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Exhibit 2.h
AMDOCS AUTOMATIC COMMON EXCHANGE SECURITY TRUST
(subject to exchange into ordinary shares of Amdocs Limited)
$ TRUST AUTOMATIC COMMON EXCHANGE SECURITIES
Underwriting Agreement
June , 1999
Xxxxxxx, Xxxxx & Co.
BT Alex. Xxxxx Incorporated
Xxxxxx Brothers Inc.
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000.
Ladies and Gentlemen:
Amdocs Automatic Common Exchange Security Trust, a trust duly created
under the laws of the State of New York (such trust and the trustees thereof
acting in their capacities as such being referred to herein as the "Trust"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of 10,000,000 shares of the $ Automatic Common Exchange Securities of the
Trust specified above (the "Firm Securities") and, at the election of the
Underwriters, up to an aggregate of 1,500,000 additional shares of the $
Automatic Common Exchange Securities (the "Optional Securities") (the Firm
Securities and the Optional Securities which the Underwriters elect to purchase
pursuant to Section 2 hereof are herein collectively called the "Securities").
The $ Automatic Common Exchange Securities of the Trust to be
outstanding after giving effect to the sales contemplated hereby are hereinafter
called the "Automatic Common Exchange Securities". Each Automatic Common
Exchange Security will be exchanged for one or fewer Ordinary Shares, par value
pound sterling 0.01 per share ("Stock"), of Amdocs Limited, a Guernsey
corporation (the "Company"), or for cash pursuant to the Cash Settlement
Alternative (as such term is defined in the Trust Prospectus) (as defined in
Section 1(c)(i) hereof) on June , 2002 (the "Exchange Date") to be delivered
pursuant to a forward purchase contract (the "Contract"), dated June
, 1999, among the Trust and an existing shareholder of the Company identified
in Schedule II hereto (the "Seller"). In lieu of delivery of shares of Stock,
the Contract provides that the Seller may elect (i) to pay cash or deliver other
securities on the Exchange Date for each share of Stock then deliverable and
(ii) to extend the Exchange Date to a date not later than September , 2002, in
each case subject to the terms and conditions of the Contract. The Trust has
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entered into a Contract with the Seller obligating that Seller to deliver to the
Trust on the Exchange Date a number of shares of Stock equal to the product of
the Exchange Rate (as such term is defined in the Trust Prospectus) times the
initial number of shares of Stock subject to such Contract. The Seller's
obligations under the Contract will be secured by pledge of collateral pursuant
to the terms of a collateral agreement, dated June , 1999, among the Seller,
The Chase Manhattan Bank ("Chase"), as collateral agent (in such capacity, the
"Collateral Agent"), and the Trust (the "Collateral Agreement").
It is understood by all the parties that the Company, the Seller and
certain other shareholders of the Company (together with the Seller, the
"Selling Stockholders") are concurrently entering into an agreement (the
"Underwriting Agreement") providing for the sale by the Company and the Selling
Stockholders of up to a total of 20,000,000 shares of Stock and, at the election
of the Underwriters, up to 3,000,000 additional shares of Stock, through
arrangements with certain underwriters, for whom Xxxxxxx, Xxxxx & Co., Banc of
America Securities LLC, BancBoston Xxxxxxxxx Xxxxxxxx Inc., BT Alex. Xxxxx
Incorporated, Xxxxxx Brothers Inc. and XX Xxxxx Securities Corporation are
acting as representatives.
1. (a) The Company represents and warrants to, and agrees with, each of
the Underwriters, the Trust and the Seller that:
(i) A registration statement on Form F-1 (File No.
333-75151) (the "Initial Company Registration Statement") in respect of
the shares of Stock deliverable pursuant to the Contract has been filed
with the Securities and Exchange Commission (the "Commission"); the
Initial Company Registration Statement and any post-effective amendment
thereto, each in the form heretofore delivered to you, and, excluding
exhibits thereto but including all documents incorporated by reference
in the prospectus contained therein, to you for each of the other
Underwriters, have been declared effective by, or have been filed with,
as the case may be, the Commission in such form; other than a
registration statement, if any, increasing the size of the offering (a
"Company Rule 462(b) Registration Statement"), to be filed pursuant to
Rule 462(b) under the Securities Act of 1933, as amended (the "Act"),
which will become effective upon filing, no other document with respect
to the Initial Company Registration Statement has heretofore been filed
with the Commission; and no stop order suspending the effectiveness of
the Initial Company Registration Statement or any post-effective
amendment thereto or the Company Rule 462(b) Registration Statement, if
any, has been issued and no notice has been received from the
Commission by the Company that any proceeding for that purpose has been
initiated or threatened by the Commission (any preliminary prospectus
included in the Initial Company Registration Statement or filed with
the Commission pursuant to Rule 424(a) of the rules and regulations of
the Commission under the Act is hereinafter called a "Company
Preliminary Prospectus"; the various parts of the Initial Company
Registration Statement and the Company Rule 462(b) Registration
Statement, if any, including all exhibits thereto and including the
information contained in the form of final prospectus filed with the
Commission pursuant to Rule 424(b) under the Act, in accordance with
Section 5(a) hereof and deemed by virtue of Rule 430A under the Act to
be part of the Initial Company
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Registration Statement at the time it was declared effective or such
part of the Company Rule 462(b) Registration Statement, if any, became
or hereafter becomes effective, are hereinafter collectively called the
"Company Registration Statement"; such final prospectus, in the form
first filed pursuant to Rule 424(b) under the Act, is hereinafter
called the "Company Prospectus"; and the Trust Registration Statement
(as defined in Section 1(c)(i) hereof) and the Company Registration
Statement are hereinafter collectively called the "Registration
Statements" and the Trust Prospectus and the Company Prospectus are
hereinafter collectively called the "Prospectuses";
(ii) No order preventing or suspending the use of any
Company Preliminary Prospectus has been issued by the Commission, and
each Company Preliminary Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the Act and
the rules and regulations of the Commission thereunder, and did not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this representation
and warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by the Underwriters or the Seller expressly for use
therein;
(iii) The Company Registration Statement conforms,
and the Company Prospectus and any further amendments or supplements to
the Company Registration Statement or the Company Prospectus, when they
become effective or are filed with the Commission, will conform, in all
material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder and do not and will not, as of
the applicable effective date as to the Company Registration Statement
and any amendment thereto, and as of the applicable filing date as to
the Company Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by the Underwriters or the Seller
expressly for use therein;
(iv) Neither the Company nor any of its subsidiaries
has sustained since the date of the latest audited financial statements
included in the Company Prospectus any material loss or interference
with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any labor dispute or court
or governmental action, order or decree, otherwise than as set forth or
contemplated in the Company Prospectus; and, since the respective dates
as of which information is given in the Company Registration Statement
and the Company Prospectus, there has not been any change in the
capital stock, net current assets, shareholders' equity or long-term
debt of the Company or any of its subsidiaries or any material adverse
change, or any development involving a prospective material
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adverse change, in or affecting the general affairs, management,
financial position, shareholders' equity or results of operations of
the Company and its subsidiaries, otherwise than as set forth or
contemplated in the Company Prospectus;
(v) The Company and its subsidiaries have good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as
are described in the Company Prospectus or such as do not materially
affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company and its
subsidiaries; and any real property and buildings held under lease by
the Company and its subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed to be made
of such property and buildings by the Company and its subsidiaries;
(vi) The Company has been duly incorporated and is
validly existing as a company under the laws of Guernsey, with power
and authority (corporate and other) to own its properties and conduct
its business as described in the Company Prospectus; the Company has
filed its most recent statutory annual return, has paid all fees due
thereon and there are no outstanding unsatisfied judgements registered
in Guernsey against the Company and there are no outstanding
applications, orders or resolutions for the winding-up of the Company;
the Company has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, or is subject to no
material liability or disability by reason of the failure to be so
qualified in any such jurisdiction; and each subsidiary of the Company
has been duly incorporated and is validly existing as a corporation in
good standing (where applicable) under the laws of its jurisdiction of
incorporation;
(vii) The Company has an authorized capitalization as
set forth in the Company Prospectus, and all of the issued shares of
capital stock of the Company have been duly and validly authorized and
issued, are fully paid and non-assessable and conform to the
description of the Stock contained in the Company Prospectus; and all
of the issued shares of capital stock of each subsidiary of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and (except for directors' qualifying shares and except
as set forth in the Company Registration Statement) are owned directly
or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims; all of the shares of issued and
outstanding capital stock of the Company have been duly listed and
admitted for trading on the New York Stock Exchange ("NYSE"); the
holders of outstanding shares of capital stock of the Company are not
entitled to preemptive or other rights to acquire the shares of Stock
to be pledged and assigned by the Seller under the Collateral
Agreement; there are no outstanding securities convertible into or
exchangeable for, or warrants, rights or options to purchase from the
Company, or obligations of the Company to issue, the Stock or any other
class of capital stock of the Company (except as set forth in the
Company Prospectus under "Management" and "Principal and Selling
Shareholders" ); and there are no restrictions on
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subsequent transfers of the Stock under the laws of Guernsey and of the
United States;
(viii) All dividends and other distributions declared
and payable on the shares of capital stock of the Company may under the
current laws and regulations of Guernsey be paid in U.S. dollars that
may be freely transferred out of Guernsey, and all such dividends and
other distributions will not be subject to withholding or other taxes
under the current laws and regulations of Guernsey and are otherwise
free and clear of any other tax, withholding or deduction in Guernsey
and without the necessity of obtaining any Governmental Authorization
in Guernsey;
(ix) The compliance by the Company with all of the provisions
of this Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach or violation
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries is bound
or to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation
of the provisions of the Memorandum of Association and the Articles of
Association of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body (hereinafter
referred to as a "Governmental Agency") having jurisdiction over the
Company or any of its subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such Governmental Agency (hereinafter referred to as
"Governmental Authorizations") is required for the consummation by the
Company of the transactions contemplated by this Agreement, except (A)
the registration under the Act of the shares of Stock, (B) such
Governmental Authorizations as have been duly obtained and are in full
force and effect and copies of which have been furnished to you and (C)
such Governmental Authorizations as may be required under state
securities or Blue Sky laws or any laws of jurisdictions outside
Guernsey and the United States in connection with the purchase and
distribution of the shares of Stock pursuant to the Contract;
(x) Neither the Company nor any of its subsidiaries
is in violation of its constituent documents or in default in the
performance or observance of any material obligation, agreement,
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement lease or other agreement or instrument to which
it is a party or by which it or any of its properties may be bound;
(xi) The statements set forth in the Company
Prospectus under the caption "Description of Share Capital", insofar as
they purport to constitute a summary of the terms of the Stock, under
the caption "Taxation of the Company" and under the caption "Under
writing", insofar as they purport to describe the provisions of the
laws and documents referred to therein, are accurate, complete and
fair;
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(xii) Other than as set forth in the Company
Prospectus, there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of which any
property of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a material
adverse effect on the current or future consolidated financial
position, shareholders' equity or results of operations of the Company
and its subsidiaries; and, to the best of the Company's knowledge, no
such proceedings are threatened or contemplated by any Governmental
Agency or threatened by others;
(xiii) The Company is not an "investment company" or
an entity "controlled" by an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act" and, together with the Act, the "Acts");
(xiv) The Company and each of its subsidiaries have
all licenses, franchises, permits, authorizations, approvals and
orders and other concessions of and from all Governmental Agencies that
are necessary to own or lease their other properties and conduct their
businesses as described in the Company Prospectus except where the
failure to have such licenses, franchises, permits, authorizations,
approvals and orders and other concessions would not, singly or in the
aggregate, result in a material adverse effect on the current or future
consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries;
(xv) The Company is not a Passive Foreign Investment
Company ("PFIC") within the meaning of Section 1296 of the United
States Internal Revenue Code of 1986, as amended;
(xvi) The Company and its subsidiaries are in
compliance in all material respects with all conditions and
requirements stipulated by the instruments of approval granted to it
with respect to the "Approved Enterprise" status of any of the
Company's Israeli subsidiary's facilities as well as with respect to
the other tax benefits received by the Company's Israeli subsidiary as
set forth under the caption "Taxation of the Company" in the Company
Prospectus and by Israeli laws and regulations relating to such
"Approved Enterprise" status and the aforementioned other tax benefits
received by the Company's Israeli subsidiary; and neither the Company
nor the Israeli subsidiary has received any notice of any proceeding or
investigation relating to revocation or modification of any "Approved
Enterprise" status granted with respect to any of the Israeli
subsidiary's facilities;
(xvii) The Company qualifies as an "exempt company"
in Guernsey and is in compliance with all conditions and requirements,
whether imposed by applicable law or otherwise, to the extent necessary
to maintain its status as an exempt company;
(xviii) Ernst & Young LLP, who have certified certain
financial
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statements of the Company and its subsidiaries, are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder;
(xix) Neither the Company nor any of its affiliates
does business with the government of Cuba within the meaning of Section
517.075, Florida Statutes; and
(xx) The Company has reviewed its operations and
those of its subsidiaries and any third parties with which the Company
or any of its subsidiaries has a material relationship to evaluate the
extent to which the business or operations of the Company or any of its
subsidiaries will be affected by the Year 2000 Problem. As a result of
such review, the Company does not believe, that the Year 2000 Problem
will have a material adverse effect on the general affairs, management,
the current or future consolidated financial position, shareholders'
equity or results of operations of the Company and its subsidiaries or
result in any material loss or interference with the Company's business
or operations. The "Year 2000 Problem" as used herein means any
significant risk that computer hardware or software used in the
receipt, transmission, processing, manipulation, storage, retrieval,
retransmission or other utilization of data or in the operation of
mechanical or electrical systems of any kind will not, in the case of
dates or time periods occurring after December 31, 1999, function at
least as effectively as in the case of dates or time periods occurring
prior to January 1, 2000.
