EXHIBIT 1.1
258,246,064 Ordinary Shares
(no par value per Share)
in the form of Shares or American Depositary Shares
TELECOM CORPORATION OF NEW ZEALAND LIMITED
INTERNATIONAL UNDERWRITING AGREEMENT
April (4), 1998
(New York Time)
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
As Representatives of the Several Underwriters
named in Schedule I hereto,
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
As Representatives of the Several Underwriters
named in Schedule II hereto
c/o Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, N.Y. 10010-3629
Dear Sirs:
1. Introductory. Ameritech New Zealand Investments, Inc., a Delaware
corporation (the "Selling Shareholder"), proposes to offer and sell ordinary
shares, no par value per share (each, a "Share"), of Telecom Corporation of New
Zealand Limited, a New Zealand limited liability company (the "Company"), and
American Depositary Shares, each representing the right to receive eight Shares
(each, an "ADS"), in a U.S. Offering, a Rest of the World Offering, a New
Zealand Offering and an Australian Offering (each term as herein defined).
The Selling Shareholder proposes, subject to the terms and conditions
stated herein, to sell to the several Underwriters named in Schedule I hereto
(the "U.S. Underwriters") and the several Underwriters named in Schedule II
hereto (the "Rest of the World Underwriters" and, together with the U.S.
Underwriters, the "International Underwriters") an aggregate of 258,246,064
Shares (the "Firm Shares"), a portion of which may be delivered in the form of
Shares and a portion of which may be deposited by the Selling Shareholder
pursuant to the
Deposit Agreement referred to below and delivered in the form of ADSs, and the
International Underwriters propose, subject to the terms and conditions stated
herein, to purchase the Firm Shares, with payment for such Firm Shares (whether
in the form of Shares or ADSs) to be made on an instalment basis as more fully
described below and in Section 5 hereof.
In addition, as set forth below, the Selling Shareholder proposes to sell
to the International Underwriters, at their election, up to an aggregate of
[39,624,606] additional Shares (the "Optional Shares"), a portion of which may
be delivered in the form of Shares and a portion of which may be deposited by
the Selling Shareholder pursuant to the Deposit Agreement and delivered in the
form of ADSs, with payment for such Optional Shares (whether in the form of
Shares or ADSs) to be made on an instalment basis as more fully described below
and in Section 5 hereof.
The Firm Shares and the Optional Shares which the U.S. Underwriters elect
to purchase pursuant to Section 3 hereof (in the form of Shares or ADSs) are
collectively called the "U.S. Firm Shares" and the "U.S. Optional Shares",
respectively, and the U.S. Firm Shares and the U.S. Optional Shares are
collectively called the "U.S. Shares". The offering of the U.S. Shares in the
United States and Canada is herein called the "U.S. Offering". The Firm Shares
and the Optional Shares which the Rest of the World Underwriters elect to
purchase pursuant to Section 3 hereof (in the form of Shares or ADSs) are
collectively called the "Rest of the World Firm Shares" and the "Rest of the
World Optional Shares", respectively, and the Rest of the World Firm Shares and
the Rest of the World Optional Shares are collectively called the "Rest of the
World Shares". The offering of the Rest of the World Shares outside the United
States, Canada, New Zealand and Australia is herein called the "Rest of the
World Offering". The U.S. Offering and the Rest of the World Offering are herein
collectively called the "International Offering".
It is understood that the Selling Shareholder is concurrently offering (i)
a total of 79,500,000 Shares (the "New Zealand Shares") by way of a public
offering in New Zealand (the "New Zealand Offering") and (ii) a total of
59,600,000 Shares (the "Australian Shares") by way of a public offering in
Australia (the "Australian Offering"). The New Zealand Offering is being made
pursuant to a registered prospectus and an investment statement in New Zealand
(together, the "New Zealand Prospectus") and the Australian Offering is being
made pursuant to a prospectus in Australia (the "Australian Prospectus"). It is
further understood that the Selling Shareholder is, concurrently with the
execution of this Agreement, entering into a New Zealand and Australian
Underwriting Deed dated the date hereof (the "New Zealand and Australian
Underwriting Agreement") with a syndicate of New Zealand underwriters named
therein (the "New Zealand Underwriters") and a syndicate of Australian
underwriters named therein (the "Australian Underwriters"). The International
Offering, the New Zealand Offering and the Australian Offering are herein
collectively called the "Global Offering". The U.S. Shares, the Rest of the
World Shares, the New Zealand Shares and the Australian Shares, whether in the
form of Shares or ADSs, are herein collectively called the "Offered Shares".
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To provide for the coordination of their activities, the International
Underwriters, the New Zealand Underwriters and the Australian Underwriters
(collectively, the "Underwriters") are simultaneously entering into an Agreement
Among U.S., Rest of the World, New Zealand and Australian Syndicates dated the
date hereof (the "Agreement Among Syndicates") which provides, among other
things, that Credit Suisse First Boston Corporation and ▇▇▇▇▇▇▇ Lynch, Pierce,
▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated are acting as the joint global coordinators (the
"Joint Global Coordinators") for the Global Offering and that sales may be made
among the syndicates of such number of Offered Shares as may be agreed with the
Joint Global Coordinators for purposes of resale to investors.
