectus relating to the Offered Securities or the
Additional Securities is required to be delivered under the Act, the
Company will advise the Representatives promptly of any proposal to
amend or supplement the Registration Statement, or the Prospectus
and will not effect such amendment or supplementation without the
Representatives' consent, which consent shall not be unreasonably
withheld or delayed; and the Company will also advise the
Representatives promptly of any amendment or supplementation of the
Registration Statement or the Prospectus and of the institution by
the Commission of any stop order proceedings in respect of the
Registration Statement and will use its reasonable best efforts to
prevent the issuance of any such stop order and to obtain as soon as
practicable its lifting, if issued.
(iii) If, at any time prior to the later of the termination of
the offering of the Offered Securities by the Underwriters and the
period when a prospectus relating to the Offered Securities or the
Additional Securities is required to be delivered under the Act in
connection with sales by any Underwriter or Dealer any event occurs
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 to make the
15
statements therein, in the light of the circumstances under which
they were made, not misleading, or if it is necessary at any time to
amend the Prospectus to comply with the Act, the Company will
promptly notify the Representatives of such event and will promptly
prepare and file with the Commission, at Uniserv's expense, an
amendment or supplement which will correct such statement or
omission or an amendment which will effect such compliance. Neither
the Representatives' consent to, nor the Underwriters' delivery of,
any such amendment or supplement shall constitute a waiver of any of
the conditions set forth in Section 6.
(iv) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make
generally available to its securityholders an earnings statement
covering a period of at least 12 months beginning after the
Effective Date which will satisfy the provisions of Section 11(a) of
the Act. For the purpose of the preceding sentence, "AVAILABILITY
DATE" means the 45th day after the end of the fourth fiscal quarter
following the fiscal quarter that includes such Effective Date,
except that, if such fourth fiscal quarter is the last quarter of
the Company's fiscal year, "Availability Date" means the 90th day
after the end of such fourth fiscal quarter.
(v) At Uniserv's expense, at any time prior to the latest of
the termination of the offering of the Offered Securities by the
Underwriters and the period when a prospectus related to the Offered
Securities and the Additional Securities is required to be delivered
under the Act, the Company will furnish to the Dealers, the
Representatives and Uniserv copies of each Registration Statement
(which will be signed and will include all exhibits), each related
preliminary prospectus, and, so long as the Prospectus relating to
the Offered Securities or the Additional Securities is required to
be delivered under the Act in connection with sales by any
Underwriter or any dealer, the Prospectus and all amendments and
supplements to such documents, in each case in such quantities as
the Representatives and Uniserv reasonably request. The Prospectus
shall be so furnished on or prior to 5:00 P.M., New York time, on
the business day following (i) the execution and delivery of this
Agreement and, (ii) with respect to any amended or supplemented
prospectus relating to the Additional Securities, the filing of such
amended or supplemented prospectus with the Commission. All other
such documents shall be so furnished as soon as available. Uniserv
will pay the expenses of printing and distributing to the
Underwriters and the Dealers all such documents.
(vi) The Company will cooperate with the Representatives and
Uniserv and their respective counsel in arranging for the
qualification of the Offered Securities and the Additional
Securities for sale under (or obtain exemptions from the application
of) the laws of such jurisdictions as the Representatives designate
and continue such qualifications in effect so long as required for
the distribution; provided, however, that (i) in no event shall the
Company be required to maintain such qualification for more than one
year from the Effective Date and (ii) the Company shall not be
obligated to file any general consent to service of process in any
jurisdiction or to qualify as a foreign corporation or as a
securities dealer in any jurisdiction or to subject itself to
taxation in respect doing business in any jurisdiction in which it
is not otherwise so subject.