(b) The Seller represents and warrants to, and agrees with,
each of the Underwriters, the Company and the Trust that:
(i) The Seller has been duly incorporated and is
validly existing as a company under the laws of Guernsey.
(ii) The compliance by the Seller with all of the
provisions of this Agreement, the Contract, the power of attorney in
connection with this transaction (the "Power of Attorney"), the Custody
Agreement in connection with this transaction (the "Custody Agreement")
and the Collateral Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute
a default under, any indenture, mortgage, deed of trust, loan agreement
or other agreement or instrument to which the Seller is a party or by
which the Seller is bound or to which any of the property or assets of
the Seller is subject, nor will such action result in any violation of
the provisions of the constitutive documents of the Seller, or of any
statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Seller or any of the
property of the Seller; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental
agency or body is required for the compliance by the Seller with or the
consummation by the Seller of the transactions contemplated by this
Agreement, the Contract, the Collateral Agreement, the Power of
Attorney or the Custody Agreement, except such as may be required by
the NASD or the registration under the Act of the Stock
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and such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or Blue Sky
laws or any laws of jurisdictions outside the United States in
connection with the purchase and distribution of the Stock by the Trust
pursuant to the Contract;
(iii) This Agreement has been duly authorized,
executed and delivered by the Seller; the Contract, the Collateral
Agreement, the Power of Attorney and the Custody Agreement have been
duly authorized, executed and delivered by the Seller and, assuming due
authorization, execution and delivery by the other parties thereto,
constitute valid and legally binding agreements of the Seller,
enforceable in accordance with their respective terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights and
to general equity principles and except as rights to indemnity and
contribution thereunder may be limited by state or federal securities
laws or the public policy underlying such laws;
(iv) The Seller has, and immediately prior to each
Time of Delivery (as defined in Section 4(a) hereof) the Seller will
have, good and valid title to the shares of Stock to be pledged and
assigned by it under the Collateral Agreement, free and clear of all
liens, encumbrances, equities or claims other than those created
pursuant to such Collateral Agreement; all consents, approvals,
authorizations and orders necessary for the Seller to pledge and assign
the shares of Stock to be pledged and assigned by the Seller pursuant
to such Collateral Agreement have been obtained; the Seller has full
right, power and authority to pledge and assign the shares of Stock to
be pledged and assigned by the Seller pursuant to such Collateral
Agreement; and upon delivery of such shares of Stock to the Collateral
Agent, as defined in the Collateral Agreement, for the benefit of the
Trust pursuant to the Collateral Agreement, the Collateral Agent will
obtain a first priority perfected security interest in such shares of
Stock, and upon delivery of such shares of Stock by the Collateral
Agent to the Trust pursuant to the Collateral Agreement and payment
therefor pursuant to the Contract, good and valid title to such shares
of Stock, free and clear of all liens, encumbrances, equities or
claims, will pass to the Trust;
(v) The representations and warranties of the Seller
set forth in Section 3 of such Collateral Agreement are true and
correct on and as of the date hereof with the same effect as though
such representations and warranties had been set forth in full in this
Agreement;
(vi) During the period beginning from the date hereof
and continuing to and including the date 90 days after the date of the
Trust Prospectus, the Seller will not offer, sell, contract to sell or
otherwise dispose of, except as provided hereunder or in the
Underwriting Agreement, any Stock or any securities of the Company that
are substantially similar to the Stock, including but not limited to
any securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially similar
securities without your prior written consent; provided, however, that
the Seller may sell or transfer Stock or any securities of the Company
that are substantially similar to the Stock to the shareholders of the
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Seller or to a trust for the benefit of such shareholders provided that
each such transferee undertakes in writing to comply with the foregoing
restrictions;
(vii) The Seller has not taken, nor will the Seller
take, directly or indirectly, any action which is designed to or which
has constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any security of
the Company to facilitate the sale or resale of the Securities;
(viii) To the extent that any statements or omissions
made in the Registration Statements, any Preliminary Prospectus, the
Prospectuses or any amendment or supplement thereto are made in
reliance upon and in conformity with written information furnished to
the Company by the Seller expressly for use therein, (A) such
Preliminary Prospectus and the Registration Statements did, and the
Prospectuses and any further amendments or supplements to the
Registration Statements and the Prospectuses, when they become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Acts and
the rules and regulations of the Commission thereunder, (B) the
Registration Statements and any amendment or supplement thereto do not
and will not, as of the applicable effective date, contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading and (C) the Prospectuses do not, and as amended
or supplemented will not, as of the applicable filing date, contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
(ix) In order to document the Underwriters'
compliance with the reporting and withholding provisions of the Tax
Equity and Fiscal Responsibility Act of 1982 with respect to the
transactions herein contemplated, the Seller agrees to deliver to you
prior to or at the First Time of Delivery (as hereinafter defined) a
properly completed and executed United States Treasury Department Form
W-9 (or other applicable form or statement specified by Treasury
Department regulations in lieu thereof);
(x) Certificates in negotiable form and containing no
restrictive legends representing all of the shares of Stock to be
pledged and assigned by the Seller hereunder have been placed in
custody under the Custody Agreement, duly executed and delivered by the
Seller to Chase, as custodian (the "POA Custodian"), and the Seller has
duly executed and delivered the Power of Attorney, appointing the
persons indicated in Schedule II hereto, and each of them, as the
Seller's attorneys-in-fact (the "Attorneys-in-Fact") with authority to
execute and deliver this Agreement on behalf of the Seller, to execute
and deliver the Contract and the Collateral Agreement, to authorize the
delivery of the shares of Stock to be pledged and assigned by the
Seller hereunder and otherwise to act on behalf of the Seller in
connection with the transactions contemplated by this Agreement, the
Custody Agreement, the Contract and the Collateral Agreement; and
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(xi) The shares of Stock represented by the
certificates held in custody for the Seller under the Custody Agreement
are subject to the interests of the Collateral Agent for the benefit of
the Trust hereunder; the arrangements made by the Seller for such
custody, and the appointment by the Seller of the Attorneys-in-Fact by
the Power of Attorney, are to that extent irrevocable; the obligations
of the Seller hereunder shall not be terminated by operation of law,
whether by the dissolution of the Seller, or by the occurrence of any
other event; if the Seller should be dissolved, or if any other such
event should occur, before the delivery of the shares of Stock
hereunder, certificates representing the shares of Stock shall be
delivered by or on behalf of the Seller in accordance with the terms
and conditions of this Agreement, of the Contract, of the Collateral
Agreement and of the Custody Agreement, as appropriate; and actions
taken by the Attorneys-in-Fact pursuant to the Powers of Attorney shall
be as valid as if such dissolution or other event had not occurred,
regardless of whether or not the Custodian, the Attorneys-in-Fact, or
any of them, shall have received notice of such dissolution or other
event.
(c) The Trust represents and warrants to, and agrees with,
each of the Under writers, the Seller and the Company that:
(i) A notification on Form N-8A (the "Notification")
of registration of the Trust as an investment company has been filed
with the Commission; a registration statement on Form N-2 (File No.
333-73265 and File No. 811-09245) (the "Initial Trust Registration
Statement") in respect of the Securities has been filed with the
Commission; the Initial Trust Registration Statement and any
post-effective amendment thereto, each in the form heretofore delivered
to you, and, excluding exhibits thereto, have been declared effective
by the Commission in such form; no other document with respect to the
Initial Trust Registration Statement has heretofore been filed with
the Commission; and no stop order suspending the effectiveness of the
Initial Trust Registration Statement, or any post-effective amendment
thereto has been issued and no proceeding for that purpose has been
initiated or threatened by the Commission (any preliminary prospectus
included in the Initial Trust Registration Statement or filed with the
Commission pursuant to Rule 497(a) of the rules and regulations of the
Commission under the Act, is hereinafter called a "Trust Preliminary
Prospectus"; the various parts of the Initial Trust Registration
Statement including all exhibits thereto and including the information
contained in the form of final prospectus filed with the Commission
pursuant to Rule 497(h) under the Act in accordance with Section 5(a)
hereof and deemed by virtue of Rule 430A under the Act to be part of
the Initial Trust Registration Statement at the time it was declared
effective, as amended at the time such part of the registration
statement became effective, are hereinafter collectively called the
"Trust Registration Statement"; and such final prospectus, in the form
first filed pursuant to Rule 497(h) under the Act, is hereinafter
called the "Trust Prospectus");
(ii) No order preventing or suspending the use of any
Trust Preliminary Prospectus has been issued by the Commission, and
each Trust Preliminary Prospectus, at the time of filing thereof,
conformed in all material
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respects to the requirements of the Acts, and the rules and regulations
of the Commission thereunder, and did not contain an untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
provided, however, that this representation and warranty shall not
apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Trust by the
Underwriters or the Seller expressly for use therein;
(iii) The Notification and the Trust Registration
Statement conform, and the Trust Prospectus and any further amendments
or supplements to the Notification, the Trust Registration Statement or
the Trust Prospectus will conform, in all material respects to the
requirements of the Acts and the rules and regulations of the
Commission thereunder and do not and will not, as of the applicable
effective date as to the Trust Registration Statement and any
amendment thereto and as of the applicable filing date as to the Trust
Prospectus and any amendment or supplement thereto, contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Trust by
the Underwriters or the Seller expressly for use therein;
(iv) Since the respective dates as of which
information is given in the Trust Registration Statement and the Trust
Prospectus, there has not been any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the general affairs, management, financial position, results
of operations, prospects, investment objectives, investment policies,
or liabilities of the Trust, otherwise than as set forth or
contemplated in the Trust Prospectus, and there have been no
transactions entered into by the Trust which are material to the Trust
other than those in the ordinary course of its business or as described
in the Trust Prospectus;
(v) The Trust has been duly created, is validly
existing as a trust under the laws of the State of New York, with power
and authority to own its properties and conduct its business as
described in the Trust Prospectus and to enter into and perform its
obligations under this Agreement and the Fundamental Agreements (as
defined in Section 1(c)(vii) hereof); the Trust has all necessary
consents, approvals, authorizations, orders, registrations or
qualifications, of and from, and has made all declarations and filings
with, all courts and governmental agencies and bodies, to own and use
its assets and to conduct its business in the manner described in the
Trust Prospectus, except to the extent that the failure to obtain or
file the foregoing would not have a material adverse effect on the
Trust and except such as may be required by the NASD or the
registration under the Act of the Securities and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities by the Underwriters;
12
the Trust has no subsidiaries;
(vi) The Trust is registered with the Commission as a
non-diversified, closed-end management investment company under the
Investment Company Act and no order of suspension or revocation of such
registration has been issued or proceedings therefor initiated or, to
the knowledge of the Trust, threatened by the Commission; no person is
serving or acting as an officer or trustee of the Trust except in
accordance with the provisions of the Investment Company Act;
(vii) Each of the Contract, the Collateral Agreement,
the Administration Agreement between Chase and the Trust (the
"Administration Agreement"), the Custodian Agreement between Chase and
the Trust (the "Custodian Agreement"), the Paying Agent Agreement
between Chase and the Trust (the "Paying Agent Agreement"), the Fund
Expense Agreement between Xxxxxxx, Xxxxx & Co. and Chase (the "Fund
Expense Agreement") and the Fund Expense and Indemnity Agreement
between the Seller, Chase and the Trust (the "Fund Indemnity
Agreement") (the Contract, the Collateral Agreement, the Administration
Agreement, the Custodian Agreement, the Paying Agent Agreement, the
Fund Expense Agreement and the Fund Indemnity Agreement are herein
collectively called the "Fundamental Agreements") has been duly
authorized, executed and delivered by the Trust and, assuming due
