Exhibit 1.2
$-
UBS PREFERRED FUNDING TRUST -
(a Delaware statutory business trust)
-% Noncumulative Trust Preferred Securities
representing a corresponding amount of
-% Noncumulative Company Preferred Securities of
UBS PREFERRED FUNDING COMPANY LLC -
(a Delaware limited liability company)
guaranteed on a subordinated basis by
UBS AG
(a bank organized under the laws of Switzerland)
[FORM OF] UNDERWRITING AGREEMENT
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[FORM OF] UNDERWRITING AGREEMENT
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UBS WARBURG LLC
As Representative of the Underwriters
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▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
UBS Preferred Funding Trust - (the "TRUST"), a statutory business trust
organized under the Statutory Trust Act (the "DELAWARE TRUST ACT") of the State
of Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C.
Sections 3801 et seq.), UBS Preferred Funding Company LLC - (the
"COMPANY"), a limited liability company organized under the Limited Liability
Company Act (the "DELAWARE LLC ACT") of the State of Delaware (Chapter 18, Title
6, of the Delaware Code, 6 Del. C. Sections 18-101 et seq.), and UBS AG, a
bank organized under the laws of Switzerland (the "GUARANTOR," and together with
the Trust and the Company, the "UBS ENTITIES"), confirm their agreement (this
"AGREEMENT") with UBS Warburg LLC ("WARBURG") and each of the other underwriters
named in Schedule A hereto (collectively, the "UNDERWRITERS," which term shall
also include any underwriter substituted as hereinafter provided in Section 10
hereof), for whom Warburg is acting as representative (in such capacity,
hereinafter referred to as the "REPRESENTATIVE") with respect to the sale by the
Trust and the purchase by the Underwriters, acting severally and not jointly, of
the respective amounts of -% Noncumulative Trust Preferred Securities
(liquidation preference $[1000] [25] per trust preferred security) (the "TRUST
PREFERRED SECURITIES") representing a corresponding amount of -% Noncumulative
Company Preferred Securities (the "COMPANY PREFERRED Securities") set forth
opposite their names in Schedule A. The Trust Preferred Securities will be
issued pursuant to an Amended and Restated Trust Agreement (the "TRUST
AGREEMENT") to be dated as of the date on which the Closing Time referred to in
Section 2(b) hereof occurs (such date, the "CLOSING DATE"), among the trustee
named therein (the "TRUSTEE") and the Company, as Grantor.
The proceeds from the sale of the Trust Preferred Securities will be used
by the Trust to purchase the Company Preferred Securities, representing limited
liability company interests in the Company. The Company Preferred Securities
will be issued pursuant to the Amended and Restated Limited Liability Company
Agreement of the Company to be dated as of the Closing Date (the "LLC
AGREEMENT") among the Guarantor, as initial holder of the common securities of
the Company (the "COMPANY COMMON SECURITIES") and the Trustee on behalf of the
Trust, as initial holder of the Company Preferred Securities. The Company
Preferred Securities will be guaranteed by the Guarantor to the extent set forth
in the UBS AG Subordinated Guarantee Agreement
(the "GUARANTEE") to be dated as of the Closing Date among the Guarantor and
Wilmington Trust Company, as Guarantee Trustee (the "GUARANTEE TRUSTEE", and
together with the Trustee, the "TRUSTEES"). The Trust Preferred Securities, the
Company Preferred Securities and the Guarantee are referred to herein
collectively as the "SECURITIES."
The Company will use the proceeds from the sale of the Company Preferred
Securities to acquire, among other things, the -% Subordinated Notes of the
Guarantor (the "SUBORDINATED NOTES").
The UBS Entities understand that the Underwriters propose to make a public
offering of the Securities as soon as the Representative deems advisable after
this Agreement has been executed and delivered and the Trust Agreement and the
Guarantee have been qualified under the Trust Indenture Act of 1939, as amended
(the "1939 ACT").
The UBS Entities have filed with the Securities and Exchange Commission
(the "COMMISSION") a shelf registration statement on Form F-3, Registration
Statement No. 333-64844, covering the registration of the Securities under the
Securities Act of 1933, as amended (the "1933 ACT"), in accordance with the
provisions of Rule 415 ("RULE 415") of the rules and regulations of the
Commission under the 1933 Act (the "1933 ACT REGULATIONS"), including the
related basic prospectus. Promptly after execution and delivery of this
Agreement, the UBS Entities will prepare and file a prospectus supplement in
accordance with the provisions of Rule 424(b) ("RULE 424(b)") under the 1933
Act. Each prospectus specifically relating to the Securities used before such
registration statement became effective, or after such effectiveness but prior
to the execution and delivery of this Agreement, is herein called a "PRELIMINARY
PROSPECTUS". Such registration statement, including the exhibits thereto, at the
time it became effective and as amended to the date of this Agreement is herein
called the "REGISTRATION STATEMENT". Any registration statement filed pursuant
to Rule 462(b) of the 1933 Act Regulations is herein referred to as the "RULE
462(b) REGISTRATION STATEMENT", and after such filing the term "REGISTRATION
STATEMENT" shall include the Rule 462(b) Registration Statement. The final
prospectus supplement, in the form first furnished to the Underwriters for use
in connection with the offering of the Securities is herein called the
"PROSPECTUS". As used herein, the terms "PRELIMINARY PROSPECTUS," "PROSPECTUS,"
and "REGISTRATION STATEMENT" shall include in each case the documents, if any,
incorporated by reference therein. The terms "SUPPLEMENT", "AMENDMENT" and
"AMEND", as used herein with respect to the preliminary prospectus, the
Prospectus or the Registration Statement, shall include all documents deemed to
be incorporated by reference in the preliminary prospectus, Prospectus or the
Registration Statement that are filed with the Commission after the date of
effectiveness of the Registration Statement, or the date of any preliminary
prospectus or the Prospectus, as the case may be, pursuant to the Securities
Exchange Act of 1934, as amended (the "1934 ACT").
SECTION 1. Representations and Warranties by the UBS Entities. The UBS
Entities, jointly and severally, represent and warrant to each Underwriter as of
the date
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hereof and as of the Closing Time referred to in Section 2(b) hereof, and agree
with each Underwriter, as follows; provided that (i) each of the Company and the
Trust makes no representations or warranties with respect to the Guarantor or
any of its subsidiaries other than itself and (ii) the representations and
warranties set forth in Sections 1 (c), (i) and (r) are made only by the
Guarantor and not the Company or the Trust:
(a) Compliance with Registration Requirements. The Registration
Statement and any Rule 462(b) Registration Statement has been filed on an
appropriate form under the 1933 Act. The Registration Statement has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement has been issued under the 1933 Act and no proceedings
for that purpose have been instituted or are pending or, to the knowledge of any
of the UBS Entities, are contemplated by the Commission, and any request on the
part of the Commission for additional information has been complied with.
At the respective times the Registration Statement and any post-effective
amendments thereto became effective and at the Closing Time, the Registration
Statement and any amendments thereto complied and will comply in all material
respects with the applicable requirements of the 1933 Act and the 1933 Act
Regulations and the 1939 Act and the rules and regulations of the Commission
under the 1939 Act (the "1939 ACT REGULATIONS"), as applicable, and did not and
will not at the Closing 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 not misleading. Neither the Prospectus nor any amendments
thereto, at the time the Prospectus or any such amendment was issued and at the
Closing Time, included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information furnished to
the UBS Entities in writing by any Underwriter through the Representative
expressly for use in the Registration Statement or Prospectus.
Each preliminary prospectus and the basic prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment thereto,
or filed pursuant to Rule 424 under the 1933 Act, complied when so filed in all
material respects with the 1933 Act Regulations.