(vii) For the period specified below (the "LOCK-UP PERIOD")
the Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, any additional
Ordinary Shares or securities convertible into or exchangeable or
16
exercisable for Ordinary Shares, or publicly disclose the intention
to make any such offer, sale, pledge or disposition, without the
prior written consent of the Representatives, except (i) the
issuance of any securities upon the exercise, conversion or exchange
of options, warrants or convertible, exchangeable or other
securities outstanding on the date hereof, (ii) the grant of
options, warrants, restricted stock or other securities pursuant to
the terms of any employee plan, benefit or compensation arrangement
or employment agreement, (iii) the issuance of any security pursuant
to the exercise, conversion or exchange of any option, warrant or
other security issued pursuant to the terms of any employee plan,
benefit or compensation arrangement or employment agreement, (iv)
the issuance of any security pursuant to a dividend or dividend
reinvestment plan or (v) the issuance of any security in connection
with a bona fide merger, acquisition of businesses, technologies or
products, strategic relationships, reorganization, recapitalization
or change of control transaction or any similar bona fide
transaction involving the Company or in connection with financing
involving any of the foregoing (it being understood and agreed that
to the extent any third party is involved in any of the foregoing,
such third party shall be unaffiliated with the Company). The
Lock-Up Period will commence on the date hereof and will continue
and include the date 90 days after the date hereof or such earlier
date that the Representatives consent to in writing.
(viii) The Company agrees to cause the chief financial officer
and the general counsel of the Company to participate in weekly
telephonic due diligence sessions with representatives of each of
the Dealers and Uniserv and their respective counsel until the time
the Registrations Rights Agreement is terminated.
(b) Uniserv agrees with the several Underwriters, the Dealers
and, with respect to Section 5(b)(i) and 5(b)(ii), the Company, that:
(i) Uniserv will pay all expenses incident to the performance
of the obligations of Uniserv and the obligations of the Company,
Underwriters and Dealers under this Agreement in accordance with the
terms of the Registration Rights Agreement.
(ii) Uniserv will indemnify and hold harmless the
Underwriters, the Dealers and the Company against any documentary,
stamp or similar issue tax, including any interest and penalties, on
the sale of the Offered Securities and the Additional Securities and
on the execution and delivery of this Agreement. All payments to be
made by Uniserv hereunder shall be made without withholding or
deduction for or on account of any present or future taxes, duties
or governmental charges whatsoever unless Uniserv is compelled by
law to deduct or withhold such taxes, duties or charges. In that
event, Uniserv shall pay such additional amounts as may be necessary
in order that the net amounts received after such withholding or
deduction shall equal the amounts that would have been received if
no withholding or deduction had been made.
(iii) Uniserv agrees during the Lock-Up Period not to offer,
sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any Ordinary Shares of the Company or securities
convertible into or exchangeable or exercisable for any shares of
Securities, enter into a transaction which would have the same
effect, or enter into any swap, hedge or other arrangement that
transfers, in whole or part, any of the economic
17
consequences of ownership of the Securities, whether any such
aforementioned transaction is to be settled by delivery of the
Securities or such other securities, in cash or otherwise, or
publicly disclose the intention to make any such offer, sale, pledge
or disposition, or enter into any such transaction, swap, hedge or
other arrangement, without, in each case, the prior written consent
of the Representatives, other than, in each case, the Ordinary
Shares underlying the Collar Transactions. The Lock-Up Period will
commence on the date hereof and will continue and include the date
90 days after the date hereof or such earlier date that the
Representatives consent to in writing.
Notwithstanding the foregoing, during the Lock-Up
Period, Uniserv shall not be prohibited from (i) offering for
sale, selling, contracting to sell, pledging or otherwise
disposing of, directly or indirectly, any Ordinary Shares of
the Company or securities convertible into or exchangeable or
exercisable for any shares of Securities, or entering into a
transaction which would have the same effect, or entering into
any swap, hedge or other arrangement that transfers, in whole
or part, any of the economic consequences of ownership of the
Securities, where, in each case, the transferee or acquirer of
such interest is an affiliate of Uniserv, or (ii) entering
into monetization transactions similar to that contemplated by
the Collar Transactions with respect to Ordinary Shares of the
Company to the extent such monetization transactions are for
the purpose of funding expenses and dissenters rights related
to the Merger.