authorization, execution and delivery by the other parties thereto,
constitutes a valid and legally binding agreement of the Trust,
enforceable in accordance with its terms, subject, as to enforcement,
to bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting creditors' rights and to general
equity principles;
(viii) The Amended and Restated Trust Agreement dated
May , 1999 (the "Trust Agreement") and the Fundamental Agreements
comply with all applicable provisions of the Acts, and all approvals of
such agreements required under the Investment Company Act by the
holders of the Automatic Common Exchange Securities and the trustees
have been obtained and are in full force and effect;
(ix) All of the outstanding Automatic Common Exchange
Securities have been duly and validly authorized and issued and are
fully paid and non-assessable, and the form of certificates used to
evidence the Automatic Common Exchange Securities is in due and proper
form and complies with all provisions of applicable law; the Trust
Agreement and the Fundamental Agreements conform to the descriptions
thereof contained in the Trust Prospectus;
(x) The Securities have been duly authorized and,
when issued and delivered pursuant to this Agreement, will be validly
issued, fully paid and non-assessable; the Securities will conform to
the description thereof in the Trust Prospectus; no person has rights
to registration of any securities because of the filing of the Trust
Registration Statement;
(xi) The issue and sale of the Securities and the
compliance by the
13
Trust with all of the provisions of the Securities, this Agreement and
each Fundamental Agreement and the consummation of the transactions
herein and therein contemplated will not conflict with or result in a
breach or violation of any of the terms or provisions of, or constitute
a default under, the Trust Agreement or any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument to which the
Trust is a party or by which the Trust is bound or to which any of the
property or assets of the Trust is subject, nor will such action result
in any violation of any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Trust
or any of its properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Securities or the consummation by the Trust of the transactions
contemplated by this Agreement or the Fundamental Agreements, except
such as may be required by the NASD or the registration under the Act
of the Securities and such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Securities by the Underwriters;
(xii) Assuming due authorization, execution and
delivery by the parties other than the Trust, the Fundamental
Agreements are in full force and effect and the Trust is not in default
in the performance or observance of any obligation, covenant or
condition thereunder and, to the knowledge of the Trust, no event has
occurred which with the passage of time or the giving of notice or both
would constitute a default thereunder; the Trust is not in default in
the performance or observance of any obligation, covenant or condition
contained in any other agreement or instrument to which it is a party
or by which it or any of its properties may be bound;
(xiii) The statements set forth in the Trust
Prospectus under the caption "Description of Securities", insofar as
they purport to constitute a summary of the terms of the Securities,
under the caption "Certain Federal Income Tax Considerations", and
under the caption "Underwriting", insofar as they purport to describe
the provisions of the laws and agreements referred to therein, are
accurate, complete and fair;
(xiv) There are no legal or governmental proceedings
pending to which the Trust is a party or of which any property of the
Trust is the subject which, if determined adversely to the Trust, would
individually or in the aggregate have a material adverse effect on the
current or future financial position, or results of operations of the
Trust; and, to the best of the Trust's knowledge, no such proceedings
are threatened or contemplated by governmental authorities or
threatened by others;
(xv) There are no material restrictions, limitations
or regulations with respect to the ability of the Trust to invest its
assets as described in the Trust Prospectus, other than as described
therein;
14
(xvi) The Securities have been approved for listing
on the New York Stock Exchange subject to notice of issuance; the
Trust's Registration Statement on Form 8-A under the Exchange Act is
effective; and
(xvii) PricewaterhouseCoopers LLP, who have certified
certain financial statements and supporting schedules included in the
Trust Registration Statement, are independent public accountants as
required by the Act and the rules and regulations of the Commission
thereunder.
2. Subject to the terms and conditions herein set forth, (a) the Trust
agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Trust, at a
purchase price of $ per Security, the number of Firm Securities set forth
opposite the name of such Underwriter in Schedule I hereto and (b) in the event
and to the extent that the Underwriters shall exercise the election to purchase
Optional Securities as provided below, the Trust agrees to issue and sell to
each of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Trust, at the same purchase price set forth in
clause (a) of this Section 2, that portion of the aggregate number of Optional
Securities as to which such election shall have been exercised (to be adjusted
by you so as to eliminate fractional securities) determined by multiplying such
number of Optional Securities by a fraction, the numerator of which is the
maximum aggregate number of Optional Securities which such Under writer is
entitled to purchase as set forth opposite the name of such Underwriter in
Schedule I hereto and the denominator of which is the maximum aggregate number
of Optional Securities that all of the Underwriters are entitled to purchase
hereunder. The agreements in this Section made by the Trust are for the benefit
of and enforceable by the Underwriters and the Seller. The agreements in this
Section made by the Underwriters are for the benefit of and are enforceable by
the Seller and the Trust.
The Trust hereby grants to the Underwriters the right to purchase at
their election up to 1,500,000 Optional Securities, at the purchase price set
forth in clause (a) of the first paragraph of this Section 2, for the sole
purpose of covering overallotments in the sale of the Firm Securities. Any such
election to purchase Optional Securities may be exercised only by written notice
from you to the Trust (with copies to ), given within a period of 30
calendar days after the date of this Agreement, setting forth the aggregate
principal amount of Optional Securities to be purchased and the date on which
such Optional Securities are to be delivered, as determined by you but in no
event earlier than the First Time of Delivery (as defined in Section 4(a)
hereof) or, unless you and the Trust otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
As compensation to the Underwriters for their commitments hereunder,
and in view of the fact that the proceeds of the sale of the Securities will be
used by the Trust as specified in the Contract, the Seller at each Time of
Delivery will pay to Xxxxxxx, Xxxxx & Co., for the accounts of the several
Underwriters, an amount equal to $ per Security for the Securities to be
delivered at such Time of Delivery. Alternatively, as a matter of convenience,
Xxxxxxx, Sachs & Co. may deduct such amount from the purchase price of the
Securities, and in such event the Seller shall be deemed to have paid the same.
15
3. Upon the authorization by you of the release of the Firm Securities,
the several Under writers propose to offer the Firm Securities for sale upon the
terms and conditions set forth in the Trust Prospectus.
4. (a) The Securities to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Xxxxx & Co. may request upon at least forty-eight hours' prior
notice to the Trust, shall be delivered by or on behalf of the Trust to Xxxxxxx,
Sachs & Co., for the account of such Underwriter, against payment by or on
behalf of such Underwriter of the purchase price therefor by wire transfer or
certified or official bank check or checks, payable to the order of the Trust in
Federal (same day) funds. The Trust will cause the certificates representing the
Securities to be made available for checking and packaging at least twenty-four
hours prior to the Time of Delivery (as defined below) at the office of Xxxxxxx,
Xxxxx & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (the "Designated
Office"). The time and date of such delivery and payment shall be, with respect
to the Firm Securities, 9:30 a.m., New York City time, on June , 1999 or such
other time and date as Xxxxxxx, Sachs & Co. and the Trust may agree upon in
writing, and, with respect to the Optional Securities, 9:30 a.m., New York City
time, on the date specified by Xxxxxxx, Xxxxx & Co. in the written notice given
by Xxxxxxx, Sachs & Co. of the Underwriters' election to purchase such Optional
Securities, or such other time and date as Xxxxxxx, Xxxxx & Co. and the Trust
may agree upon in writing. Such time and date for delivery of the Firm
Securities is herein called the "First Time of Delivery", such time and date for
delivery of the Optional Securities, if not the First Time of Delivery, is
herein called the "Second Time of Delivery", and each such time and date for
delivery is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by
or on behalf of the parties hereto pursuant to Section 7 hereof, including the
cross-receipt for the Securities and any additional documents requested by the
Underwriters pursuant to Section 7(s) hereof, will be delivered at the offices
of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000 (the "Closing Location"), and the Securities will be delivered at the
Designated Office, all at such Time of Delivery. A meeting will be held at the
Closing Location at 4:30 p.m., New York City time, on the New York Business Day
next preceding such Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York City are generally
authorized or obligated by law or executive order to close.
5. (a) The Trust agrees with each of the Underwriters:
(i) To prepare the Trust Prospectus in a form
approved by you and to file such Trust Prospectus pursuant to Rule
497(h) under the Act not later than the Commission's close of business
on the second business day following the execution and delivery of this
Agreement, or, if applicable, such earlier time as may be required by
Rule 430A(a)(3) under the Act; to make no further amendment or any
supplement to the Trust Registration Statement or Trust Prospectus
prior to the last
16
Time of Delivery which shall be disapproved by you promptly after
reasonable notice thereof; to advise you, promptly after it receives
notice thereof, of the time when any amendment to the Trust
Registration Statement has been filed or becomes effective or any
supplement to the Trust Prospectus or any amended prospectus has been
filed and to furnish you with copies thereof; to file promptly all
reports and any definitive proxy or information statements required to
be filed by the Trust with the Commission pursuant to the Acts and the
Exchange Act subsequent to the date of the Trust Prospectus and for so
long as the delivery of a prospectus is required in connection with the
offering or sale of the Securities; to advise you, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any Trust
Preliminary Prospectus or prospectus or any order pursuant to Section
8(e) of the Investment Company Act, of the suspension of the
qualification of the Securities for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for
any such purpose, or of any request by the Commission for the amending
or supplementing of the Trust Registration Statement or Trust
Prospectus or for additional information; and, in the event of the
issuance of any stop order or of any order preventing or suspending
the use of any Trust Preliminary Prospectus or prospectus or suspending
any such qualification or order pursuant to Section 8(e) of the
Investment Company Act, promptly to use its best efforts to obtain the
withdrawal of such order;
(ii) Promptly from time to time to take such action
as you may reasonably request to qualify the Securities for offering
and sale under the securities laws of such jurisdictions as you may
request and to comply with such laws so as to permit the continuance
of sales and dealings therein in such jurisdictions for as long as may
be necessary to complete the distribution of the Securities, provided
that in connection therewith the Trust shall not be required to qualify
as a foreign trust or association or to file a general consent to
service of process in any jurisdiction;
(iii) Prior to 10:00 a.m., New York City time, on the
New York Business Day next succeeding the date of this Agreement and
from time to time, at the expense of the Company, to furnish the
Underwriters with copies of the Trust Prospectus in New York City in
such quantities as you may reasonably request, and, if the delivery of
a prospectus is required at any time prior to the expiration of nine
months after the time of issue of the Trust Prospectus in connection
with the offering or sale of the Securities and if at such time any
event shall have occurred as a result of which the Trust Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Trust Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during
such period to amend or supplement the Trust Prospectus in order to
comply with the Act, to notify you and upon your request to prepare and
furnish without charge to each Underwriter and to any dealer in
securities as many copies as you may from time to time reasonably
request of an amended Trust Prospectus or a supplement to the Trust
Prospectus which will correct such statement or omission or effect
such
17
compliance; and in case any Underwriter is required to deliver a
prospectus in connection with sales of any of the Securities at any
time nine months or more after the time of issue of the Trust
Prospectus, upon your request but at the expense of such Underwriter,
to prepare and deliver to such Underwriter as many copies as you may
request of an amended or supplemented Trust Prospectus complying with
Section 10(a)(3) of the Act;
(iv) To make generally available to the Trust's
securityholders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Trust Registration
Statement (as defined in Rule 158(c) under the Act), an earnings
statement of the Trust (which need not be audited) complying with
Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Trust, Rule
158);
(v) To use the net proceeds received by it from the
sale of the Securities pursuant to this Agreement in the manner
specified in the Trust Prospectus under the caption "Use of Proceeds";
and
(vi) To use its best efforts to list, subject to
notice of issuance, and to maintain the listing of the Securities on
the New York Stock Exchange.