(b) Independent Accountants. The independent auditors who certified the
financial statements included in the Registration Statement are independent
public accountants as required by the 1933 Act and the 1933 Act Regulations with
respect to the Guarantor and its subsidiaries.
(c) Good Standing of the UBS Entities. Each of the Guarantor and each of
its subsidiaries that is a "significant subsidiary" as defined under Rule 405 of
the 1933 Act
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Regulations (each a "SIGNIFICANT SUBSIDIARY") has been duly organized or
incorporated under the laws of Switzerland or its respective jurisdiction of
organization or incorporation, as the case may be, except to the extent that the
failure to be duly organized or incorporated would not have a material adverse
effect in the context of the issue of the Securities on the consolidated
financial position and consolidated results of operations of the Guarantor and
its Significant Subsidiaries, taken as a whole (a "MATERIAL ADVERSE EFFECT").
The Trust has been duly created as a statutory trust under the Delaware Trust
Act and the Company has been duly formed as a limited liability company under
the Delaware LLC Act. Each of the Guarantor and each of the Guarantor's
Significant Subsidiaries is validly existing and in good standing under the laws
of its respective jurisdiction of organization or incorporation, is duly
qualified to do business and in good standing in each other jurisdiction in
which qualification is necessary for the ownership of its respective properties
or for the conduct of its respective businesses, except to the extent that the
failure to be validly existing, qualified or in good standing would not have a
Material Adverse Effect. The Trust is and will, under current law, be classified
as a grantor trust and not an association taxable as a corporation for United
States federal income tax purposes.
Each UBS Entity has the power and authority necessary to own or hold its
respective properties, to enter into and perform its respective obligations
under the Transaction Documents (as defined below) to which it is a party and to
conduct the businesses in which it is engaged, as described in the Prospectus,
except to the extent that the failure to do so would not have a Material Adverse
Effect. Each of the Trust and the Company is not a party to or otherwise bound
by any agreement other than the Transaction Documents (as defined below) and
agreements ancillary to consummating the transactions contemplated by the
Transaction Documents (as defined below).
(d) Authorization of Agreement. This Agreement has been duly authorized,
executed and delivered (if applicable under applicable law) by each of the UBS
Entities.
(e) Absence of Defaults and Conflicts; Absence of Further Requirements.
None of the UBS Entities or any of the Significant Subsidiaries is in violation
of the constituent documents, charter or by-laws or in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which any of the UBS Entities or such
Significant Subsidiary is a party or by which any of them may be bound, or to
which any of the property or assets of any of the UBS Entities or any such
Significant Subsidiary is subject, except a default in performance or observance
of an obligation, agreement, covenant or condition that does not have and is not
likely to have a Material Adverse Effect. The execution, delivery (if applicable
under applicable law) and performance of this Agreement, the Trust Agreement,
the LLC Agreement, the Guarantee, the Subordinated Notes and the Administration
Agreement to be dated as of the Closing Date among the Guarantor and the Company
(the "ADMINISTRATION AGREEMENT" and, together with this Agreement, the LLC
Agreement, the Guarantee and the Subordinated Notes, the "UBS DOCUMENTS", and,
together with the Trust Agreement,
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the "TRANSACTION DOCUMENTS") by the Guarantor, the Company and the Trust, as the
case may be, and the consummation of the transactions contemplated hereby and
thereby do not and will not conflict with or result in a breach or violation of
any of the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any property
or assets of the UBS Entities or any Significant Subsidiary under any material
indenture, mortgage, deed of trust, loan agreement or other material agreement
or instrument to which any of the UBS Entities or any such Significant
Subsidiary is a party or by which any of them is bound or to which any of their
property or assets is subject, except for any such conflict, breach, violation
or default which is waived or will not have (A) a material adverse effect on the
transactions contemplated by any of the Transaction Documents or (B) a Material
Adverse Effect; nor will such actions result in any violation of the provisions
of the Articles of Association of the Guarantor, the Trust Agreement or the LLC
Agreement or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the UBS Entities or any
Significant Subsidiary or any of their properties or assets, except for a
violation that will not have a Material Adverse Effect; and, except such as have
been obtained or required under the 1933 Act or the 1933 Act Regulations, the
1934 Act or the rules and regulations of the Commission under the 1934 Act (the
"1934 ACT REGULATIONS") or state securities laws and the qualification of the
Trust Agreement and the Guarantee under the 1939 Act, no consent, approval,
authorization or order of, or filing or registration with, any such court or
governmental agency or body or any stock exchange authorities in Switzerland or
the United States is required to be made or obtained by any of the UBS Entities
in connection with the offering, issuance, and sale of the Securities or the
execution, delivery and performance by the UBS Entities of each of the
Transaction Documents, as applicable.
(f) No Material Adverse Change. Since the respective dates as of which
information is given in the Registration Statement and the Prospectus, except as
otherwise stated therein, (a) there has not been any change in the share capital
or long-term debt of the Guarantor or any of its subsidiaries that is material
to the consolidated financial position of the Trust, the Company or the
Guarantor, and (b) there has been no change, or, to the best of the knowledge of
each of the UBS Entities, any development involving a prospective change, in or
affecting the business, general affairs, management, consolidated financial
position, consolidated shareholders' equity or consolidated results of
operations of the Trust, the Company or the Guarantor, otherwise than as set
forth or contemplated in the Prospectus that has had, or is likely to have, a
Material Adverse Effect.
(g) Investment Company Act. None of the UBS Entities is, or after giving
effect to the offering and sale of the Securities and the application of the net
proceeds therefrom as described in the forepart of this Agreement and in the
Prospectus will be, required to register as an "investment company" under the
Investment Company Act of 1940, as amended (the "1940 ACT").
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(h) Absence of Proceedings. Except as disclosed in the Prospectus, there
is no action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending to which any of the
UBS Entities or any Significant Subsidiary of the Guarantor is a party or of
which any property or assets of any of them is the subject which, if determined
adversely to any of them, are likely, individually or in the aggregate, to have
a Material Adverse Effect or could adversely affect the consummation of the
transactions contemplated by this Agreement or the performance by any of the UBS
Entities of its obligations hereunder, and, to the best of the knowledge of each
of the UBS Entities, no such proceedings are threatened or contemplated.
(i) Authorization of Trust Agreement. The Trust Agreement has been duly
authorized by the Company and, at the Closing Time, will have been executed and
delivered by the Company, as Grantor, and, assuming due authorization, execution
and delivery of the Trust Agreement by the Trustee, the Trust Agreement will, at
the Closing Time, be a valid and binding obligation of the Company enforceable
against it in accordance with its terms, except to the extent that enforcement
thereof may be limited by bankruptcy, insolvency (including, without limitation,
all laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and except to
the extent that enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in equity or at
law) (the "BANKRUPTCY EXCEPTIONS"); and, at the Closing Time, the Trust
Agreement will have been duly qualified under the 1939 Act.
(j) Authorization of Trust Preferred Securities. At the Closing Time,
the Trust Preferred Securities will have been duly authorized by the Trust
Agreement and, when issued and delivered against payment of the consideration
set forth in this Agreement, will be validly issued and (subject to the terms of
the Trust Agreement) fully paid and non-assessable and will be entitled to the
benefits of the Trust Agreement; and the issuance of the Trust Preferred
Securities is not subject to preemptive or other similar rights; and (subject to
the terms of the Trust Agreement) holders of Trust Preferred Securities will be
entitled to the same limitation of personal liability under Delaware law as
extended to stockholders of private corporations for profit.