(iv) Uniserv will advise the Underwriters, the Dealers and the
Company promptly, and if requested by the Representatives, will
confirm such advice in writing, so long as delivery of a prospectus
relating to the Offered Securities or the Additional Securities is
required under the Act, of any material change in, or material
omission from, information in the Registration Statement or the
Prospectus relating to Uniserv, the Merger or the Collar
Transactions.
(v) Uniserv agrees that, so long as a prospectus relating to
the Additional Securities is required to be delivered by the
Dealers, on each date on which the Registration Statement or
Prospectus is amended or supplemented (other than by the filing with
the Commission of a document which is incorporated by reference
therein) after the Closing Date and at least once during each of the
Company's fiscal quarters ending January 31, 2005 and April 30, 2005
it will deliver, or cause to be delivered, to the Dealers,
supplemental opinions, certificates and letters confirming as of
such date the opinions, certificates and letters delivered on the
Closing Date pursuant to Section 6 hereof of ▇▇▇▇▇▇, Westwood &
Riegels and Cravath, Swaine & ▇▇▇▇▇ LLP. In connection with the
transactions contemplated by this Agreement, the Collar Transactions
and the Merger, Uniserv will comply with all applicable laws, rules
and regulations of any governmental agency, including the U.S.
securities laws.
6. Conditions of the Obligations of the Underwriters. The obligations of
the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and Uniserv herein, to the accuracy of the
statements of Company officers and Uniserv officers made pursuant to the
provisions hereof, to the
18
performance by the Company and Uniserv of their obligations hereunder and to the
following additional conditions precedent:
(a) The Representatives, the Dealers, the Company and Uniserv shall
have received a "cold comfort" letter in customary form from Deloitte &
Touche LLP, independent certified public accountants for the Company,
dated, respectively, as of the date of this Agreement and as of each
Closing Date, addressed to the Company, the Underwriters, the Dealers and
Uniserv and in form and substance satisfactory to the Representatives and
Underwriters' counsel.
(b) The Prospectus shall have been filed with the Commission in
accordance with the Rules and Regulations and Section 5(a)(i) of this
Agreement. Prior to such Closing Date, no stop order suspending the
effectiveness of a Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of Uniserv, the Company or the Representatives, shall be
contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement,
there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company or its
subsidiaries which, in the judgment of a majority in interest of the
Underwriters including the Representatives, is material and adverse and
makes it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered Securities;
(ii) any downgrading in the rating of any debt securities of the Company
by any "nationally recognized statistical rating organization" (as defined
for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review its rating of
any debt securities of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a
possible downgrading, of such rating); (iii) any change in U.S. or
international financial, political or economic conditions or currency
exchange rates or exchange controls as would, in the judgment of a
majority in interest of the Underwriters including the Representatives, be
likely to prejudice materially the success of the proposed issue, sale or
distribution of the Offered Securities or the Additional Securities,
whether in the primary market or in respect of dealings in the secondary
market; (iv) any material suspension or material limitation of trading in
securities generally on the Nasdaq National Stock Market, or any setting
of minimum prices for trading on such exchange; (v) or any suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market; (vi) any banking moratorium declared by U.S.
Federal or New York authorities; (vii) any major disruption of settlements
of securities or clearance services in the United States or (viii) any
attack on, outbreak or escalation of hostilities or act of terrorism
involving the United States, any declaration of war by Congress or any
other national or international calamity or emergency if, in the judgment
of a majority in interest of the Underwriters including the
Representatives, the effect of any such attack, outbreak, escalation, act,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment
for the Offered Securities.
(d) The Representatives and Dealers shall have received an opinion,
dated such Closing Date, of ▇▇▇▇▇▇, Westwood and Riegels, British Virgin
Islands counsel for the Company, in the form attached hereto as Exhibit A.
(e) The Representatives and Dealers shall have received an opinion,
dated such Closing Date, of Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, U.S.
counsel for the Company, in the form attached hereto as Exhibit B.