(b) The Company agrees with each of the Underwriters:
(i) To prepare the Company Prospectus in a form
approved by you and to file such Company Prospectus pursuant to Rule
424(b) under the Act not later than the Commission's close of business
on the second business day following the execution and delivery of this
Agreement, or, if applicable, such earlier time as may be required by
Rule 430A(a)(3) under the Act; to make no further amendment or any
supplement to the Company Registration Statement or Company Prospectus
prior to the last Time of Delivery which shall be disapproved by you
promptly after reasonable notice thereof; to advise you, promptly after
it receives notice thereof, of the time when any amendment to the
Company Registration Statement has been filed or becomes effective or
any supplement to the Company Prospectus or any amended Company
Prospectus has been filed and to furnish you with copies thereof; to
file promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act
subsequent to the date of the Company Prospectus and for so long as
the delivery of a prospectus is required in connection with the
offering or sale of the Securities; to advise you, promptly after it
receives notice thereof, of the issuance by the Commission of any stop
order or of any order preventing or suspending the use of any
Company Preliminary Prospectus or prospectus, of the suspension of the
qualification of the shares of Stock to be delivered pursuant to the
Contract for offering or sale in any jurisdiction, of the initiation or
threatening of any proceeding for any such purpose, or of any request
by the Commission for the amending or supplementing of the Company
Registration Statement or Company Prospectus or for additional
information; and, in the event of the issuance of any stop order or any
order preventing or suspending the use of any
18
Company Preliminary Prospectus or prospectus or suspending any such
qualification, to promptly use its best efforts to obtain the
withdrawal of such order;
(ii) If the Company elects to rely upon Rule 462(b),
to file a Company Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 p.m., Washington,
D.C. time, on the date of this Agreement, and at the time of filing
either pay to the Commission the filing fee for the Rule 462(b)
Registration Statement or give irrevocable instructions for the payment
of such fee pursuant to Rule 111(b) under the Act;
(iii) Promptly from time to time to take such action
as you may reasonably request to qualify the Securities for offering
and sale under the securities laws of such jurisdictions as you may
request and to comply with such laws so as to permit the continuance
of sales and dealings therein in such jurisdictions for as long as may
be necessary to complete the distribution of the Securities, provided
that in connection therewith the Company shall not be required to
qualify as a foreign corporation or to file a general consent to
service of process in any jurisdiction;
(iv) Prior to 10:00 a.m. New York City time, on the
New York Business Day next succeeding the date of this Agreement and
from time to time, at the expense of the Company, to furnish the
Underwriters with copies of the Company Prospectus in New York City in
such quantities as you may reasonably request, and, if the delivery of
a prospectus is required at any time prior to the expiration of nine
months after the time of issue of the Company Prospectus in connection
with the offering or sale of the Securities and if at such time any
events shall have occurred as a result of which the Company Prospectus
as then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in light of the circumstances under which
they were made when such Company Prospectus is delivered, not
misleading, or, if for any other reason it shall be necessary during
such same period to amend or supplement the Company Prospectus or to
file under the Exchange Act any document incorporated by reference in
the Company Prospectus in order to comply with the Act or the Exchange
Act, to notify you and upon your request to file such document and to
prepare and, at the expense of the Company, furnish, without charge to
each Underwriter and to any dealer in securities as many copies as you
may from time to time reasonably request of an amended Company
Prospectus or a supplement to the Company Prospectus which will correct
such statement or omission or effect such compliance; and in case any
Underwriter is required to deliver a prospectus in connection with
sales of any of the Securities at any time nine months or more after
the time of issue of the Company Prospectus, upon your request but at
the expense of such Underwriter, to prepare and deliver to such
Underwriter as many copies as you may request of an amended or
supplemented Company Prospectus complying with Section 10(a)(3) of the
Act;
(v) To make generally available to its
securityholders as soon as practicable, but in any event not later
than eighteen months after the effective date
19
of the Registration Statement (as defined in Rule 158(c) under the
Act), an earnings statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(vi) During the period beginning from the date hereof
and continuing to and including the date 90 days after the date of the
Prospectuses, not to offer, sell, contract to sell or otherwise dispose
of, except as provided in the Underwriting Agreement, any securities of
the Company that are substantially similar to the Stock, including but
not limited to any securities that are convertible into or exchangeable
for, or that represent the right to receive, Stock or any such
substantially similar securities (other than pursuant to employee stock
option plans existing on the date of this Agreement), without your
prior written consent;
(vii) To furnish to its shareholders as soon as
practicable after the end of each fiscal year an annual report
(including a balance sheet and statements of income, shareholders'
equity and cash flows of the Company and its consolidated subsidiaries
certified by independent public accountants and prepared in conformity
with generally accepted accounting principles in the U.S. ("GAAP"))
and, as soon as practicable after the end of each of the first three
quarters of each fiscal year prepared in accordance with GAAP, to make
available to its shareholders consolidated summary financial
information of the Company and its subsidiaries for such quarter in
reasonable detail;
(viii) During a period of five years from the
effective date of the Registration Statement, to furnish to you copies
of all reports or other communications (financial or other) furnished
to shareholders, and to deliver to you (i) as soon as they are
available, copies of any reports and financial statements furnished to
or filed with the Commission or any securities exchange on which any
class of securities of the Company is listed; and (ii) such additional
information concerning the business and financial condition of the
Company as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of
the Company and its subsidiaries are consolidated in reports furnished
to its shareholders generally or to the Commission) and
(ix) To use its best efforts to maintain the listing
of the Stock on the NYSE.
6. Except as otherwise disclosed in the Prospectuses, the Trust, the
Company and the Seller covenant and agree with the several Underwriters that (a)
the Company will pay or cause to be paid (i) the fees, disbursements and
expenses of the Company's counsel and the Company's accountants in connection
with the registration of the Securities under the Act and all other expenses in
connection with the preparation, printing and filing of the Notification, the
Trust Registration Statement, any Trust Preliminary Prospectus and the Trust
Prospectus and amendments and supplements thereto and the mailing and
delivering of copies thereof to the Underwriters and dealers; (ii) the cost of
printing or producing any
20
Agreement among Underwriters, this Agreement and Blue Sky Memorandum, closing
documents (including any compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Securities;
(iii) all expenses in connection with the qualification of the Securities for
offering and sale under state securities laws as provided in Section 5(b)(ii)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky survey;
(iv) the filing fees incident to, and the fees and disbursements of counsel for
the Underwriters in connection with, securing any required review by the NASD of
the terms of the sale of the Securities; (v) all fees and expenses in connection
with the preparation and filing of a registration statement under the Exchange
Act relating to the Securities and all costs and expenses incident to the
listing of the Securities on the NYSE or other national or regional exchange;
(vi) the cost of preparing certificates representing the Securities; (vii) the
cost and charges of any transfer agent or registrar for the Securities; (viii)
the cost of preparing Stock certificates; (ix) the cost and charges of any
transfer agent or registrar for the Stock; (x) the fees and expenses of the
Attorneys-in-Fact and the POA Custodian; (xi) all fees, expenses and costs in
connection with the marketing of the Securities; (xii) all costs and expenses
incident to the performance of the Seller's obligations hereunder which are not
otherwise specifically provided for in this Section, including (A) any fees and
expenses of counsel for the Seller and (B) all expenses and taxes incident to
the sale and delivery of the shares of Stock to be sold or pledged by the
Seller; (xiii) all other costs and expenses incident to the performance by the
Trust, the Company and the Seller of their respective obligations hereunder
which are not otherwise specifically provided for in this Section; and (b)
Xxxxxxx, Xxxxx & Co. will pay or cause to be paid all fees, disbursements and
expenses of the Trust's counsel and the Trust's accountants in connection with
the registration of the Securities under the Acts. In connection with clause
(a)(xii)(B) of the preceding sentence, Xxxxxxx, Sachs & Co. agrees to pay New
York State stock transfer tax, and the Seller agrees to reimburse Xxxxxxx, Xxxxx
& Co. for associated carrying costs if such tax payment is not rebated on the
day of payment and for any portion of such tax payment not rebated. It is
understood, however, that, except as provided in this Section, and Sections 8
and 11 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, transfer taxes on resale of any of the
Securities by them, and any advertising expenses connected with any offers they
may make.
7. The obligations of the Underwriters hereunder, as to the Securities
to be delivered at each Time of Delivery, shall be subject, in their discretion,
to the condition that all representations and warranties and other statements of
the Trust, the Company and the Seller herein are, at and as of such Time of
Delivery, true and correct, the condition that the Trust, the Company and the
Seller shall have performed all of their respective obligations hereunder
theretofore to be per formed, and the following additional conditions:
(a) The Prospectuses shall have been filed with the Commission
pursuant to Rule 424(b) or Rule 497(h), as applicable, within the applicable
time period prescribed for such filing by the rules and regulations under the
Act and in accordance with Sections 5(a)(i) and 5(b)(i) hereof; if the Company
has elected to rely upon Rule 462(b), the Company Rule 462(b) Registration
Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on
the date of this Agreement; no stop order suspending the
21
effectiveness of the Registration Statements or any part thereof, and no order
pursuant to Section 8(e) of the Investment Company Act, shall have been issued
and no proceeding for that purpose shall have been initiated or threatened by
the Commission; and all requests for additional information on the part of the
Commission shall have been complied with to your reasonable satisfaction;
(b) Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for the
Underwriters, shall have furnished to you such written opinion or opinions,
dated such Time of Delivery, in form and substance satisfactory to you, and such
counsel shall have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Xxxxxxxx & Xxxxxxxx, counsel for the Trust, shall have
furnished to you their written opinion or opinions, dated such Time of Delivery,
in form and substance satisfactory to you, to the effect that:
(i) The Trust (x) has been duly formed and is validly
existing as a trust under the laws of the State of New York and (y) is
registered with the Commission under the Investment Company Act as a
non-diversified, closed-end management investment company;
(ii) The Securities have been duly authorized and
validly issued and are fully paid and non-assessable and are entitled
to the benefits provided by the Trust Agreement;
(iii) The Securities will be exchanged for shares of
Stock in accordance with the terms of the Trust Agreement and the
Contract (unless a Reorganization Event (as such term is defined in the
Contract) occurs or the Seller elects the Cash Settlement Alternative),
subject to bankruptcy, insolvency, reorganization and similar laws of
general applicability relating to or affecting creditors' rights and to
general equity principles;
(iv) All regulatory consents, authorizations,
approvals and filings required to be obtained or made by the Trust
under the Federal laws of the United States and the laws of the State
of New York for the issuance, sale and delivery of the Securities by
the Trust to you have been obtained or made;
(v) This Agreement has been duly authorized, executed
and delivered by the Trust;
(vi) Each Fundamental Agreement has been duly
authorized, executed and delivered by the Trust and, assuming due
authorization, execution and delivery by the other parties thereto,
constitutes a valid and legally binding agreement of the Trust,
enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles;
22
(vii) The statements in the Trust Prospectus under
the caption "Certain Federal Income Tax Considerations", to the extent
that such statements constitute summaries of the legal matters
referred to therein, fairly represent their opinion as to such matters;
(viii) On the basis of information which was reviewed
in the course of the performance of the services referred to in their
opinion considered in the light of their understanding of the
applicable law and the experience they have gained through their
practice under the Acts, such counsel are of the opinion that the Trust
Registration Statement, as of its effective date, and the Trust
Prospectus, as of the date of the Trust Prospectus, appeared on their
face to be appropriately responsive in all material respects to the
requirements of the Acts and the applicable rules and regulations of
the Commission thereunder; and that nothing that came to their
attention in the course of such review has caused them to believe that
the Trust Registration Statement, as of its effective date, contained
any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Trust Prospectus, as of
the date of the Trust Prospectus, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; also, nothing that has come to
such counsel's attention in the course of certain procedures (as
described in such opinion) has caused such counsel to believe that the
Trust Prospectus, as of the date and time of delivery of such opinion,
contained any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that such opinion may state that the
limitations inherent in the independent verification of factual matters
and the character of determinations involved in the registration
process are such, however, that such counsel do not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Trust Registration Statement or the Trust
Prospectus except for those made under the captions "Underwriting",
"Investment Objective and Policies", and "Descriptions of Securities"
in the Trust Prospectus insofar as they relate to provisions of
documents therein described, and such counsel need not express any
opinion or belief as to the financial statements or other financial
data; and provided further that such counsel may state that they have
not participated in the preparation of the Company Registration
Statement or the Company Prospectus, and need not express any opinion
or belief with respect thereto or with respect to information relating
to the Company contained in the Trust Prospectus under the captions
"Prospectus Summary--The Company" and "Investment Objectives and
Policies--The Company and the Ordinary Shares".
In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than the laws of the
State of New York and the Federal laws of the United States.