(k) Authorization of Guarantee. The Guarantee has been duly authorized
by the Guarantor and, when validly executed and delivered (if applicable under
applicable law) by the Guarantor and, assuming due authorization, execution and
delivery of the Company Preferred Securities Guarantee by the Guarantee Trustee,
will constitute a valid and binding obligation of the Guarantor, enforceable
against the Guarantor in accordance with its terms, except to the extent that
enforcement thereof may be limited by the Bankruptcy Exceptions. At the Closing
Time, the Guarantee will have been duly qualified under the 1939 Act.
(l) Authorization of the LLC Agreement. The LLC Agreement has been duly
authorized by the Guarantor and the Trust and, at the Closing Time, will have
been duly
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executed and delivered by the Guarantor and the Trust, and will be a valid and
legally binding obligation of the Guarantor and the Trust, enforceable against
each of them in accordance with its terms, except to the extent that enforcement
thereof may be limited by the Bankruptcy Exceptions.
(m) Authorization of the Company Common Securities. At the Closing Time,
the Company Common Securities will have been duly authorized by the LLC
Agreement and, when issued and delivered by the Company to the Guarantor against
payment therefor as described in the Registration Statement and Prospectus, will
be validly issued and (subject to the terms of the LLC Agreement) fully paid
limited liability company interests; the issuance of the Company Common
Securities is not subject to preemptive or other similar rights; and at the
Closing Time all of the issued and outstanding Company Common Securities of the
Company will be directly owned by the Guarantor free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
(n) Authorization of the Company Preferred Securities. At the Closing
Time, the Company Preferred Securities will have been duly authorized by the LLC
Agreement and, when issued and delivered by the Company to the Trust against
payment therefor as described in the Registration Statement and Prospectus, will
be validly issued and (subject to the terms of the LLC Agreement) fully paid
limited liability company interests; the issuance of the Company Preferred
Securities is not subject to preemptive or other similar rights; and at the
Closing Time all of the issued and outstanding Company Preferred Securities of
the Company will be directly owned by the Trust (subject to the rights of
holders of the Trust Preferred Securities) free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity other than claims
of holders of the Trust Preferred Securities.
(o) Authorization of the Administration Agreement. The Administration
Agreement has been duly authorized by the Guarantor and the Company and, at the
Closing Time, will have been duly executed and delivered by the Guarantor and
the Company and will constitute a valid and binding obligation of the Guarantor
and the Company, enforceable against the Guarantor and the Company in accordance
with its terms, except to the extent that enforcement thereof may be limited by
the Bankruptcy Exceptions.
(p) Payments under the Guarantee. All payments, if any, made by the
Guarantor under the Guarantee may, under the current laws and regulations of
Switzerland, be paid by the Guarantor in United States dollars and may be freely
transferred out of Switzerland, and may be paid under the current laws and
regulations of Switzerland without the necessity of obtaining any consent,
approval, authorization, registration or other action by, or filing with, any
governmental authority of Switzerland, except as described or contemplated in
the Registration Statement and except for such prohibitions that would not
materially aversely affect the financial condition or results of operation of
the Guarantor in the context of the issue of the Securities.
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(q) Fair Summary. [The statements set forth in the Prospectus under the
captions "UBS Preferred Funding Trust -", "UBS Preferred Funding Company LLC -",
"Description of Trust Preferred Securities", "Description of Company Preferred
Securities", "Description of the UBS AG Subordinated Guarantee" and "Description
of Subordinated Notes of UBS AG" insofar as they purport to constitute a summary
of the terms of the Securities and each of the Transaction Documents referred to
therein and under the captions "U.S. Tax Considerations" and "Tax Considerations
Under the Laws of Switzerland" insofar as they purport to describe the
provisions of the laws and documents referred to therein are, in all material
respects, accurate, complete and fair.]
(r) Officer's Certificate. Any certificate signed by the Trustee, an
officer of any of the UBS Entities or any of its subsidiaries and delivered to
the Underwriters or to counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
relevant UBS Entities to each Underwriter as to the matters covered thereby on
the date of such certificate.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Trust agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Trust, at
the initial public offering price set forth in Schedule B, the number of Trust
Preferred Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Trust Preferred Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Trust Preferred Securities shall be made at the offices of
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ or at such other place as shall be agreed upon by the
Representative and the UBS Entities, at 10:00 a.m. (Eastern time) on the third
business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business days
after such date as shall be agreed upon by the Representative and the UBS
Entities (such time and date of payment and delivery being herein called the
"CLOSING TIME").
Payment shall be made to the Trust by wire transfer of immediately
available funds to a bank account designated by the UBS Entities, against
delivery to such persons designated by the Representative for the respective
accounts of the Underwriters of one or more certificates in global form for the
Trust Preferred Securities to be purchased by them. It is understood that each
Underwriter has authorized the Representative, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the Trust
Preferred Securities which it has agreed to purchase. Warburg, individually and
not as representative of the Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the Trust Preferred Securities to be
purchased by any
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Underwriter whose funds have not been received by the Closing Time, but such
payment shall not relieve such Underwriter from its obligations hereunder.
The purchase price per Trust Preferred Security to be paid by the several
Underwriters for the Trust Preferred Securities shall be an amount equal to the
initial public offering price as set forth in Schedule B.
As compensation to the Underwriters for their commitments hereunder, the
Company hereby agrees to pay at the Closing Time to the Representative, for the
accounts of the several Underwriters, a commission per Trust Preferred Security
set forth on Schedule B. At the Closing Time, the Company will pay, or cause to
be paid, such commission by wire transfer of immediately available funds to a
bank account designated by the Representative for the account of Underwriters.
(c) Denominations; Registration. Certificates for the Trust Preferred
Securities shall be in such denominations and registered in such names as the
Representative may request in writing at least one business day before the
Closing Time. The Trust Preferred Securities will be made available for
examination and packaging by the Representative in the City of New York not
later than 10:00 a.m. (Eastern time) on the business day prior to the Closing
Time.
(d) [Foreign Selling Restrictions. Each Underwriter represents and
agrees that (i) it has not offered or sold and prior to the expiry of the period
of six months from the Closing Date will not offer or sell any Trust Preferred
Securities to persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purpose of their business or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (ii) it has complied and will comply with
all applicable provisions of the Financial Services ▇▇▇ ▇▇▇▇ of Great Britain
with respect to anything done by it in relation to the Trust Preferred
Securities in, from or otherwise involving the United Kingdom; and (iii) it has
only issued or passed on and will only issue or pass on in the United Kingdom
any document received by it in connection with the issue of the Trust Preferred
Securities to a person who is of a kind described in Article 11(3) of the
Financial Services ▇▇▇ ▇▇▇▇ (Investment Advertisements) (Exemptions) Order 1996
of Great Britain or is a person to whom the document may otherwise lawfully be
issued or passed on.]
(e) Suitability Restrictions. Each Underwriter represents and agrees
that it will not execute any transaction in a discretionary account without
prior written approval of the transaction by the customer.
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SECTION 3. Covenants of the UBS Entities.
The UBS Entities covenant with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
UBS Entities, subject to Section 3(b), will comply with the requirements of Rule
424(b) and will notify the Representative immediately, and confirm the notice in
writing, (i) when any post-effective amendment to the Registration Statement
shall become effective or any amended Prospectus shall have been filed, (ii) of
the receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment to
the Prospectus or for additional information and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceeding for any of such purposes. The UBS Entities will make reasonable
efforts to prevent the issuance of any stop order and, if any stop order is
issued, to obtain the lifting thereof at the earliest possible moment.