19
(f) The Representatives and the Dealers shall have received an
opinion from ▇▇▇▇▇▇, Westwood and Riegels, British Virgin Islands counsel
for Uniserv, in the form attached hereto as Exhibit C.
(g) The Representatives and Dealers shall have received an opinion,
dated such Closing Date of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, South African counsel
for Uniserv, in the form attached hereto as Exhibit D.
(h) The Representatives and Dealers shall have received an opinion,
dated such Closing Date, of Cravath, Swaine & ▇▇▇▇▇ LLP, U.S. counsel for
Uniserv, in the form attached hereto as Exhibit E.
(i) The Representatives and the Dealers shall have received from
Walkers, ▇▇▇▇▇▇ ▇▇▇▇▇▇ and, ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Underwriters, such opinion or opinions, dated such Closing Date, with
respect to the Registration Statement, the Prospectus and other related
matters as the Representatives may require, and Uniserv and the Company
shall have furnished to such counsel such documents as they reasonably
request for the purpose of enabling them to pass upon such matters.
(j) The Representatives and the Dealers shall have received a
certificate, dated such Closing Date, of the Chief Executive Officer or
any Vice President and a principal financial or accounting officer of the
Company in which such officers, shall state in their capacities such as
officers and on behalf of the Company that, to the best of their
knowledge: the representations and warranties of the Company in this
Agreement are true and correct; the Company has complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied hereunder at or prior to such Closing Date; no stop order
suspending the effectiveness of any Registration Statement has been issued
and no proceedings for that purpose have been instituted by the
Commission; subsequent to the respective dates as of which information is
given in, or incorporated into, the Registration Statement and the
Prospectus, the Company and its subsidiaries (taken as a whole) have not
sustained any material loss or interference with their respective
businesses or properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any labor dispute
or any legal or governmental proceeding; and subsequent to the respective
dates as of which information is given in, or incorporated into, the
Registration Statement and the Prospectus, there has not been any material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries
taken as a whole except as set forth in or contemplated by the Prospectus.
(k) The Representatives and the Dealers shall have received a
certificate, dated such Closing Date, of the President or any Vice
President and a principal financial or accounting officer of Uniserv in
which such officers, shall state in their capacity as such officers and on
behalf of Uniserv that, to the best of their knowledge: the
representations and warranties of Uniserv in this Agreement are true and
correct; and Uniserv has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior
to such Closing Date.
(l) Uniserv and each of the counterparties shall have executed and
delivered to each other, or succeeded to by operation of law, the final
documentation relating to the Collar Transactions.
20
(m) Uniserv shall have satisfied all the conditions precedent set
forth in Article IV (other than Sections 4.01(f) and 4.01(h), which shall
be deemed satisfied upon the closing of the offering of the Offered
Securities) of the Credit Agreement for making the Initial Loans (as
defined therein).
(n) The Representatives shall have received from each person or
entity listed on Schedule III hereto a lock-up agreement in substantially
the form attached hereto as Exhibit F.
(o) The Merger has been consummated in accordance with the laws of
the British Virgin Islands (including receipt of a copy of the certificate
of merger issued by the Registry of Corporate Affairs in the British
Virgin Islands in connection with the Merger under the laws, rules or
regulations of the British Virgin Islands).
(p) The Registration Rights Agreement is in full force and effect.
(q) Prior to the First Closing Date, each of the Affiliated Lenders
shall have executed a Share Lending Agreement related to the Affiliated
Loaned Shares and shall have deposited with the Underwriters (or their
affiliates) such Affiliated Loaned Shares in a securities account in
respect of which securities entitlements are available to the Dealers for
sale to the Underwriters.