(d) Xxxxxxxx & Xxxxxxxx, counsel for the Trust, shall have
furnished to the
23
Seller their written opinion, dated such Time of Delivery, with respect to
paragraphs (i)(y), (iv) and (vii) of subsection (c) above and, in addition, to
the effect that the statements in the Trust Prospectus under the captions
"Underwriting", "Investment Objective and Policies" and "Description of
Securities", insofar as such statements summarize provisions of documents
referred to therein, are accurate in all material respects and fairly summarize
the matters referred to therein.
(e) Reboul, MacMurray, Xxxxxx, Xxxxxxx & Kristol, counsel for
the Company, shall have furnished to you their written opinion (a draft of such
opinion is attached as Annex II(a) hereto), dated such Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) The Company has been duly qualified as a foreign
corporation for the transaction of business and is in good standing
under the laws of each jurisdiction in the United States in which it
owns or leases properties or conducts any business so as to require
such qualification, or is subject to no material liability or
disability by reason of failure to be so qualified in any such
jurisdiction (such counsel being entitled to rely in respect of the
opinion in this clause upon opinions of local counsel and in respect of
matters of fact upon certificates of officers of the Company, provided
that such counsel shall state that they believe that both you and they
are justified in relying upon such opinions and certificates);
(ii) Each U.S. subsidiary of the Company has been
duly incorporated and is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation; and all
of the issued shares of capital stock of each such subsidiary have been
duly and validly authorized and issued, are fully paid and
non-assessable, and (except for directors' qualifying shares) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims (such counsel being entitled to rely
in respect of the opinion in this clause upon opinions of local counsel
and in respect of matters of fact upon certificates of officers of the
Company or its subsidiaries, provided that such counsel shall state
that they believe that both you and they are justified in relying upon
such opinions and certificates);
(iii) This Agreement has been duly executed and
delivered by the Company;
(iv) The statements in the Company Prospectus under
"Comparison of United States and Guernsey Corporate Law" to the extent
such statements relate to matters of United States law or regulation or
to the provisions of documents therein described, are accurate,
complete and fair in all material respects, and nothing has been
omitted from such statements which would make the same misleading in
any material respect;
(v) None of the Company's U.S. subsidiaries are in
violation of their respective constituent documents or, to the best of
such counsel's knowledge, in default in the performance or observance
of any material obligation, agreement,
24
covenant or condition contained in any indenture, mortgage, deed of
trust, loan agreement, lease or other agreement or instrument to which
any of them is a party or by which any of them or any of their
properties may be bound;
(vi) The statements set forth in the Company
Prospectus under the captions "Underwriting" and "Taxation of Holders
of Ordinary Shares", insofar as they purport to describe provisions of
United States federal or New York law and documents referred to
therein, are accurate, complete and fair in all material respects;
(vii) Under the laws of the State of New York
relating to personal jurisdiction, the Company has, pursuant to
Section 14 of this Agreement, validly and irrevocably submitted to the
personal jurisdiction of any state or federal court located in the
Borough of Manhattan, The City of New York, New York (each a "New York
Court") in any action arising out of or relating to this Agreement or
the transactions contemplated hereby, has validly and irrevocably
waived any objection to the venue of a proceeding in any such court,
and has validly and irrevocably appointed the Authorized Agent (as
defined herein) as its authorized agent for the purpose described in
Section 14 hereof; and service of process effected on such agent in the
manner set forth in Section 14 hereof will be effective insofar as the
law of the State of New York is concerned to confer valid personal
jurisdiction over the Company;
(viii) To the best of such counsel's knowledge and
other than as set forth in the Company Prospectus, there are no legal
or governmental proceedings pending in any United States federal or
state court to which the Company or any of its subsidiaries is a party
or of which any property of the Company or any of its subsidiaries is
the subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate be reasonably
likely to have a material adverse effect on the current or future
consolidated financial position, shareholders' equity or results of
operations of the Company and its subsidiaries; and, to the best of
such counsel's knowledge, no such proceedings are threatened or
contemplated by any Governmental Agency or threatened by others;
(ix) The compliance by the Company with all of the
provisions of this Agreement and the consummation of the transactions
herein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument known to such counsel to which the Company or
any of the Company's U.S. subsidiaries is a party or by which the
Company or any of the Company's U.S. subsidiaries is bound or to which
any of the property or assets of the Company or any of such
subsidiaries is subject, nor will such action result in any violation
of any statute or any order, rule or regulation known to such counsel
of any United States Federal or New York Governmental Agency having
jurisdiction over the Company or any of its subsidiaries or any of
their properties;
(x) No Governmental Authorization of the United
States or the State
25
of New York is required for the consummation by the Company of the
transactions contemplated by this Agreement, except the registration
under the Acts of the Securities and the Stock, and such consents,
approvals, authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection with the
purchase and distribution of the Securities and the Stock or which have
been obtained and are in full force and effect;
(xi) The Company is not an "investment company", as
such term is defined in the Investment Company Act; and
(xii) The Company Registration Statement and the
Company Prospectus and any further amendments and supplements thereto
made by the Company prior to such Time of Delivery (other than the
financial statements and related schedules and other financial data
therein, as to which such counsel need express no opinion) comply as to
form in all material respects with the requirements of the Act and the
rules and regulations thereunder; although they do not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Company Registration Statement or the
Company Prospectus, except for those referred to in the opinion in
subsections (iv) and (vi) of this Section 7(e), they have no reason to
believe that, as of its effective date, the Company Registration
Statement or any further amendment thereto made by the Company prior to
such Time of Delivery (other than the financial statements and related
schedules and other financial data therein, as to which such counsel
need express no opinion) contained an untrue statement of a material
fact or omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or that, as
of its date, the Company Prospectus or any further amendment or
supplement thereto made by the Company prior to such Time of Delivery
(other than the financial statements and related schedules and other
financial data therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading
or that, as of such Time of Delivery, either the Company Registration
Statement or the Company Prospectus or any further amendment or
supplement thereto made by the Company prior to such Time of Delivery
(other than the financial statements and related schedules and other
financial data therein, as to which such counsel need express no
opinion) contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading;
and they do not know of any amendment to the Company Registration
Statement required to be filed or of any contracts or other documents
of a character required to be filed as an exhibit to the Company
Registration Statement or required to be described in the Company
Registration Statement or the Company Prospectus which are not filed or
described as required;
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction outside the United States;
26
(f) Xxxxx Xxxxxxxx, counsel for the Company, shall have furnished to
you their written opinion (a draft of such opinion is attached as Annex II(b)
hereto), dated such Time of Delivery, in form and substance satisfactory to you,
to the effect that:
(i) The Company has been duly incorporated and is
validly existing as a company under the laws of Guernsey, with power
and authority (corporate and other) to own its properties and conduct
its business as described in the Company Prospectus; and the Company
has filed its most recent statutory annual return, has paid all fees
due thereon and there are no outstanding unsatisfied judgements
registered in Guernsey against the Company and there are no outstanding
applications, orders or resolutions for the winding-up of the Company;
(ii) The Company has an authorized capitalization as
set forth in the Company Prospectus, and all of the issued shares of
capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable; there are no restrictions
on subsequent transfers of the Stock; and the Stock conforms to the
description thereof contained in the Company Prospectus;
(iii) To the best of such counsel's knowledge and
other than as set forth in the Company Prospectus, there are no legal
or governmental proceedings pending in Guernsey to which the Company or
any of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would individually
or in the aggregate have a material adverse effect on the current or
future consolidated financial position, shareholders' equity or results
of operations of the Company and its subsidiaries; and, to the best of
such counsel's knowledge, no such proceedings are threatened or
contemplated by any Governmental Agency or threatened by others;
(iv) This Agreement has been duly authorized by the
Company;
(v) The compliance by the Company with all of the
provisions of this Agreement and the consummation of the transactions
herein contemplated will not result in any violation of the provisions
of the Memorandum of Association and Articles of Association of the
Company or any Guernsey statute or any order, rule or regulation known
to such counsel of any Governmental Agency in Guernsey having
jurisdiction over the Company or any of its properties;
(vi) No Governmental Authorization of or with any
Governmental Agency is required in Guernsey for the consummation by the
Company of the transactions contemplated by this Agreement, except any
such consents, approvals, authorizations or orders which have been duly
obtained and are in full force and effect;
(vii) The statements in the Company Prospectus under
"Comparison of United States and Guernsey Corporate Law" to the extent
such statements relate to matters of Guernsey law or regulation or to
the provisions of documents therein
27
described, are accurate, complete and fair in all material respects,
and nothing has been omitted from such statements which would make the
same misleading in any material respect;
(viii) Insofar as matters of Guernsey law are
concerned, the Company Registration Statement and the filing of the
Company Registration Statement with the Commission have been duly
authorized by and on behalf of the Company; and the Company
Registration Statement has been duly executed pursuant to such
authorization by and on behalf of the Company;
(ix) The Company's agreement to the choice of law
provisions set forth in Section 14 hereof will be recognized by the
courts of Guernsey; the Company can xxx and be sued in its own name
under the laws of Guernsey; the irrevocable submission of the Company
to the exclusive jurisdiction of a New York Court, the waiver by the
Company of any objection to the venue of a proceeding of a New York
Court and the agreement of the Company that this Agreement shall be
governed by and construed in accordance with the laws of the State of
New York are legal, valid and binding; service of process effected in
the manner set forth in Section 14 hereof will be effective, insofar as
the law of Guernsey is concerned, to confer valid personal jurisdiction
over the Company; and judgment obtained in a New York Court arising out
of or in relation to the obligations of the Company under this
Agreement would be enforceable against the Company in the courts of
Guernsey;
(x) The indemnification and contribution provisions
set forth in Section 8 hereof do not contravene any statute or any
express statement of the public policy or laws of Guernsey;
(xi) All dividends and other distributions declared
and payable on the shares of capital stock of the Company may be paid
in U.S. dollars under the current laws and regulations of Guernsey and
may be freely transferred out of Guernsey, and all such dividends and
other distributions will not be subject to withholding or other taxes
under the current laws and regulations of Guernsey and are otherwise
free and clear of any other tax, withholding or deduction in Guernsey
and without the necessity of obtaining any Govern mental Authorization
in Guernsey; and
(xii) The statements set forth in the Company
Prospectus under the caption "Description of Share Capital", insofar as
they purport to constitute a summary of the terms of the Stock, and
under the captions "Taxation of the Company" and "Taxation of Holders
of Ordinary Shares", insofar as they purport to describe the provisions
of Guernsey law and documents referred to therein, are accurate,
complete and fair;
In giving such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than Guernsey;
(g) Meitar, Liquornik, Geva & Co., special Israeli counsel for the
Company, shall
28
have furnished to you their written opinion (a draft of such opinion is attached
as Annex II(c) hereto), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) The Company's Israeli subsidiary has been duly
incorporated and is validly existing under the laws of Israel, with
power and authority (corporate and other) to own its properties and
conduct its business as described in the Company Prospectus; and all of
the issued shares of capital stock of such subsidiary have been duly
and validly authorized and issued, are fully paid and non-assessable,
and are owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims;
(ii) Any buildings held under lease by such
subsidiary are held by it under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and
buildings by such subsidiary (in giving the opinion in this clause,
such counsel may state that no examination of record titles for the
purpose of such opinion has been made, and that they are relying upon a
general review of the titles of such subsidiary, upon opinions of
counsel to the lessors of such property and, in respect of matters of
fact, upon certificates of officers of such subsidiary, provided that
such counsel shall state that they believe that both you and they are
justified in relying upon such opinions, abstracts, reports, policies
and certificates);
(iii) Other than as set forth in the Company
Prospectus, to the best of such counsel's knowledge, there are no legal
or governmental proceedings pending to which the Company's Israeli
subsidiary is a party or of which any property of the Company's Israeli
subsidiary is the subject which, if determined adversely to such
subsidiary, would individually or in the aggregate have a material
adverse effect on the current or future consolidated financial
position, shareholders' equity or results of operations of such
subsidiary; and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by any Governmental Agency
or threatened by others;