(b) Filing of Amendments. During the period when the Underwriters are
required to deliver a prospectus with respect to the Securities, the UBS
Entities will give the Representative notice of its intention to file or prepare
any amendment to the Registration Statement (including any filing under Rule
462(b)), or any amendment or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectus,
whether pursuant to the 1933 Act, the 1934 Act or otherwise, will furnish the
Representative with copies of any such documents a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file or
use any such document to which the Representative or counsel for the
Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The UBS Entities have furnished
or will deliver to the Representative and counsel for the Underwriters, without
charge, conformed copies of the Registration Statement as originally filed and
of each amendment thereto (including exhibits filed therewith) and conformed
copies of all consents and certificates of experts, and will also deliver to the
Representative upon request, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters.
(d) Delivery of Prospectuses. The UBS Entities have delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the UBS Entities hereby consent to
the use of such copies for purposes permitted by the 1933 Act. The UBS Entities
will furnish to each Underwriter, without charge, during the period when the
prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus
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(as amended), and documents incorporated by reference therein, as such
Underwriter may reasonably request.
(e) Continued Compliance with Securities Laws. The UBS Entities will
comply with the 1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934
Act Regulations and the 1939 Act and the 1939 Act Regulations with respect to
the offer of the Securities so as to permit the completion of the distribution
of the Securities as contemplated in this Agreement and in the Prospectus. If at
any time when a prospectus is required by the 1933 Act to be delivered in
connection with sales of the Trust Preferred Securities, any event shall occur
or condition shall exist as a result of which it is necessary, in the opinion of
counsel for the Underwriters or for the UBS Entities, to amend the Registration
Statement or amend the Prospectus in order that the Prospectus will not include
any untrue statements of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in the light of
the circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the UBS Entities will
promptly prepare and file with the Commission, subject to Section 3(b), such
amendment as may be necessary to correct such statement or omission or to make
the Registration Statement or the Prospectus comply with such requirements, and
the UBS Entities will furnish to the Underwriters such number of copies of such
amendment as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The UBS Entities will use all reasonable
efforts, in cooperation with the Underwriters, to qualify the Securities for
offering and sale under the applicable securities laws of such states and other
domestic or foreign jurisdictions as the Representative may designate and to
maintain such qualifications in effect for a period of one year from the later
of the effective date of the Registration Statement or, if less, such other
period as may be necessary to complete the distribution of the Securities;
provided, however, that the UBS Entities shall not be obligated to file any
general consent to service of process or to qualify as a foreign corporation or
as a dealer in securities in any jurisdiction in which it is not so qualified or
to subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject. In each domestic or foreign
jurisdiction in which the Securities have been so qualified, the UBS Entities
will file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement.
(g) Rule 158. The UBS Entities will timely file such reports pursuant to
the 1934 Act as are necessary in order to make generally available to their
security holders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
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(h) Use of Proceeds. The UBS Entities will use or cause to be used the
net proceeds received from the sale of the Securities in the manner specified in
the Prospectus under "Use of Proceeds."
(i) Listing. The UBS Entities will use all reasonable efforts to effect
the listing of the Trust Preferred Securities on the [insert applicable stock
exchanges].
(j) Ratings. The UBS Entities shall take all reasonable action necessary
to enable ▇▇▇▇▇'▇ Investors Service, Inc. ("MOODY'S"), Standard & Poor's Ratings
Service, a division of McGraw Hill, Inc. ("S&P"), and Fitch, Inc. ("FITCH") to
provide their respective ratings of the Trust Preferred Securities and the
Company Preferred Securities.
(k) Clearance and Settlement. The UBS Entities will cooperate with the
Underwriters and take all reasonable action necessary if requested by the
Representative to permit the Trust Preferred Securities to be eligible for
clearance and settlement through the facilities of The Depository Trust Company
("DTC"), Euroclear Bank, S.A., as the operator of the Euroclear System
("EUROCLEAR"), and Clearstream Banking SA ("CLEARSTREAM").
(l) Restriction on Sale of Securities. Except as contemplated by this
Agreement, during a period of 30 days from the date of the Prospectus, neither
the Trust nor the Company nor any other subsidiary of the Guarantor that is
similar to the Trust or the Company will, without the prior written consent of
the Representative, directly or indirectly, sell, offer to sell, grant any
option for sale of, or otherwise dispose of, any Trust Preferred Securities or
any Company Preferred Securities or any security convertible into or
exchangeable into or exercisable for Trust Preferred Securities or Company
Preferred Securities.
(m) Reporting Requirements. The UBS Entities, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses.
(a) Expenses. The UBS Entities will pay all expenses incident to the
performance of their obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment
thereto, (ii) the preparation, copying and delivery to the Underwriters of each
of the Transaction Documents and such other documents as may be required in
connection with the offering, purchase, sale, issuance or delivery of the
Securities (other than fees of counsel for the Underwriters related thereto),
(iii) the preparation, issuance and delivery of the certificates for the Trust
Preferred Securities to the Underwriters, (iv) the fees and disbursements of the
UBS Entities' counsel, accountants, experts and other advisors, (v) the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including
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filing fees and the reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with the preparation of
the Blue Sky Survey and any supplement thereto, (vi) the printing and delivery
to the Underwriters of copies of each preliminary prospectus and of the
Prospectus and any amendments thereto, (vii) the fees and expenses of the
Trustees, including the reasonable fees and disbursements of counsel for the
Trustees, (viii) any fees payable in connection with the rating of the Trust
Preferred Securities and the Company Preferred Securities, (ix) the fees and
expenses incurred in connection with the listing of the Trust Preferred
Securities on the [insert applicable stock exchanges], (x) the fees and expenses
incurred in connection with the approval by DTC, Euroclear and Clearstream of
the Trust Preferred Securities for clearance through their respective systems,
and (xi) all filing fees and the reasonable fees and disbursements counsel to
the Underwriters incurred in connection with the review and qualification of the
offering of the Securities by the National Association of Securities Dealers,
Inc.
(b) Termination of Agreement. If this Agreement is terminated by the
Representative in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the UBS Entities shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
[insert name of counsel for underwriters], counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations.
The obligations of the several Underwriters hereunder are subject to the
accuracy in all material respects of the representations and warranties of the
UBS Entities contained in Section 1 hereof and in certificates of any officer of
the UBS Entities or any affiliate or subsidiary of the UBS Entities delivered
pursuant to the provisions hereof, to the performance by each of the UBS
Entities in all material respects of its covenants and other obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. The Registration Statement
has become effective and at the Closing Time no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission, and
any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the
Underwriters. At the Closing Time, a prospectus shall have been filed with the
Commission in accordance with Rule 424(b).
(b) Opinion of Swiss Counsel. At the Closing Time, the Representative
shall have received a written opinion, dated as of the Closing Time, of Bar &
▇▇▇▇▇▇, Swiss counsel, in form and substance reasonably satisfactory to counsel
for the Underwriters, together with signed or reproduced copies of such opinion
for each of the other Underwriters, to the effect set forth in Exhibit A. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the UBS Entities and certificates of public officials and
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may contain other customary or appropriate assumptions and qualifications
reasonably satisfactory to counsel for the Underwriters.
(c) Opinion of U.S. Counsel for the UBS Entities. At the Closing Time,
the Representative shall have received a written opinion, dated as of the
Closing Time, of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, U.S. counsel for the UBS Entities, in form
and substance reasonably satisfactory to counsel for the Underwriters, together
with signed or reproduced copies of such opinion for each of the other
Underwriters, to the effect set forth in Exhibit B hereto. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the UBS
Entities and certificates of public officials. Such opinion also may contain
other customary or appropriate assumptions and qualifications reasonably
satisfactory to counsel for the Underwriters.