Uniserv and the Company, each severally and not jointly agree, to furnish the
Representatives and Dealers with such conformed copies of such opinions,
certificates, letters and documents as the Representatives and Dealers
reasonably request. The Representatives may in their sole discretion waive on
behalf of the Underwriters compliance with any conditions to the obligations of
the Underwriters hereunder, whether in respect of an Optional Closing Date or
otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless each Underwriter, each Dealer, their respective partners, members,
directors, officers and their respective affiliates and each person, if any, who
controls such Underwriter or Dealer within the meaning of Section 15 of the Act,
against any losses, claims, damages or liabilities, joint or several, to which
such Underwriter or Dealer 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 any untrue statement or alleged untrue
statement of any material fact contained in any Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus, 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 (in light of the circumstances under which they were
made, in the case of any prospectus) not misleading, and will reimburse each
Underwriter and each Dealer for any legal or other expenses reasonably incurred
by such Underwriter or Dealer in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will 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 in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by the Dealers or any Underwriter
through the Representatives or by Uniserv or any Affiliated Lender specifically
for use therein; provided, further, that with respect to any untrue statement or
alleged untrue statement in or omission or alleged omission from any preliminary
prospectus, the indemnity agreement contained in this subsection (a) shall not
inure to the benefit of any Underwriter or Dealer from whom the person asserting
such losses, claims, damages or liabilities purchased the Offered Securities
concerned to the extent that a prospectus relating to such Offered Securities
was required to be
21
delivered by such Underwriter or such Dealer under the Act in
connection with such purchase and any such loss, claim, damage or liability
results from the fact that there was not sent or given to such person, at or
prior to the written confirmation of the sale of such Offered Securities, a copy
of the Prospectus (as amended or supplemented) in which such untrue statement or
omission shall have been corrected, if the Company or Uniserv had previously
furnished copies thereof to such Underwriter; provided, further, that, with
respect to any untrue statement or alleged untrue statement in or omission or
alleged omission from the Prospectus used to confirm sales of any Additional
Securities only, the indemnity agreement in this subsection (a) shall not inure
to the benefit of any Underwriter or Dealer from whom the person asserting such
losses, claims, damages or liabilities purchased the Additional Securities
concerned after such Underwriter received notification and confirmation of
receipt thereof had taken effect, in each case in accordance with the provisions
of the Notices Side Letter among the Company, Uniserv and the Representatives,
dated December 17, 2004 (the "NOTICES SIDE LETTER"), of a suspension of sales of
the Additional Securities pursuant to a Delay Period (as defined in the
Registration Rights Agreement), to the extent that a prospectus relating to such
Additional Securities was required to be delivered by such Underwriter under the
Act in connection with such purchase and any such loss, claim, damage or
liability results from the fact that there was not sent or given to such person,
at or prior to the written confirmation of the sale of such Additional
Securities, a copy of the Prospectus (as amended or supplemented) in which such
untrue statement or omission shall have been corrected (the "CORRECTED
ADDITIONAL SECURITIES PROSPECTUS"), if such Underwriter had received written
notice from the Company that the Prospectus (before such amendment or
supplement) contained such untrue statement or omission and had received copies
of the Corrected Additional Securities Prospectus from the Company or Uniserv,
in each case in accordance with the provisions of the Notices Side Letter, prior
to the time of agreement with such person of such sale (it being understood and
agreed that this proviso shall not apply to any indemnity obligations with
respect to any losses, claims, damages or liabilities related to any sales of
the Offered Securities).