(iv) The compliance by the Company with all of the
provisions of this Agreement and the consummation of the transactions
herein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any of the agreements set forth on Schedule 1 to such counsel's
opinion, nor will such action result in any violation of the provisions
of the constituent documents of such subsidiary or any statute or any
order, rule or regulation known to such counsel of any Israeli
Governmental Agency having jurisdiction over the Company's Israeli
subsidiary or any of its properties;
(v) No Governmental Authorization of or with any
Governmental Agency is required in Israel for the consummation by the
Company of the transactions contemplated by this Agreement, except any
such consents, approvals, authorizations or orders which have been duly
obtained and are in full force and effect;
29
(vi) The Company's Israeli subsidiary has all
licenses and concessions of and from all Governmental Agencies that are
necessary to own or lease its properties and conduct its businesses as
described in the Company Prospectus; and the Company's Israeli
subsidiary has all franchises, permits, authorizations, approvals and
orders and other licenses and concessions of and from all Governmental
Agencies that are necessary to own or lease its other properties and
conduct its businesses as described in the Company Prospectus except
for such licenses, franchises, permits, authorizations, approvals and
orders the failure to obtain which will not have a material adverse
effect on the financial condition or results of operations of the
Company and its subsidiaries;
(vii) To the best of such counsel's knowledge, the
Company's Israeli subsidiary is not in violation of its constituent
documents or in default in the performance or observance of any of the
agreements set forth on Schedule 1 to such counsel's opinion;
(viii) The statements set forth in the Company
Prospectus under the caption "Taxation of the Company", insofar as they
purport to describe the provisions of Israeli law and documents
referred to therein, are accurate, fair and complete in all material
respects;
(ix) To the best knowledge of such counsel, the
Company and its Israeli subsidiary are in compliance in all material
respects with all conditions and requirements stipulated by the
instruments of approval granted to it with respect to the "Approved
Enterprise" status of any of the Company's Israeli subsidiary's
facilities as well as with respect to the other tax benefits received
by the Company's Israeli subsidiary as set forth under the caption
"Taxation of the Company" in the Company Prospectus and by Israeli laws
and regulations relating to such "Approved Enterprise" status and the
aforementioned other tax benefits received by the Company's Israeli
subsidiary; and, to the best knowledge of such counsel, neither the
Company nor the Israeli subsidiary has received any notice of any
proceeding or investigation relating to revocation or modification of
any "Approved Enterprise" status granted with respect to any of the
Israeli subsidiary's facilities; and
(x) Although they do not assume any responsibility
for the accuracy, completeness or fairness of the statements contained
in the Company Registration Statement or the Company Prospectus, except
for those referred to in the opinion in subsection (viii) of this
Section 7(g), they have no reason to believe that, as of its effective
date, the Company Registration Statement or any further amendment
thereto made by the Company prior to such Time of Delivery (other than
the financial statements and related schedules and other financial data
therein, as to which such counsel need express no opinion) contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading or that, as of its date, the Company Prospectus
or any further amendment or supplement thereto made by the
30
Company prior to such Time of Delivery (other than the financial
statements and related schedules and other financial data therein, as
to which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading or that, as of
such Time of Delivery, either the Company Registration Statement or the
Company Prospectus or any further amendment or supplement thereto made
by the Company prior to such Time of Delivery (other than the financial
statements and related schedules and other financial data therein, as
to which such counsel need express no opinion) contains an untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
In giving such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than Israel;
(h) Olswang, special U.K. counsel for the Company, shall have furnished
to you their written opinion (a draft of such opinion is attached as Annex II(d)
hereto), dated such Time of Delivery, in form and substance satisfactory to you,
to the effect that:
(i) The Company's U.K. subsidiaries have been duly
incorporated and are validly existing as corporations in good standing
under the laws of the U.K., with power and authority (corporate and
other) to own their properties and conduct their business as described
in the Company Prospectus; and all of the issued shares of capital
stock of each such subsidiary have been duly and validly authorized and
issued, are fully paid and non-assessable, and (except for directors'
qualifying shares) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims;
(ii) Having searched its computer records, such
counsel is not currently acting in relation to any pending legal or
governmental proceedings to which the Company's U.K. subsidiaries are a
party or of which any property of the Company's U.K. subsidiaries are
the subject; and, the chief executive officers of each of the Company's
U.K. subsidiaries have certified to such counsel that, to the best of
their knowledge, no such proceedings are threatened or pending;
(iii) The compliance by the Company with all of the
provisions of this Agreement and the consummation of the transactions
herein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument reviewed by such counsel to which the Company's
U.K. subsidiaries are a party or by which the Company's U.K.
subsidiaries are bound or to which any of the property or assets of the
Company or such subsidiaries are subject, nor will such action result
in any violation of the provisions of the constituent documents of such
subsidiaries or any statute or any order, rule or regulation known to
such counsel of any U.K. Governmental Agency having jurisdiction over
the Company's U.K. subsidiaries or any of their properties;
31
and, the chief executive officers of each of the Company's U.K.
subsidiaries have certified to such counsel that, to the best of their
knowledge, there are no such material agreements (other than those
which have been reviewed by such counsel);
(iv) No Governmental Authorization of or with any
Governmental Agency is required in the U.K. for the consummation by the
Company of the transactions contemplated by this Agreement, except any
such consents, approvals, authorizations or orders which have been duly
obtained and are in full force and effect; and
(v) The Company's U.K. subsidiaries have all powers
and licenses necessary to own or lease their properties and conduct
their businesses as described in the Company Prospectus; and the
Company's U.K. subsidiaries have all franchises, permits,
authorizations, approvals and orders and other licenses and concessions
of and from all Governmental Agencies that are necessary to own or
lease its other properties and conduct its businesses as described in
the Company Prospectus except for such licenses, franchises, permits,
authorizations, approvals and orders the failure to obtain which will
not have a material adverse effect on the financial condition or
results of operations of the Company and its subsidiaries;
In giving such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the U.K.;
(i) Xxxxx Xxxxxxxx, as Guernsey counsel for the Seller, shall
have furnished to you their written opinion (a draft of such opinion is attached
as Annex II(e) hereto), dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
(i) The Seller has been duly incorporated and is
validly existing as a company under the laws of Guernsey, with power
and authority (corporate and other) to enter into this Agreement, the
Power of Attorney, the Custody Agreement, the Contract and Collateral
Agreement, and to consummate the transactions contemplated hereby and
thereby; and the Seller has filed its most recent statutory annual
return, has paid all fees due thereon and there are no outstanding
unsatisfied judgements registered in Guernsey against the Company and
there are no outstanding applications, orders or resolutions for the
winding-up of the Company;
(ii) This Agreement has been duly authorized,
executed and delivered by or on behalf of the Seller; the Power of
Attorney, the Custody Agreement, the Contract and the Collateral
Agreement have been duly authorized, executed and delivered by or on
behalf of the Seller; and the compliance by the Seller with all of the
provisions of this Agreement, the Power of Attorney, the Custody
Agreement, the Contract and the Collateral Agreement and the
consummation of the transactions herein and therein contemplated will
not breach or result in a default under any indenture, mortgage, deed
of trust, loan agreement or other agreement or instrument known to
such counsel to which the Seller is a party or by which the Seller is
bound or to which any of the property or assets of the Seller is
subject, nor will such action violate the provisions of the Memorandum
of Association and Articles of Association of the Seller or any
Guernsey statute or any order, rule or
32
regulation known to such counsel of any Governmental Agency in Guernsey
having jurisdiction over the Seller or any of its properties;
(iii) No Governmental Authorization of or with any
Governmental Agency is required in Guernsey for the compliance by the
Seller with all of the provisions of this Agreement, the Contract and
the Collateral Agreement, except any such consents, approvals,
authorizations or orders which have been duly obtained and are in full
force and effect;
(iv) The Seller's agreement to the choice of law
provisions set forth in Section 14 hereof will be recognized by the
courts of Guernsey; the Seller can xxx and be sued in its own name
under the laws of Guernsey; the irrevocable submission of the Seller
to the exclusive jurisdiction of a New York Court, the waiver by the
Seller of any objection to the venue of a proceeding of a New York
Court and the agreement of the Seller that this Agreement shall be
governed by and construed in accordance with the laws of the State of
New York are legal, valid and binding; service of process effected in
the manner set forth in Section 14 hereof will be effective, insofar as
the law of Guernsey is concerned, to confer valid personal jurisdiction
over the Seller; and judgment obtained in a New York Court arising out
of or in relation to the obligations of the Seller under this Agreement
would be enforceable against the Seller in the courts of Guernsey; and
(v) In the event of the commencement of any
insolvency, liquidation, bankruptcy or reorganization proceeding
against the Seller under Guernsey law, neither the Seller nor a
receiver, administrator, conservator or similar official would be
permitted to terminate, revoke, abrogate or avoid the obligations of
the Seller under the Contract and the Collateral Agreement and the
Trust would be able to exercise its rights under the Contract and the
Collateral Agreement without delay notwithstanding the commencement of
any such proceeding;
In giving such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than Guernsey;
(j) Debevoise & Xxxxxxxx, New York counsel for the Seller,
shall have furnished to you their written opinion (a draft of such opinion is
attached as Annex II(f) hereto), dated such Time of Delivery, in form and
substance satisfactory to you, to the effect that:
(i) This Agreement has been duly executed and
delivered by or on behalf of the Seller; the Power of Attorney, the
Custody Agreement, the Contract and the Collateral Agreement have been
duly executed and delivered by or on behalf of the Seller and, assuming
due authorization, execution and delivery by the other parties thereto,
each constitutes a valid and legally binding agreement of the Seller,
enforceable against the Seller in accordance with its terms, subject to
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws relating to or affecting creditors'
rights generally, general equitable principles (whether considered in a
proceeding in equity or at law); and the compliance by the
33
Seller with all of the provisions of this Agreement, the Power of
Attorney, the Custody Agreement, the Contract and the Collateral
Agreement and the consummation of the transactions herein and therein
contemplated will not breach or result in a default under any
indenture, mortgage, deed of trust, loan agreement or other agreement
or instrument known to such counsel to which the Seller is a party or
by which the Seller is bound or to which any of the property or assets
of the Seller is subject, nor will such action violate any Federal or
New York statute or any rule or regulation issued pursuant to any
Federal or New York statute or any order known to such counsel issued
pursuant to any Federal or New York statute by any court or
governmental agency or body having jurisdiction over the Seller or any
of its properties;
(ii) No Governmental Authorization of the United
States or the State of New York is required for the compliance by the
Seller with all of the provisions of this Agreement, the Contract and
the Collateral Agreement, except for the registration of the Securities
and the Stock under the Acts and such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Securities and the Stock;
(iii) Assuming due authorization, execution and
delivery thereof by the Trust and the Collateral Agent, the Collateral
Agreement, together with the delivery of (x) the certificates in
registered form representing the Stock pledged thereunder by the Seller
and (y) undated stock powers with respect thereto duly endorsed in
blank, to the Collateral Agent for the benefit of the Trust in the
State of New York creates in favor of the Collateral Agent for the
benefit of the Trust a perfected security interest in such Stock under
the Uniform Commercial Code as in effect in the State of New York (the
"New York UCC"); upon such delivery, at the First Time of Delivery,
assuming that (A) the Collateral Agent and the Trust will acquire the
security interest in such shares in good faith and without notice of
any adverse claim (within the meaning of the New York UCC) and (B) the
Seller has rights in the shares of Stock subject to the Collateral
Agreement, the Collateral Agent will acquire such security interest in
such shares of Stock for the benefit of the Trust free of any adverse
claims (within the meaning of the New York UCC); and
(iv) Upon payment for and delivery of certificates
representing the shares of Stock together with undated stock powers
with respect thereto duly endorsed in blank in accordance with the
Contract and Collateral Agreement, assuming due authorization,
execution and delivery thereof by the Trust and, in the case of the
Collateral Agreement, the Collateral Agent, and assuming that (A) the
Seller continues to be the sole registered owner of the shares of Stock
to be sold by it, (B) the certificates representing such shares do not
contain any notation of liens or restrictions and (C) the purchasers of
Securities will acquire such shares in good faith and without notice of
any adverse claims (within the meaning of the New York UCC), the
purchasers acquire all of the rights of the Seller in such shares and
will also acquire their interest in such shares free of any adverse
claims (within the meaning of the New York UCC);
34
In rendering such opinion, such counsel may state that (a) with respect
to the opinion in clause (i) above, they rely on matters of Guernsey law on the
opinion of Xxxxx Xxxxxxxx, and (b) they express no opinion as to the laws of any
jurisdiction outside the United States.