(d) Opinion of Delaware Counsel for the UBS Entities. At the Closing
Time, the Representative shall have received a written opinion, dated as of the
Closing Time, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., Delaware counsel for the UBS
Entities, in form and substance reasonably satisfactory to counsel for the
Underwriters, together with signed or reproduced copies of such opinion for each
of the other Underwriters, to the effect set forth in Exhibit C hereto. Such
counsel may also state that, insofar as such opinion involves factual matters,
they have relied, to the extent they deem proper, upon certificates of officers
of the UBS Entities and certificates of public officials. Such opinion may also
contain other customary or appropriate assumptions and qualifications reasonably
satisfactory to counsel for the Underwriters.
(e) Opinion of Counsel for Underwriters. At the Closing Time, the
Representative shall have received the favorable opinion, dated as of the
Closing Time, of [insert name of counsel for underwriters], counsel for the
Underwriters, together with signed or reproduced copies of such opinion for each
of the other Underwriters, in form and substance satisfactory to the
Underwriters.
(f) Opinion of Counsel for the Trustees. At the Closing Time, the
Representative shall have received a written opinion, dated as of the Closing
Time, of ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & Finger, P.A., counsel for the Trustees, in form and
substance reasonably satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such opinion for each of the other Underwriters,
to the effect set forth in Exhibit D hereto and to such further effect as
counsel for the Underwriters may reasonably request.
(g) Opinion of U.S. Tax Counsel. At the Closing Time, the Representative
shall have received a written opinion, dated as of the Closing Time, of ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇, U.S. tax counsel for the UBS Entities, in form and substance
satisfactory to counsel for the Underwriters, together with signed or reproduced
copies of such opinion for each of the other Underwriters. Such opinion shall
confirm ▇▇▇▇▇▇▇▇ & Cromwell's opinion set forth in the Prospectus under the
caption "U.S. Tax Considerations" and state
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that, subject to the qualifications set forth therein, the discussion set forth
in the Prospectus under such caption is their opinion and is an accurate summary
of the U.S. tax matters described therein. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the UBS Entities and
certificates of public officials. Such opinion may also contain other customary
appropriate assumptions and qualifications reasonably satisfactory to counsel
for the Underwriters.
(h) Opinion of Swiss Tax Advisor. At the Closing Time, the
Representative shall have received a written opinion, dated as of the Closing
Time, of Ernst & Young Ltd., Switzerland, Swiss tax advisor for the UBS
Entities, in form and substance satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such opinion for each of the other
Underwriters. Such opinion shall confirm Ernst & Young Ltd., Switzerland's
opinion set forth in the Prospectus under the caption "Tax Considerations Under
the Laws of Switzerland" and state that, subject to the qualifications set forth
therein, the discussion set forth in the Prospectus under such caption is their
opinion and is an accurate summary of the Swiss tax matters described therein.
Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates of
officers of the UBS Entities and certificates of public officials. Such opinion
may also contain other customary appropriate assumptions and qualifications
reasonably satisfactory to counsel for the Underwriters.
(i) Officers' Certificate. At the Closing Time, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Prospectus, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the UBS Entities and their subsidiaries, considered as one
enterprise, and the Representative shall have received certificates of an
executive of each of the UBS Entities, dated as of the Closing Time, to the
effect that there has been no such adverse change that is material in the
context of the issue of the Securities, the representations and warranties in
Section 1 hereof were true and correct in all material respects when made and
are true and correct in all material respects with the same force and effect as
though expressly made at and as of the Closing Time (without giving effect to
any limitation as to "materiality" or "Material Adverse Effect" set forth in the
applicable representation or warranty), the UBS Entities shall have complied in
all material respects with all agreements and satisfied all conditions on their
part to be performed or satisfied at or prior to the Closing Time, and no stop
order suspending the effectiveness of the Registration Statement has been issued
and, to such officer's knowledge, no proceedings for that purpose have been
instituted or are pending or are contemplated by the Commission.
(j) Accountant's Comfort Letters. At the time of the execution of this
Agreement, the Representative shall have received from Ernst & Young LLP a
letter, dated as of the date hereof, in form and substance reasonably
satisfactory to the Representative, together with signed or reproduced copies of
such letter for each of the
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other Underwriters, containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus, including reports incorporated by
reference therein, in each case as specified by counsel for the Underwriters.
(k) Bring-down Comfort Letters. At the Closing Time, the Representative
shall have received from Ernst & Young LLP a letter, dated as of the Closing
Time, to the effect that they reaffirm the statements made in the letter
furnished pursuant to subsection (j) of this Section, except that the specified
date referred to shall be a date not more than five business days prior to the
Closing Time.
(l) Maintenance of Rating. At the Closing Time, the Trust Preferred
Securities and the Company Preferred Securities shall be rated at least [aa3] by
Moody's, [AA-] by S&P, and [AA+] by Fitch, and the UBS Entities shall have
delivered to the Representative a letter dated on, or prior to, the Closing
Time, from each such rating agency, or other evidence satisfactory to the
Representative, confirming that the Trust Preferred Securities and the Company
Preferred Securities have such ratings. Since the date of this Agreement, there
shall not have occurred a downgrading in the rating assigned to the securities
of any of the UBS Entities by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of Rule
436(g)(2) under the 1933 Act, and no such organization shall have publicly
announced that it has under surveillance or review, that does not indicate an
improvement, its rating of any securities of any of the UBS Entities.
(m) Approval of Listing. At the Closing Time, the Trust Preferred
Securities shall have been approved for listing on the [insert applicable stock
exchanges], subject only to official notice of issuance, and approved for
settlement through DTC, Euroclear and Clearstream.
(n) Additional Documents. At the Closing Time, counsel for the
Underwriters shall have been furnished with such documents as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the UBS
Entities in connection with the issuance and sale of the Securities as herein
contemplated shall be reasonably satisfactory in form and substance to the
Representative and counsel for the Underwriters.
(o) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled in all material respects when and as required to
be fulfilled, this Agreement may be terminated by the Representative by notice
to the UBS Entities at any time at or prior to the Closing Time, and such
termination shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 1, 6, 7 and 8 shall survive any
such termination and remain in full force and effect.
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SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The UBS Entities agree, jointly and
severally, to indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the 1933
Act or Section 20 of the 1934 Act (each an "INDEMNIFIED PERSON"), as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus or the Prospectus (or any amendment thereto), or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of
the Guarantor; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and disbursements of
counsel chosen by the Representative), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that the indemnity set forth in this Section 6(a) shall not
apply to any loss, liability, claim, damage or expense to the extent arising out
of any untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with written information furnished to the UBS
Entities by any Underwriter directly or through the Representative expressly for
use in the Registration Statement (or any amendment thereto), or any preliminary
prospectus or the Prospectus (or any amendment thereto).
(b) Indemnification of the UBS Entities, Directors and Officers. Each
Underwriter, severally in proportion to its respective purchase obligation and
not jointly, agrees to indemnify and hold harmless the UBS Entities, their
respective directors or Supervisory or Managing Board members, the Trustee or
the equivalent thereof, each of
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the officers of the UBS Entities who signed the Registration Statement, and each
person, if any, who controls any of the UBS Entities within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act, against any and all
loss, liability, claim, damage and expense described in the indemnity contained
in subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), or any preliminary prospectus
or the Prospectus (or any amendment thereto) in reliance upon and in conformity
with written information furnished to the UBS Entities by such Underwriter
through the Representative expressly for use in the Registration Statement (or
any amendment thereto) or such preliminary prospectus or the Prospectus (or any
amendment thereto) and, provided, further, that the UBS Entities shall not be
liable to any Indemnified Person under this Section 6(a) with respect to the
Registration Statement (or any amendment thereto) or any preliminary prospectus
or the Prospectus (or any amendment thereto) to the extent that any such loss,
claim, damage or liability of such Indemnified Person results from the fact that
such Indemnified Person or the Underwriter it controls sold Trust Preferred
Securities to a person as to whom it shall be established that there was not
sent or given, at or prior to the written confirmation of such sale, a copy of
the Prospectus or the Prospectus as then amended in any case where such delivery
is required by the 1933 Act if the UBS Entities have previously furnished copies
thereof in sufficient quantity to such Indemnified Person or the Underwriter it
controls and the loss, claim, damage or liability of such Indemnified Person
results from an untrue statement or omission of a material fact contained in a
preliminary prospectus which was identified in writing prior to the date hereof
to such Indemnified Person or the Underwriter it controls and corrected in the
Prospectus (as then amended).