(b) Uniserv will indemnify and hold harmless each Underwriter, each
Dealer, their respective partners, members, directors, officers and their
respective affiliates and each person, if any, who controls such
Underwriter or Dealer within the meaning of Section 15 of the Act, against
any losses, claims, damages or liabilities, joint or several, to which
such Underwriter or Dealer 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 any untrue statement or
alleged untrue statement of any material fact contained in any
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, 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 (in the light of the circumstances under which they were made, in
the case of any prospectus) not misleading, and will reimburse each
Underwriter and each Dealer for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending
any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that Uniserv will only be liable in any such
case to the extent and only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
reliance upon and in conformity with written information furnished to the
Company by Uniserv or any Affiliated Lender specifically for use therein;
provided, further, that with respect to any untrue statement or alleged
untrue statement in or omission or alleged omission from any preliminary
prospectus, the indemnity agreement contained in this subsection (b) shall
not inure to the benefit of any Underwriter from whom the person asserting
such losses, claims, damages or liabilities purchased the Offered
Securities concerned to the extent that a prospectus relating to such
Offered Securities was required to be delivered by such Underwriter under
the Act in connection with such purchase and any such loss, claim, damage
or liability results from the fact that there was not sent or given
22
to such person, at or prior to the written confirmation of the sale of
such Offered Securities, a copy of the Prospectus (as amended or
supplemented) in which such untrue statement or omission shall have been
corrected, if the Company or Uniserv had previously furnished copies
thereof to such Underwriter; provided, further, that, with respect to any
untrue statement or alleged untrue statement in or omission or alleged
omission from the Prospectus used to confirm sales of any Additional
Securities only, the indemnity agreement in this subsection (b) shall not
inure to the benefit of any Underwriter or Dealer from whom the person
asserting such losses, claims, damages or liabilities purchased the
Additional Securities concerned after such Underwriter received
notification and confirmation of receipt thereof had taken effect, in each
case in accordance with the provisions of the Notices Side Letter, of a
suspension of sales of the Additional Securities pursuant to a Delay
Period (as defined in the Registration Rights Agreement), to the extent
that a prospectus relating to such Additional Securities was required to
be delivered by such Underwriter under the Act in connection with such
purchase and any such loss, claim, damage or liability results from the
fact that there was not sent or given to such person, at or prior to the
written confirmation of the sale of such Additional Securities, a copy of
the Prospectus (as amended or supplemented) in which such untrue statement
or omission shall have been corrected (the "CORRECTED ADDITIONAL
SECURITIES PROSPECTUS"), if such Underwriter had received written notice
from the Company that the Prospectus (before such amendment or supplement)
contained such untrue statement or omission and had received copies of the
Corrected Additional Securities Prospectus from the Company or Uniserv, in
each case in accordance with the provisions of the Notices Side Letter,
prior to the time of agreement with such person of such sale (it being
understood and agreed that this proviso shall not apply to any indemnity
obligations with respect to any losses, claims, damages or liabilities
related to any sales of the Offered Securities).
(c) Each Underwriter and each Dealer will severally and not jointly
indemnify and hold harmless the Company, its directors and officers and
each person, if any, who controls the Company within the meaning of
Section 15 of the Act, and Uniserv, its directors and officers and each
person, if any, who controls Uniserv within the meaning of Section 15 of
the Act against any losses, claims, damages or liabilities to which the
Company or Uniserv 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 any untrue statement or alleged
untrue statement of any material fact contained in any Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus, or arise out of or are based upon the
omission or the alleged omission to state therein 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, in the case of any
prospectus) 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 reliance upon and in conformity with
written information furnished to the Company by such Underwriter through
the Representatives specifically for use therein, and will reimburse any
legal or other expenses reasonably incurred by the Company and Uniserv in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against an
indemnifying party under subsection (a), (b) or (c) above, notify the
indemnifying party of the commencement thereof; but the failure to notify
the indemnifying party shall not relieve it from any liability that it may
have under subsection (a), (b) or (c) above except to the
23
extent that it has been materially prejudiced (through the forfeiture of
substantive rights or defenses) by such failure; and provided further that
the failure to notify the indemnifying party shall not relieve it from any
liability that it may have to an indemnified party otherwise than under
subsection (a), (b) or (c) above. In case any such action is brought
against any indemnified party and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be
counsel to the indemnifying party), and after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof
other than reasonable costs of investigation. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have
been sought hereunder by such indemnified party unless such settlement (i)
includes an unconditional release of such indemnified party from all
liability on any claims that are the subject matter of such action 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 an indemnified party.