(k) On the date of the Trust Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the effective
date of any post-effective amendment to the Trust Registration Statement filed
subsequent to the date of this Agreement and also at each Time of Delivery,
PricewaterhouseCoopers LLP shall have furnished to you a letter or letters,
dated the respective dates of delivery thereof, in form and substance
satisfactory to you;
(l) On the date of the Company Prospectus at a time prior to
the execution of this Agreement, at 9:30 a.m., New York City time, on the
effective date of any post-effective amendment to the Company Registration
Statement filed subsequent to the date of this Agreement and also at each Time
of Delivery, the accounting firm listed in Section 1(a)(xviii) hereof shall have
furnished to you a letter or letters, dated the respective dates of delivery
thereof, in form and sub stance satisfactory to you, to the effect set forth in
Annex I hereto;
(m) (i) Since the respective dates as of which information is
given in the Trust Registration Statement and the Trust Prospectus, there shall
not have been any change, or any development involving a prospective change, in
or affecting the general affairs, management, financial position, results of
operations, prospects, investment objectives, investment policies or liabilities
of the Trust, otherwise than as set forth or contemplated in the Trust
Prospectus, (ii) neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included in
the Company Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Company Prospectus, and (iii) since the
respective dates as of which information is given in the Company Prospectus
there shall not have been any change in the capital stock, net current assets,
shareholders' equity or long-term debt of the Company or any of its subsidiaries
or any change, or any development involving a prospective change, in or
affecting the general affairs, management, financial position, shareholders'
equity or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Company Prospectus, the effect of
which, in any such case described in clause (i), (ii) or (iii), is in the
judgment of the Underwriters so material and adverse as to make it impracticable
or inadvisable to proceed with the public offering or the delivery of the
Securities being issued at such Time of Delivery on the terms and in the manner
contemplated in the Trust Prospectus;
(n) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities by any "nationally
recognized statistical rating organization", as that term is defined by the
Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such
organization shall have publicly announced that it
35
has under surveillance or review, with possible negative implications, its
rating of any of the Company's debt securities;
(o) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in trading in
securities generally on the NYSE; (ii) a suspension or material limitation in
trading in the Company's securities on the NYSE; (iii) a general moratorium on
commercial banking activities in New York, London or Israel declared by the
relevant authorities; (iv) a change or development involving a prospective
change in Guernsey taxation affecting the Company, the Shares or the transfer
thereof or the imposition of exchange controls by the United States or Guernsey;
(v) the outbreak or escalation of hostilities involving the United States, the
United Kingdom or Israel or the declaration by the United States, the United
Kingdom or Israel of a national emergency or war, if the effect of any such
event specified in this clause (v) in the judgment of the Underwriters makes it
impracticable or inadvisable to proceed with the public offering or the delivery
of the Securities being issued at such Time of Delivery on the terms and in the
manner contemplated in the Trust Prospectus or (vi) the occurrence of any
material adverse change in the existing financial, political or economic
conditions in the United States, the United Kingdom or Israel or elsewhere
which, in the judgment of the Underwriters, would materially and adversely
affect the financial markets or the market for the Securities and other equity
securities;
(p) The Securities shall have been duly listed, subject to
notice of issuance, on the NYSE;
(q) Each Fundamental Agreement shall have been executed and
delivered by all parties thereto and the Seller shall have delivered to the
Collateral Agent the number of shares of Stock required by the Collateral
Agreement to be initially pledged thereunder in accordance with the requirements
of the Collateral Agreement;
(r) The Trust and the Company shall have complied with the
provisions of Section 5(a)(iii) and 5(b)(ii) hereof with respect to the
furnishing of prospectuses on the New York Business Day next succeeding the date
of this Agreement; and
(s) The Trust, the Company and the Seller shall have furnished
or caused to be furnished to you at such Time of Delivery certificates of
officers of the Trust, the Company and the Seller satisfactory to you as to the
accuracy of the representations and warranties of the Trust, the Company and the
Seller, respectively, herein and in the Contract and Collateral Agreement at and
as of such Time of Delivery, as to the satisfaction and performance by the
Trust, the Company and the Seller of all of their respective obligations
hereunder and thereunder to be performed at or prior to such Time of Delivery,
as to the matters set forth in subsections (a) and (m) of this Section (except
in the case of the Seller) and as to such other matters as you may reasonably
request.
8. (a) The Company and the Seller, jointly and severally, will
indemnify and hold harmless the Trust and each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which the Trust or such
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
36
thereof) arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Company Preliminary Prospectus,
the Company Registration Statement or the Company Prospectus, or any amendment
or supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and will reimburse the
Trust and each Underwriter for any legal or other expenses reasonably incurred
by the Trust or such Underwriter in connection with investigating or defending
any such action or claim as such expenses are incurred; provided, however, that
the Company and the Seller shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any Company Preliminary Prospectus, the Company Registration Statement
or the Company Prospectus, or any such amendment or supplement thereto, in
reliance upon and in conformity with written information furnished to the
Company by any Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use
therein; provided, further that in no event shall the Seller be liable under
this Section 8(a) for an amount in excess of the gross proceeds from the
transactions contemplated by this Agreement and the Fundamental Agreements
received by the Seller from the sale of the Securities.
(b) The Seller will indemnify and hold harmless the Trust, the
Company and each Underwriter against any losses, claims, damages or liabilities
to which the Trust, the Company or such Underwriter may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue statement
or alleged untrue statement of a material fact contained in any Trust
Preliminary Prospectus, the Trust Registration Statement or the Trust
Prospectus, or any amendment or supplement thereto, or arise out of or are based
upon the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading,
and will reimburse the Trust, the Company and each Underwriter for any legal or
other expenses reasonably incurred by the Trust, the Company or such Underwriter
in connection with investigating or defending any such action or claim;
provided, however, that the Seller shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in any Trust Preliminary Prospectus, the Trust Registration
Statement or the Trust Prospectus, or any such amendment or supplement thereto,
in reliance upon and in conformity with written information furnished by any
Underwriter through Xxxxxxx, Xxxxx & Co. expressly for use therein; provided,
further, that the Seller shall not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
relating only to the Company made in any Trust Preliminary Prospectus, the Trust
Registration Statement or the Trust Prospectus, or any amendment or supplement
thereto, in reliance upon and in conformity with information furnished by the
Company expressly for use therein.
(c) Each Underwriter will indemnify and hold harmless the
Company, the Trust and the Seller against any losses, claims, damages or
liabilities to which the Company, the Trust or the Seller may become subject,
under the Act or otherwise, insofar
37
as such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in any Company Preliminary Prospectus or Trust
Preliminary Prospectus, either of the Registration Statements or either of the
Prospectuses, or any amendment or supplement thereto, or arise out of or are
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in any Company Preliminary Prospectus or Trust Preliminary Prospectus, either of
the Registration Statements or either of the Prospectuses, or any amendment or
supplement thereto, in reliance upon and in conformity with written information
furnished to the Trust or the Company by such Under writer through Xxxxxxx,
Sachs & Co. expressly for use therein; and will reimburse the Company, the Trust
and the Seller for any legal or other expenses reasonably incurred by the
Company, the Trust or the Seller in connection with investigating or defending
any such action or claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of any action,
such indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the indemnifying
party in writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under such subsection. In case any such
action shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (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 shall
not be liable to such indemnified party under such subsection for any legal
expenses of other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the defense thereof
other than reasonable costs of investigation. No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a), (b) or (c) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions
38
in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company, the Trust and the Seller on the one
hand and the Underwriters on the other from the offering of the Securities. If,
however, the allocation provided by the immediately preceding sentence is not
permitted by applicable law or if the indemnified party failed to give the
notice required under subsection (e) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company, the Trust and the Seller on the one hand and
the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions in
respect thereof), as well as any other relevant equitable considerations. The
relative benefits received by the Company, the Trust and the Seller on the one
hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company, the Trust and the Seller bear to the total
compensation received by the Underwriters, in each case as set forth in the
Trust Prospectus. The relative fault shall be determined by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission or alleged omission to state a material fact relates to
information supplied by the Company, the Trust or the Seller on the one hand or
the Underwriters on the other and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The Company, the Trust, the Seller and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this subsection (f)
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above in this
subsection (e). The amount paid or payable by an indemnified party as a result
of the losses, claims, damages or liabilities (or actions in respect thereof)
referred to above in this subsection (e) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this subsection (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 subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company, the Trust and the Seller
under this Section 8 shall be in addition to any liability which the Company,
the Trust and the Seller may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of the Act; and the obligations of the Underwriters under
this Section 8 shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company or the Seller (if any),
to each trustee of the Trust and to each person, if any, who controls the
Company, the Trust or the
39
Seller within the meaning of the Act.
(g) Notwithstanding any other provision of this Section 8, and
without limitation of any other rights to contribution or indemnity which the
Seller may have hereunder or otherwise, the Company shall indemnify the Seller
with respect to any amounts that are paid by any the Seller under subsection (a)
above; provided, however, that the Company shall not be required to indemnify
the Seller to the extent that any such loss, claim, damage or liability arises
out of or is based upon a breach of any representation, warranty or covenant
made by the Seller in or pursuant to this Agreement and the Seller shall
indemnify the Company with respect to any amounts that are paid by the Company
under subsection (a) above to the extent that any such loss, claim, damage or
liability arises out of or is based upon a breach of any representation,
warranty or covenant made by the Seller in or pursuant to this Agreement. The
Company and the Seller agree that the foregoing indemnities shall not diminish
or reduce their respective obligations under subsection (a) above and if the
preceding sentence is held to be invalid or unenforceable for any reason, the
parties hereto agree that the respective indemnities in subsections (a), (b) and
(c) above shall remain in full force and effect, as if this Agreement had been
executed without this subsection (g).
9. (a) If any Underwriter shall default in its obligation to purchase
the Securities which it has agreed to purchase hereunder, you may in your
discretion arrange for you or another party or other parties to purchase such
Securities on the terms contained herein at a Time of Delivery. If within
thirty-six hours after such default by any Underwriter you do not arrange for
the purchase of such Securities, then the Company, the Trust and the Seller
shall be entitled to a further period of thirty-six hours within which to
procure another party or other parties satisfactory to you to purchase such
Securities on such terms. In the event that, within the respective prescribed
periods, you notify the Company, the Trust and the Seller that you have so
arranged for the purchase of such Securities, or the Company, the Trust and the
Seller notify you that it has so arranged for the purchase of such Securities,
you or the Company, the Trust and the Seller shall have the right to postpone
such Time of Delivery for a period of not more than seven days, in order to
effect whatever changes may thereby be made necessary in the Registration
Statements or the Prospectuses, or in any other documents or arrangements, and
the Company, the Trust and the Seller agree to file promptly any amendments to
the Registration Statements or the Prospectuses which in your opinion may
thereby be made necessary. The term "Underwriter" as used in this Agreement
shall include any person substituted under this Section with like effect as if
such person had originally been a party to this Agreement with respect to such
Securities.
(b) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters by you
and the Company, the Trust and the Seller as provided in subsection (a) above,
the aggregate principal amount of such Securities which remains unpurchased does
not exceed one-eleventh of the aggregate principal amount of all the Securities
to be purchased at such Time of Delivery, then the Company, the Trust and the
Seller shall have the right to require each non-defaulting Underwriter to
purchase the principal amount of Securities which such Underwriter agreed to
purchase hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
principal amount of
40
Securities which such Underwriter agreed to purchase hereunder) of the
Securities of such defaulting Underwriter or Underwriters for which such
arrangements have not been made; but nothing herein shall relieve a defaulting
Underwriter from liability for its default.