(c) Actions Against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Representative, and,
in the case of parties indemnified pursuant to Section 6(b) above, counsel to
the indemnified parties shall be selected by the UBS Entities, provided that if
it so elects within a reasonable time after receipt of such notice, an
indemnifying party, jointly with any other indemnifying party receiving such
notice, may assume the defense of such action with counsel chosen by it and
approved by the indemnified parties defendant in such action (which approval
shall not be unreasonably withheld), unless such indemnified parties reasonably
object to such assumption on the ground that there may be legal defenses
available to them which are different from or in addition to those available to
such indemnifying party. If an indemnifying party assumes the defense of such
action, the indemnifying party shall not be liable for any fees and expenses of
counsel for the indemnified parties incurred thereafter in connection with such
action. An indemnifying party may participate at its own expense in the defense
of any such action; provided,
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however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party. In
no event shall the indemnifying party be liable for fees and expenses of more
than one counsel (in addition to any one firm of local counsel) separate from
their own counsel for all indemnified parties in connection with any one action
or separate but similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances. No indemnifying party shall,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could be sought under this Section 6 or Section
7 hereof (whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and does not include a
statement as to or an admission of fault, culpability or a failure to act by or
on behalf of any indemnified party.
(d) Settlement Without Consent If Failure to Reimburse. If at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for reasonable fees and expenses of counsel, such indemnifying
party agrees that it shall be liable for any settlement of the nature
contemplated by Section 6(a)(ii) effected without its written consent if (i)
such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
SECTION 7. Contribution.
In order to provide for just and equitable contribution in circumstances
under which the indemnification provided for in Section 6 hereof is for any
reason held to be unenforceable by an indemnified party in respect of any
losses, liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the UBS Entities on the one hand and the Underwriters on
the other hand from the offering of the Securities pursuant to this Agreement or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the UBS
Entities on the one hand and of the Underwriters on the other hand in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
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The relative benefits received by the UBS Entities on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses but after deducting the
total underwriting commission received by the Underwriters) received by the UBS
Entities and the total underwriting commission received by the Underwriters, in
each case as set forth on the cover of the Prospectus, bear to the aggregate
initial public offering price of the Securities as set forth on such cover.
The relative fault of the UBS Entities on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the UBS Entities or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The UBS Entities and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 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 Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Trust Preferred 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 any 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 ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act shall have the same rights to contribution as such Underwriter, and
each director or Supervisory or Managing Board member or the equivalent of the
UBS Entities, the Trustee, each officer of the UBS Entities who signed the
Registration Statement, and
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each person, if any, who controls any of the UBS Entities within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the UBS Entities. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the number of Trust Preferred Securities set forth opposite their respective
names in Schedule A hereto and not joint.
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the UBS Entities or any of their subsidiaries
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the UBS Entities, and shall survive
delivery of the Trust Preferred Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representative may terminate this
Agreement, by notice to the Guarantor, at any time at or prior to the Closing
Time if there has been, since the time of execution of this Agreement or since
the respective dates as of which information is given in the Prospectus, any
material adverse change in the condition, financial or otherwise, or in the
earnings or business affairs or business prospects of the UBS Entities and their
subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, or (i) if there has occurred any material adverse
change in the international financial markets or the financial markets in the
United States or Switzerland, or any outbreak of hostilities or escalation
thereof affecting the United States or Switzerland or other calamity or crisis,
or any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which is such as to make it, in the judgment of the Representative
(after discussion with the Guarantor to the extent practicable), impracticable
to market the Trust Preferred Securities or to enforce contracts for the sale of
the Trust Preferred Securities, or (ii) if trading in any securities of the UBS
Entities has been suspended or materially limited by the Commission, the New
York Stock Exchange or the [insert applicable stock exchanges], or (iii) if
trading generally on the American Stock Exchange or the New York Stock Exchange
or the [insert applicable stock exchanges] or in the Nasdaq National Market has
been suspended or limited, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required, by any such exchanges or
by such system or by order of the Commission, the National Association of
Securities Dealers, Inc. or any other governmental authority, or (iv) if trading
in any securities of the Guarantor has been suspended or limited on any stock
exchange in Switzerland, or minimum or maximum prices for trading have been
fixed, or maximum ranges for prices have been required by any such stock
exchange or any competent governmental authority in or of Switzerland, or (v) if
a banking moratorium has been declared by either Federal or New York, or Swiss
authorities; or (vi) if there has occurred a change or an official announcement
by a competent authority of a forthcoming change in Swiss taxation materially
adversely affecting the Guarantor or
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the Guarantee or the transfer thereof or the imposition of exchange controls by
the United States or Switzerland.
(b) Liabilities. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10. Default by One or More of the Underwriters.
If one or more of the Underwriters shall fail at the Closing Time to
purchase the Trust Preferred Securities which it or they are obligated to
purchase under this Agreement (the "DEFAULTED SECURITIES"), the Representative
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, the
Representative shall not have completed such arrangements within such 24-hour
period, then:
(i) if the number of Defaulted Securities does not exceed 10% of
the aggregate number of the Trust Preferred Securities to be purchased
hereunder, each of the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear
to the underwriting obligations of all non-defaulting Underwriters, or
(ii) if the number of Defaulted Securities exceeds 10% of the
aggregate number of the Trust Preferred Securities to be purchased
hereunder, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a termination of
this Agreement, either the Representative or the Guarantor shall have the right
to postpone the Closing Time for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "UNDERWRITER"
includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Notices.
All notices, requests, statements and other communications hereunder shall
be in writing and shall be delivered or sent by mail, messenger or any standard
form of telecommunication. Notices to the Underwriters shall be directed to the
Representative
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c/o UBS Warburg LLC, Attention: Debt Syndicate Manager, Facsimile No. [(203)
719-0495]; and notices to the Guarantor shall be directed to UBS AG, Attention:
General Counsel, Facsimile No. [(▇▇▇) ▇▇▇-▇▇▇▇]. Any such notice, request,
statement or communication shall be effective upon receipt thereof.
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriters and the UBS Entities and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the UBS Entities and their respective successors and the
controlling persons and officers and directors and Supervisory and Managing
Board members or the equivalent referred to in Sections 6 and 7, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the Underwriters
and the UBS Entities and their respective successors, and said controlling
persons and officers and directors and Supervisory and Managing Board members or
the equivalent, and for the benefit of no other person, firm or corporation. No
purchaser of Trust Preferred Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 13. Governing Law, Submission for Jurisdiction.
(a) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS OTHERWISE SET FORTH
HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
(b) Submission to Jurisdiction. Each of the parties hereto irrevocably
(i) agrees that any legal suit, action or proceeding against the UBS Entities
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 Federal court located in the State of New York, (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 non-exclusive jurisdiction of such courts in any such suit,
action or proceeding. The Guarantor irrevocably waives any immunity to
jurisdiction to which it may otherwise be entitled or become entitled (including
sovereign immunity, immunity to pre-judgment attachment, post-judgment
attachment and execution) in any legal suit, action or proceeding against it
arising out of or based on this Agreement or the transactions contemplated
hereby which is instituted in any New York court or in any competent court in
Switzerland. The UBS Entities have appointed [▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.,] c/o
UBS AG, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇, as their 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 consent to the
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jurisdiction of any such court in respect of any such action, and waives any
other requirements of or objections to personal jurisdiction with respect
thereto. Such appointment shall be irrevocable. The UBS Entities represent and
warrant 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 such
Authorized Agent and written notice of such service to the UBS Entities shall be
deemed, in every respect, effective service of process upon the UBS Entities.