(e) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a), (b) or (c) above (i) in such proportion as is appropriate
to reflect the relative benefits received by the Company, Uniserv and the
Underwriters, respectively, 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, Uniserv and the Underwriters, respectively, 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, Uniserv and
the Underwriters, respectively, shall be deemed to be in the same
proportion as the total net proceeds (before deducting expenses) loaned by
the Dealers to Uniserv bear to the total underwriting discounts and
commissions received by the Underwriters. 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, Uniserv or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The amount paid by an indemnified party
as a result of the losses, claims, damages or liabilities referred to in
the first sentence of this subsection (e) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is
the subject of this subsection (e). Notwithstanding the provisions of this
subsection (e), 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 Act) shall
be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this
24
subsection (e) to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) The obligations of the Company and Uniserv under this Section
shall be in addition to any liability which the Company and Uniserv 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 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 director of the Company, to each officer of the Company who has
signed a Registration Statement and to each person, if any, who controls
the Company within the meaning of the Act.
8. Default of Underwriters. If any Underwriter or Underwriters default in
their obligations to purchase Offered Securities hereunder on either the First
or any Optional Closing Date and the aggregate number of shares of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, the
Representatives may make arrangements satisfactory to the Dealers for the
purchase of such Offered Securities by other persons, including any of the
Underwriters, but if no such arrangements are made by such Closing Date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Offered Securities that such
defaulting Underwriters agreed but failed to purchase on such Closing Date. If
any Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occur exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
the Representatives and the Dealers for the purchase of such Offered Securities
by other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter,
the Dealers, the Company or Uniserv, except as provided in Section 9 (provided
that if such default occurs with respect to Optional Securities after the First
Closing Date, this Agreement will not terminate as to the Firm Securities or any
Optional Securities purchased prior to such termination). As used in this
Agreement, the term "Underwriter" includes any person substituted for an
Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
9. Survival of Certain Representations and Obligations; Certain Expenses.
The respective indemnities, agreements, representations, warranties and other
statements of Uniserv, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, the Company or any of
their respective representatives, officers or directors or any controlling
person, and will survive delivery of and payment for the Offered Securities. If
this Agreement is terminated pursuant to Section 8 or if for any reason the
purchase of the Offered Securities by the Underwriters is not consummated,
Uniserv shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 and the respective obligations of the Company, Uniserv,
and the Underwriters pursuant to Section 7 shall remain in effect, and if any
Offered Securities have been purchased hereunder the representations and
warranties in Section 2 and all obligations under Section 5 shall also remain in
effect. If the purchase of the Offered Securities by the Underwriters is not
consummated for any reason other than solely because of the termination of this
Agreement pursuant to Section 8 or the occurrence of any event specified in
clause (iii), (iv), (vi), (vii) or (viii) of Section 6(c), the Company (if the
Company has defaulted) or Uniserv (if Uniserv has defaulted) will reimburse
25
the Underwriters for all out-of-pocket expenses (including fees and
disbursements of counsel) reasonably incurred by them in connection with the
offering of the Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters or the Dealers, will be mailed, delivered or telegraphed and
confirmed to the Representatives, c/o Credit Suisse First Boston LLC, Eleven
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: IBD-Legal, or, if sent to
the Company, will be mailed, delivered or telegraphed and confirmed to it c/o
UTi, Services, Inc., ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇,
Attention: Chief Executive Officer, or, if sent to Uniserv, will be mailed,
delivered or telegraphed and confirmed to it at, United Service Technologies
Limited, First Floor, Bank of Nova Scotia, Road Town, Tortola British Virgin
Islands, Attention: Secretary; provided, however, any notices to an Underwriter
or Dealer pursuant to Section 5(a)(iii) and 7 hereof shall be made in accordance
with the provisions of the Notices Side Letter.
11. Successors. This Agreement will inure to the benefit of and be binding
upon the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7, and no other person
will have any right or obligation hereunder.
12. Representation. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly will be
binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed 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 Agreement.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
Each of the Company and Uniserv hereby submits to the non-exclusive
jurisdiction of the Federal and state courts in the Borough of Manhattan in The
City of New York in any suit or proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby. Uniserv irrevocably appoints
CT Corporation, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, as its authorized agent
in the Borough of Manhattan in The City of New York upon which process may be
served in any such suit or proceeding, and agrees that service of process upon
such agent, and written notice of said service to Uniserv by the person serving
the same to the address provided in Section 10, shall be deemed in every respect
effective service of process upon Uniserv in any such suit or proceeding.