(c) If, after giving effect to any arrangements for the
purchase of the Securities of a defaulting Underwriter or Underwriters by you
and the Company, the Trust and the Seller as provided in subsection (a) above,
the aggregate principal amount of such Securities which remains unpurchased
exceeds one-eleventh of the aggregate principal amount of all the Securities to
be purchased at such Time of Delivery, or if the Company, the Trust and the
Seller shall not exercise the right described in subsection (b) above to require
non-defaulting Underwriters to purchase Securities of a defaulting Underwriter
or Underwriters, then this Agreement (or, with respect to the Second Time of
Delivery, the obligations of the Underwriters to purchase and of the Trust to
sell the Optional Securities) shall thereupon terminate, without liability on
the part of any non-defaulting Underwriter or the Company, the Trust and the
Seller, except for the expenses to be borne by the Company, the Trust, the
Seller and the Underwriters as provided in Section 6 hereof and the indemnity
and contribution agreements in Section 8 hereof; but nothing herein shall
relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company, the Trust, the Seller and the several
Underwriters, as set forth in this Agreement or made by or on behalf of them,
respectively, pursuant to this Agreement, shall remain in full force and effect,
regardless of any investigation (or any statement as to the results thereof)
made by or on behalf of any Underwriter or any controlling person of any
Underwriter, or the Company, the Trust or the Seller or any officer or director
or controlling person of the Company, the Trust or the Seller and shall survive
delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
neither the Company, the Trust nor the Seller shall then be under any liability
to any Underwriter except as provided in Sections 6 and 8 hereof; but, if for
any other reason, any Securities are not delivered by or on behalf of the Trust
as provided herein, the Seller will reimburse the Underwriters through you for
all out-of-pocket expenses approved in writing by you, including fees and
disbursements of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Securities not so
delivered, but the Company, the Trust and the Seller shall then be under no
further liability to any Underwriter in respect of the Securities not so
delivered except as provided in Sections 6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxxx, Xxxxx & Co. on behalf of you as the
representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the representatives at 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, Attention:
41
Registration Department; if to the Trust shall be delivered or sent by mail,
telex or facsimile transmission in care of Xxxxxx X. Xxxxxxx, Xxxxxxx &
Associates, 000 Xxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000; if to the
Company shall be delivered or sent by mail, telex or facsimile transmission to
the Company in care of Amdocs, Inc. 0000 Xxx Xxxxx Xxxx, Xx. Xxxxx, Xxxxxxxx,
00000-0000, Attention: Secretary; and if to the Seller shall be delivered or
sent by mail, telex or facsimile transmission to ; provided, however, that any
notice to an Underwriter pursuant to Section 8(c) hereof shall be delivered or
sent by mail, telex or facsimile transmission to such Underwriter at its address
set forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company by you upon
request. Any such statements, requests, notices or agreements shall take effect
upon receipt thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company, the Trust, the Seller and, to the
extent provided in Sections 8 and 10 hereof, the officers and directors of the
Company, the Trust, the Seller and each person who controls the Company or any
Underwriter, and their respective heirs, executors, administrators, successors
and assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement. No purchaser of any of the Securities from any
Underwriter shall be deemed a successor or assign by reason merely of such
purchase.
14. Each of the parties hereto irrevocably (i) agrees that any legal
suit, action or proceeding against the Company or the Seller brought by any
Underwriter or by any person who controls any Underwriter arising out of or
based upon this Agreement or the transactions contemplated hereby may be
instituted in any New York Court, (ii) waives, to the fullest extent it may
effectively do so, any objection which it may now or hereafter have to the
laying of venue of any such proceeding and (iii) submits to the exclusive
jurisdiction of such courts in any such suit, action or proceeding. Each of the
Company and the Seller has appointed Amdocs Inc., St. Louis, Missouri, as its
authorized agent (the "Authorized Agent") upon whom process may be served in any
such action arising out of or based on this Agreement or the transactions
contemplated hereby which may be instituted in any New York Court by any
Underwriter or by any person who controls any Underwriter, expressly consents to
the jurisdiction of any such court in respect of any such action, and waives any
other requirements of or objections to personal jurisdiction with respect
thereto. Such appointment shall be irrevocable. Each of the Company and the
Seller represents and warrants that the Authorized Agent has agreed to act as
such agent for service of process and agrees to take any and all action,
including the filing of any and all documents and instruments, that may be
necessary to continue such appointment in full force and effect as aforesaid.
Service of process upon the Authorized Agent and written notice of such service
to the Company and the Seller, as applicable, shall be deemed, in every respect,
effective service of process upon the Company and the Seller, as the case may
be.
15. In respect of any judgment or order given or made for any amount
due hereunder that is expressed and paid in a currency (the "judgment currency")
other than United States dollars, the Company and the Seller, as the case may
be, will indemnify each Underwriter against any loss incurred by such
Underwriter as a result of any variation as
42
between (i) the rate of exchange at which the United States dollar amount is
converted into the judgment currency for the purpose of such judgment or order
and (ii) the rate of exchange at which an Underwriter is able to purchase United
States dollars with the amount of the judgment currency actually received by
such Under writer. The foregoing indemnity shall constitute a separate and
independent obligation of the Company and the Seller and shall continue in full
force and effect notwithstanding any such judgment or order as aforesaid. The
term "rate of exchange" shall include any premiums and costs of exchange payable
in connection with the purchase of or conversion into United States dollars.
16. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
17. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK.
18. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such counterparts shall together constitute one and the same
instrument.
43
If the foregoing is in accordance with your understanding,
please sign and return to us ten counterparts hereof, and upon the acceptance
hereof by you, on behalf of each of the Underwriters, this letter and such
acceptance hereof shall constitute a binding agreement between each of the
Underwriters, the Trust, the Company and the Seller. It is understood that your
acceptance of this letter on behalf of each of the Underwriters is pursuant to
the authority set forth in a form of Agreement among Underwriters, the form of
which shall be submitted to the Company for examination upon request, but
without warranty on your part as to the authority of the signers thereof.
Very truly yours,
Amdocs Limited
By :
-----------------------------------
Name:
Title:
Amdocs Automatic Common Exchange
Security Trust
By:
-----------------------------------
Name: Xxxxxx X. Xxxxxxx
By:
-----------------------------------
Name: Xxxxxxx X. Xxxxxx III
By:
-----------------------------------
Name: Xxxxx X. X'Xxxxx
each a trustee of Amdocs Automatic
Common Exchange Security Trust
Amdocs International Limited
By:
-----------------------------------
Name:
Title:
44
Accepted as of the date hereof:
Xxxxxxx, Sachs & Co.
BT Alex. Xxxxx Incorporated
Xxxxxx Brothers Inc.
By:
-----------------------------------
(Xxxxxxx, Xxxxx & Co.)
On behalf of each of the Underwriters
45
SCHEDULE I
Number of Optional
Shares to be
Total Number of Purchased if
Firm Shares Maximum Option
Underwriter to be Purchased Exercised
Xxxxxxx, Sachs & Co.
BT Alex. Xxxxx Incorporated
Xxxxxx Brothers Inc.
Total
46
SCHEDULE II
47
ANNEX I
Pursuant to Section 7(l) of the Underwriting Agreement, the accountants
shall furnish letters to the Underwriters to the effect that:
(i) They are independent certified public accountants
with respect to the Company and its subsidiaries within the
meaning of the Act and the applicable published rules and
regulations thereunder;
(ii) In their opinion, the financial statements
examined by them and included in the Prospectus or the
Registration Statement comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related published rules and regulations
thereunder;
(iii) They have made a review in accordance with
standards established by the American Institute of Certified
Public Accountants of the unaudited condensed consolidated
statements of operations, consolidated balance sheets,
consolidated statement of changes in shareholders' equity and
consolidated statements of cash flows included in the
Prospectus; and on the basis of specified procedures including
inquiries of officials of the Company who have responsibility
for financial and accounting matters regarding whether the
unaudited condensed consolidated financial statements referred
to in paragraph (vi)(1)(i) below comply as to form in all
material respects with the applicable accounting requirements
of the Act and the related published rules and regulations,
nothing came to their attention that caused them to believe
that the unaudited condensed consolidated financial statements
do not comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
published rules and regulations;
(iv) They have compared the information in the
Prospectus under selected captions with the disclosure
requirements of Regulation S-K and on the basis of limited
procedures specified in such letter nothing came to their
attention as a result of the foregoing procedures that caused
them to believe that this information does not conform in all
material respects with the disclosure requirements of Item 8
of Form 20-F and of Regulation S-K;
(v) On the basis of limited procedures, not
constituting an examination in accordance with generally
accepted auditing standards, consisting of a reading of the
unaudited financial statements and other information referred
to below, a reading of the latest available interim financial
statements of the Company and its subsidiaries, inspection of
the minute books of the Company and its subsidiaries since the
date of the latest audited financial statements included in
the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial and accounting matters
and such other inquiries and procedures as may be specified in
such letter, nothing came to their attention that caused them
to believe that:
48
(1) (i) the unaudited consolidated
statements of operations, consolidated
balance sheets, consolidated statement of
changes in shareholders' equity and
consolidated statements of cash flows
included in the Prospectus do not comply as
to form in all material respects with the
applicable accounting requirements of the
Act and the related published rules and
regulations, or (ii) any material
modifications should be made to the
unaudited consolidated statements of
operations, consolidated balance sheets,
consolidated statement of changes in
shareholders' equity and consolidated
statements of cash flows included in the
Prospectus for them to be in conformity with
generally accepted accounting principles;
(2) any other unaudited income
statement data and balance sheet items
included in the Prospectus do not agree with
the corresponding items in the unaudited
consolidated financial statements from which
such data and items were derived, and any
such unaudited data and items were not
determined on a basis substantially
consistent with the basis for the
corresponding amounts in the audited
consolidated financial statements included
in the Prospectus;
(3) the unaudited financial
statements which were not included in the
Prospectus but from which were derived any
unaudited condensed financial statements
referred to in Clause (1) and any unaudited
income statement data and balance sheet
items included in the Prospectus and
referred to in Clause (2) were not
determined on a basis substantially
consistent with the basis for the audited
consolidated financial statements included
in the Prospectus;
(4) as of , 1999, there have been
any changes in the consolidated capital
stock (other than issuances of capital stock
upon exercise of options and stock
appreciation rights, upon earn-outs of
performance shares and upon conversions of
convertible securities, in each case which
were outstanding on the date of the latest
financial statements included in the
Prospectus) or any increase in the
consolidated long-term debt of the Company
and its subsidiaries, or any decreases in
consolidated net current assets or
shareholders' equity, in each case as
compared with amounts shown in the latest
balance sheet included in the Prospectus,
except in each case for changes, increases
or decreases which the Prospectus discloses
have occurred or may occur or which are
described in such letter;
(5) for the period from the date of
the latest financial statements included in
the Prospectus to the specified date
referred to in Clause (4) there were any
decreases in consolidated net revenues or
the total or per share amounts of
consolidated
49
net income, in each case as compared with
the comparable period of the preceding year,
except in each case for decreases or
increases which the Prospectus discloses
have occurred or may occur or which are
described in such letter; and
(6) as of a specified date not more
than five days prior to the date of such
letter, there have been any changes in the
consolidated capital stock (other than
issuances of capital stock upon exercise of
options and stock appreciation rights, upon
earn-outs of performance shares and upon
conversions of convertible securities, in
each case which were outstanding on the date
of the latest financial statements included
in the Prospectus) or any increase in the
consolidated long-term debt of the Company
and its subsidiaries, in each case as
compared with amounts shown in the latest
balance sheet included in the Prospectus,
except in each case for changes or increases
which the Prospectus discloses have occurred
or may occur or which are described in such
letter; and
(vi) Although they are unable to and do not express
any opinion on the pro forma consolidated financial statements
of operations (the "Pro Forma Statements"), if any, included
in the Prospectus or on the pro forma adjustments applied to
the historical amounts included in the Pro Forma Statements;
for purposes of this letter they have performed the following
procedures:
1) read the Pro Forma Statements;
2) performed an audit of the financial
statements to which the pro forma
adjustments were applied;
3) made inquires of certain officials
of the Company who have
responsibility for financial and
accounting matters about the basis
for their determination of the pro
forma adjustments and whether the
Pro Forma Statements comply as to
form in all material respects with
the applicable accounting
requirements of Rule 11-02 of
Regulation S-X; and
4) proved the arithmetic accuracy of
the application of the pro forma
adjustments to the historical
amounts in the Pro Forma Statements;
and on the basis of such
procedures and such other inquiries
and procedures as specified herein,
nothing came to their attention that
caused them to believe that (i) the
Pro Forma Statements included in
the Prospectus do not comply as to
form in all material respects with
the applicable requirements of Rule
11-02 of Regulations S-X or (ii) the
pro forma adjustments have not been
properly applied to the historical
amounts in the compilation of those
statements.
50
(vii) In addition to the examination
referred to in their report(s) included in the
Prospectus and the limited procedures, inspection of
minute books, inquiries and other procedures referred
to in paragraphs (iii) and (v) above, they have
carried out certain specified procedures, not
constituting an examination in accordance with
generally accepted auditing standards, with respect
to certain amounts, percentages and financial
information specified by the Representatives, which
are derived from the general accounting records of
the Company and its subsidiaries, which appear in the
Prospectus, or in Part II of, or in exhibits and
schedules to, the Registration Statement specified by
the Representatives, and have compared certain of
such amounts, percentages and financial information
with the accounting records of the Company and its
subsidiaries and have found them to be in agreement.