SECTION 14. Judgment Currency. 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 Guarantor will
indemnify each Underwriter against any loss incurred by such Underwriter as a
result of any variation as between (i) the rate of exchange at which the United
States dollar amount is converted into the judgment currency for the purpose of
such judgment or order and (ii) the rate of exchange at which an Underwriter is
able to purchase United States dollars with the amount of the judgment currency
actually received by such Underwriter. The foregoing indemnity shall constitute
a separate and independent obligation of the Guarantor 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. In the event that any such Underwriter, as a result of any variation as
noted in (i) or (ii) above, recovers an amount of United States dollars on
conversion of a sum paid in a judgment currency which amount is in excess of the
judgment or order given or made in United States dollars, such Underwriter shall
remit such excess to the Guarantor.
SECTION 15. Effect of Headings.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the UBS Entities a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriters and the UBS Entities in accordance with its
terms.
Very truly yours,
UBS AG
By:
--------------------------------------
Name:
Title:
By:
--------------------------------------
Name:
Title:
UBS PREFERRED FUNDING COMPANY LLC -
By:
--------------------------------------
Name:
Title:
UBS PREFERRED FUNDING TRUST -
By: UBS PREFERRED FUNDING COMPANY LLC -,
as Grantor
By:
--------------------------------------
Name:
Title:
Confirmed and Accepted,
as of the date first above written:
UBS WARBURG LLC
Acting on behalf of itself and as
Representative of the other Underwriters
named in Schedule A hereto.
By: UBS WARBURG LLC
By:
-----------------------------
Name:
Title:
By:
-----------------------------
Name:
Title
SCHEDULE A
Number of
Name of Underwriter Preferred Securities
------------------- --------------------
UBS Warburg LLC
[insert names of other underwriters]
-----------------
TOTAL
=================
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SCHEDULE B
1. The initial public offering price per security for the Trust
Preferred Securities, determined as provided in said Section 2, shall be $[1000]
[25].
2. The purchase price per security for the Trust Preferred Securities
to be paid by the several Underwriters shall be $[1000] [25], being an amount
equal to the initial public offering price set forth above.
3. The compensation per Trust Preferred Security to be paid by the
Trust to the several Underwriters in respect of their commitments hereunder
shall be $[ ] per Trust Preferred Security (or $[ ] in the aggregate).
SB-1
EXHIBIT A
FORM OF OPINION OF SWISS COUNSEL
1. The Guarantor has been duly incorporated and is validly existing as
a corporation under the laws of Switzerland.
2. The Guarantor has the corporate power and authority to execute and
deliver each of the UBS Documents and to perform its obligations under each of
these agreements.
3. The Guarantor has taken all necessary corporate action to authorize
the execution and delivery by the Guarantor of each of the UBS Documents and the
performance by the Guarantor of its obligations under each of these agreements.
4. The Underwriting Agreement, Guarantee, Subordinated Notes and
Administration Agreement have been duly executed and delivered by the Guarantor
and the choice of New York law as the law expressed to be governing each of
these agreements or documents will be recognized under the laws of Switzerland.
Accordingly, (i) New York law will determine the validity, binding nature and
enforceability of each of these agreements or documents, and (ii) these
agreements or documents will, according to the courts of Switzerland duly
applying New York law, constitute valid and legally binding obligations of the
parties thereto, enforceable against the parties thereto in accordance with
their terms.
5. The LLC Agreement has been duly executed and delivered by the
Guarantor and the choice of Delaware law as the law expressed to be governing
the LLC Agreement will be recognized under the laws of Switzerland. Accordingly,
(i) Delaware law will determine the validity, binding nature and enforceability
of the LLC Agreement and (ii) the LLC Agreement will, according to the courts of
Switzerland duly applying Delaware law, constitute valid and legally binding
obligations of the parties thereto, enforceable against the parties thereto in
accordance with their respective terms.
6. The execution and delivery by the Guarantor and the other parties
thereto of each of the UBS Documents and the performance by the Guarantor and
the other parties thereto of their respective obligations under each of the UBS
Documents do not and will not conflict with or result in a breach of any
provision of the laws of Switzerland or of the Articles of Association.
7. No license, authorization, permission or consent from any public
authority or governmental agency of Switzerland is required by the laws of
Switzerland for the valid execution and delivery by the Guarantor and the other
parties thereto of each of the UBS Documents or for the performance by the
Guarantor and the other parties thereto of their respective obligations under
each of the UBS Documents.
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8. In order to insure the legality, validity, enforceability or
admissibility in evidence of each of the UBS Documents, it is not necessary that
they be filed or recorded with any public office in Switzerland.
9. No exchange control regulations are currently in force in
Switzerland and no authorization, approval, consent or license of any
governmental authority or agency of or in Switzerland is required for the
payment by the Trust of any amounts pursuant to the terms of the Trust Preferred
Securities or for the payment by the Guarantor of any amount pursuant to the
terms of the Guarantee or the Subordinated Notes.
10. The Guarantor can ▇▇▇ and be sued in its own name.
11. It is not necessary that Wilmington Trust Company, acting in its
capacity as the Guarantee Trustee under the Guarantee, should be licensed,
qualified or otherwise entitled to carry on business in Switzerland (i) in order
to enable it to enforce its rights, or exercise any power, duty or obligation
conferred or imposed on it, under the Guarantee (including, without limitation,
its right to bring a claim or a proceeding on behalf of the Holders (as defined
in the Guarantee) in a court of competent jurisdiction in Switzerland to enforce
the obligations of the Guarantor thereunder) or (ii) by reason of the execution
of the Guarantee by the Guarantee Trustee or of the performance by the Guarantee
Trustee of its obligations thereunder.
12. To our knowledge, there is no pending or threatened action, suit or
proceeding before any Swiss canton or federal, or any other (whether or not in
Switzerland) court or governmental agency, authority or body involving the UBS
Entities or any of their subsidiaries of a character required to be disclosed in
the Prospectus (including any material incorporated therein), that is not
adequately disclosed as required.
A-2
EXHIBIT B
FORM OF OPINION OF ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
1. The Guarantee and the Trust Agreement have each been qualified under
the 1939 Act.
2. None of the UBS Entities is, or after giving effect to the offering
and sale of the Securities and the application of the net proceeds therefrom as
described in the Prospectus will be, required to be registered as an "investment
company" under the 1940 Act.
3. No consent, approval, authorization or order of any court or
governmental agency or body of the federal government of the United States or
the State of New York is required for the issuance and sale of the Securities by
the UBS Entities and the compliance by the UBS Entities with the provisions of
each of the Transaction Documents to which they are party have been obtained or
made except as have been obtained.
4. The statements in the Prospectus under the captions "Prospectus
Summary", "UBS Preferred Funding Trust -", "UBS Preferred Funding Company LLC
-", "Description of Trust Preferred Securities", "Description of Company
Preferred Securities", "Description of UBS AG Subordinated Guarantee" and
"Description of Subordinated Notes of UBS AG", insofar as such statements
purport to constitute a summary of the terms of any of the Transaction
Documents, constitute accurate summaries thereof in all material respects.
5. We hereby confirm, subject to the qualifications set forth herein,
the statements in the Prospectus under the caption "U.S. Tax Considerations" are
an accurate summary of the U.S. federal income tax matter described therein.