Uniserv further agrees to take any and all action as may be necessary to
maintain such designation and appointment of such agent in full force and effect
for a period of seven years from the date of this Agreement.
The obligation of the Company or Uniserv in respect of any sum due to any
Underwriter shall, notwithstanding any judgment in a currency other than United
States dollars, not be discharged until the first business day, following
receipt by such Underwriter of any sum adjudged to be so due in such other
currency, on which (and only to the extent that) such Underwriter may in
accordance with normal banking procedures purchase United States dollars with
such other currency; if the United States dollars so purchased are less than the
sum originally due to such Underwriter hereunder, the Company and Uniserv agree,
as a separate obligation and notwithstanding any such judgment, to indemnify
such Underwriter against such loss. If the United States dollars so purchased
are greater than the sum originally due to such Underwriter hereunder, such
Underwriter agrees to pay to the Company or Uniserv an amount equal to the
excess of the dollars so purchased over the sum originally due to such
Underwriter hereunder.
26
If the foregoing is in accordance with the Representatives' understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among Uniserv, the Company,
the several Dealers and the several Underwriters in accordance with its terms.
Very truly yours,
UNITED SERVICE TECHNOLOGIES LIMITED
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Title Director
---------------------------------
UTI WORLDWIDE INC.
By /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
------------------------------------
Title Chief Financial Officer
---------------------------------
and Secretary
---------------------------------
CREDIT SUISSE FIRST BOSTON INTERNATIONAL
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
------------------------------------
Title Vice President
---------------------------------
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
------------------------------------
Title Vice President
---------------------------------
BEAR ▇▇▇▇▇▇▇ INTERNATIONAL LIMITED
By /s/ ▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Title Senior Managing Director
---------------------------------
The foregoing Underwriting Agreement is hereby
confirmed and accepted as of the date
first above written.
CREDIT SUISSE FIRST BOSTON LLC
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
Acting on behalf of themselves and as the
Representatives of the several
Underwriters.
By CREDIT SUISSE FIRST BOSTON LLC
By /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------
Title: Managing Director
-----------------------------------------
By BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By /s/ ▇▇▇▇▇▇▇ Parish
-----------------------------------------
Title: Senior Managing Director
-----------------------------------------
27
SCHEDULE I
NUMBER OF FIRM
SECURITIES TO BE
UNDERWRITERS PURCHASED
------------ ---------
Credit Suisse First Boston LLC.............. 2,871,500
Bear, ▇▇▇▇▇▇▇ & Co. Inc..................... 2,871,500
Total 5,743,000
SCHEDULE II
NUMBER OF ORDINARY
SHARES LOANED AS
PART OF THE FIRM
AFFILIATED LENDERS SECURITIES
------------------ ----------
Union-Transport Holdings Inc................ 1,813,225
PTR Holdings Inc............................ 1,271,276
▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ (or an entity wholly 728,214
owned by him)...............................
▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇.......................... 570,342
Total 4,383,057
SCHEDULE III
PERSONS OR ENTITIES TO EXECUTE A LOCK-UP AGREEMENT
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
C. ▇▇▇▇ ▇▇▇▇▇▇▇, Jr.
▇▇▇▇ ▇. Level
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
PTR Holdings, Inc
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Union Transport Holdings Inc
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Wagontrails Investments N.V.
SCHEDULE IV
LIST OF SIGNIFICANT SUBSIDIARIES
UTi International Inc
▇▇▇▇▇▇▇ Company Limited
UTi (NA) Holdings NV
UTi(Netherlands) Holdings BV
UTi (US) Holdings Inc
UTi United States, Inc
UTi Asia Pacific Ltd
UTi (HK) Limited
Pyramid Freight (Pty) Ltd
UTi South Africa (Pty) Limited
Standard Corporation