6. The Registration Statement and the Prospectus (including all
material incorporated by reference therein but other than the reports of experts
pertaining to the financial statements and the financial statements and other
financial and statistical information contained therein, as to which we express
no opinion), comply as to form in all material respects with the applicable
requirements of the 1933 Act, the 1939 Act, the 1933 Act Regulations and the
1939 Act Regulations.
7. The consummation of the transactions contemplated in the Transaction
Documents and the compliance with the terms thereof do not and will not violate
any existing applicable New York or federal law, rule or regulation; provided,
however, that, for purposes of this paragraph, we express no opinion with
respect to Federal or state securities laws, other antifraud laws and fraudulent
transfer laws; provided, further, that insofar as performance by the UBS
Entities of their obligations under each of the Transaction Documents is
concerned, we express no opinion as to bankruptcy,
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insolvency, reorganization, moratorium and similar laws of general applicability
relating to or affecting creditor's rights and relating to general equitable
principles.
8. To our knowledge, there is no pending or threatened action, suit or
proceeding before any New York or U.S. federal court or governmental agency,
authority or body involving the UBS Entities or any of their subsidiaries of a
character required to be disclosed in the Prospectus that is not adequately
disclosed as required.
9. Assuming due authorization, execution and delivery by each of the
parties thereto, the Underwriting Agreement, the Trust Agreement, the
Subordinated Notes Purchase Agreement and the Administration Agreement
constitute valid and binding agreements of the Company, enforceable against the
Company in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
10. Assuming due authorization, execution and delivery by each of the
parties thereto, the Underwriting Agreement, the LLC Agreement and the Trust
Agreement constitute valid and binding agreements of the Trust, enforceable
against the Trust in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
11. Assuming due authorization, execution and delivery by each of the
parties thereto, the Guarantee constitutes a valid and legally binding
obligation of the Guarantor, enforceable against the Guarantor in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
12. No facts have come to our attention that would lead us to believe
that the Registration Statement (including all material incorporated by
reference therein but except for financial statements and schedules and other
financial data included therein, as to which we have not been asked to comment),
at the time it became effective or at the date hereof, 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 the Prospectus (including all material incorporated by reference therein
but except for financial statements and schedules and other financial data
therein, as to which we have not been asked to comment), as of the date of such
Prospectus and at the date hereof, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
B-2
EXHIBIT C
FORM OF OPINION OF DELAWARE COUNSEL TO THE UBS ENTITIES
1. The Company has been duly formed and is validly existing in good
standing as a limited liability company under the Delaware LLC Act.
2. Under the LLC Agreement and the Delaware LLC Act, the Company has
all necessary limited liability company power and authority to conduct its
business as described in the Prospectus, to execute and deliver the Underwriting
Agreement, the Trust Agreement and the Administration Agreement, and to perform
its obligations under each such agreement.
3. The Company Preferred Securities issued to the Trust have been duly
authorized and validly issued and, subject to the qualifications set forth in
the following paragraph, are fully paid and nonassessable limited liability
company interests in the Company.
4. The Trust, as a member of the Company, shall not be obligated
personally for any of the debts, obligations or liabilities of the Company,
whether arising in contract, tort or otherwise solely by reason of being a
member of the Company, except as the Trust may be obligated to make payments
provided for in the LLC Agreement and to repay any funds wrongfully distributed
to it.
5. The provisions of the LLC Agreement, including the terms of the
Company Preferred Securities, are permitted under the Delaware LLC Act.
6. The LLC Agreement constitutes a legal, valid and binding agreement
of the Guarantor and the Trust, and is enforceable against the Guarantor and the
Trust in accordance with its terms.
7. Under the LLC Agreement and the Delaware LLC Act, the Company has
taken all necessary limited liability company action to authorize the execution
and delivery by the Company of each of the Transaction Documents to which it is
a party and the Company Preferred Securities, and to perform its obligations
thereunder.
8. The issue and sale by the Company of the Company Preferred
Securities to the Trust pursuant to the LLC Agreement and the Underwriting
Agreement, and the performance by the Company of its obligations under each of
the Transaction Documents to which it is a party, will not violate (i) any
Delaware statute, rule or regulation, or (ii) the Certificate of Formation of
the Company or the LLC Agreement.
9. No consent, approval, authorization, order, registration, filing or
qualification of or with any Delaware court or Delaware governmental agency or
body is required solely in connection with (i) the issuance and sale by the
Company of the Company Preferred Securities to the Trust as contemplated by the
Prospectus, or (ii) the
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execution, delivery and performance by the Company of any of the Transaction
Documents to which it is a party.
10. Under the LLC Agreement and the Delaware LLC Act, the issuance by
the Company of the Company Preferred Securities is not subject to any preemptive
purchase rights of any person.
11. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Trust Act.
12. Under the Trust Agreement and the Delaware Trust Act, the Trust has
all necessary trust power and authority to conduct its business as described in
the Prospectus, to execute and deliver each of the Transaction Documents to
which it is a party, and to perform its obligations under each such agreement.
13. The provisions of the Trust Agreement, including the terms of the
Trust Preferred Securities, are permitted under the Delaware Trust Act.
14. The Trust Agreement constitutes a legal, valid and binding agreement
of the Company and the Trustee and is enforceable against the Company and the
Trustee in accordance with its terms.
15. The Trust Preferred Securities are duly authorized by the Trust
Agreement and when authenticated, issued and delivered in accordance with the
Trust Agreement, the Trust Preferred Securities will be duly and validly issued
and, subject to the qualifications set forth in the following paragraph, fully
paid and nonassessable undivided beneficial interests in the assets of the
Trust.
16. The holders of Trust Preferred Securities, in their capacity as
such, will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the holders may be
obligated to make payments as set forth in the Trust Agreement.
17. Under the Trust Agreement and the Delaware Trust Act, the execution
and delivery by the Trust of each of the Transaction Documents to which it is a
party, and the performance by the Trust of its obligations thereunder, have been
duly authorized by all necessary trust action on the part of the Trust.
18. No consent, approval, authorization, order, registration or
qualification of or with any Delaware court or Delaware governmental agency or
Delaware body is required solely in connection with (i) the issuance and sale by
the Trust of the Trust Preferred Securities to the holders as contemplated by
the Prospectus, and (ii) the execution, delivery and performance by the Trust of
each of the Transaction Documents to which it is a party.
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19. Under the Delaware Trust Act and the Trust Agreement, the issuance
of the Trust Preferred Securities is not subject to any preemptive purchase
rights of any person.
20. The issue and sale by the Trust of the Trust Preferred Securities
pursuant to the Trust Agreement and the Underwriting Agreement, and the
performance by the Trust of its obligations under each of the Transaction
Documents to which it is a party, will not violate (i) any Delaware statute,
rule or registration, or (ii) the Certificate of Trust or the Trust Agreement.
C-3
EXHIBIT D
FORM OF OPINION OF COUNSEL TO THE TRUSTEES
1. Wilmington Trust Company is a banking corporation validly existing
under the laws of the State of Delaware.
2. The Guarantee Trustee has the requisite power and authority to
execute, deliver and perform its obligations under the Guarantee and has taken
all necessary action to authorize the execution, delivery and performance of the
Guarantee.
3. The Trustee has the requisite power and authority to execute and
deliver the Trust Agreement and the Guarantee Trustee has the requisite power
and authority to execute and deliver the LLC Agreement, and each has taken all
necessary action to authorize the execution and delivery of the Trust Agreement
and the LLC Agreement, as the case may be.
4. Each Transaction Document to which either of the Trustees is a party
has been duly executed and delivered by the appropriate one of the Trustees.
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