The Shares and ADSs to be sold hereunder are to be paid for in two
instalments as more fully described in Section 5 hereof. Prior to payment in
full of the Final Instalment (as defined below), beneficial interests in the
Shares will be represented by instalment receipts ("IRs"), and purchasers that
have elected to receive their Shares in the form of ADSs will receive interim
ADSs ("Interim ADSs") evidenced by interim American Depositary Receipts
("Interim ADRs"). Each IR will evidence the full beneficial ownership interest
in a Share, subject to the Trust Deed (as defined below), including the Security
Interest (as defined below) of the Selling Shareholder. Each Interim ADS will
represent the right to receive eight IRs. Upon payment in full of the Final
Instalment, the holder of an IR will become the registered holder of the Share
relating to such IR and the holder of an Interim ADS will become the registered
holder of an ADS.
Unless the context otherwise requires, all references in this Agreement to
(i) Shares shall mean IRs, (ii) ADSs shall mean Interim ADSs, (iii) ADRs shall
mean Interim ADRs, (iv) the Deposit Agreement (as defined below) shall mean the
Interim Deposit Agreement (as defined below) and (v) the Depositary (as defined
below) shall mean the Interim Depositary (as defined below), until the Final
Instalment shall have been paid with respect to the Shares and ADSs. Whenever
computations are contemplated herein that involve both numbers of Shares and
numbers of ADSs, they shall be made on a consistent basis, by first converting
the number of ADSs into the number of Shares they represent.
The IRs will be issued pursuant to the provisions of a Trust Deed dated as
of March 13, 1998 (the "Trust Deed") between the Selling Shareholder and The New
Zealand Guardian Trust Company Limited (the "Trustee"). Registered holders of
IRs (other than the custodian for the Interim Depositary) and registered holders
of Interim ADSs on the ninth business day prior to and inclusive of the Final
Instalment Due Date (as defined in Section 5 hereof) will be obligated to pay
the Final Instalment. The Interim ADSs, evidenced by Interim ADRs, will be
issued in accordance with the Interim Deposit Agreement to be dated on or about
April 9, 1998, (the "Interim Deposit Agreement") among the Company, the Selling
Shareholder, the Trustee, The Bank of New York as Interim Depositary (the
"Interim Depositary"), and the holders from time to time of Interim ADRs. The
holders of Interim ADRs, as parties to the Interim Deposit Agreement, will be
bound by the terms and conditions of the Trust Deed. Accordingly, each holder of
an Interim ADR will be deemed to have agreed to pay the Final
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Instalment of the purchase price by the Final Instalment Due Date in accordance
with the Trust Deed and the Interim Deposit Agreement. The ADSs, evidenced by
American Depositary Receipts ("ADRs"), will be issued in accordance with the
Amended and Restated Deposit Agreement dated as of April 1, 1997 (the "Deposit
Agreement"), among the Company, The Bank of New York, as Depositary (the
"Depositary"), and the holders from time to time of ADRs issued thereunder. IR
holders may transfer or sell their IRs subject to the terms of the Trust Deed,
and Interim ADS holders may transfer or sell their Interim ADSs, as evidenced by
Interim ADRs, subject to the terms of the Interim Deposit Agreement and the
Trust Deed. Upon registration of a transfer of an IR or Interim ADS, as
evidenced by an Interim ADR, in accordance with the provisions of the Trust
Deed, the transferor is discharged from any liability to pay the Final
Instalment. The Trust Deed and the Interim Deposit Agreement provide that, when
a transferee becomes a registered holder of an IR or Interim ADS, that
transferee becomes bound by all of the terms of the Trust Deed, the IR, the
Interim ADS and Interim Deposit Agreement, as applicable, including the
obligation to pay the Final Instalment. Therefore, notwithstanding anything
herein to the contrary, the Selling Shareholder acknowledges and agrees that,
upon registration of the transfer or sale of the IRs and Interim ADSs by the
Underwriters on the ninth business day prior to and inclusive of the Final
Instalment Due Date, such Underwriters shall have no liability or obligation
whatsoever with respect to the payment of the Final Instalment with respect to
the IRs and Interim ADSs so transferred or sold. If an IR holder or Interim ADR
holder defaults in payment of the Final Instalment and, in the event (i) an IR
holder or Interim ADR holder, as the case may be, is an Intermediary (as defined
in the Trust Deed) and (ii) prior to 5:00 p.m. (Wellington time) on the second
business day after the Final Instalment Due Date (as defined below), such
Intermediary effects a transfer on the IR Register or Interim ADR Register (each
as defined in the Trust Deed), as the case may be, of the IR or Interim ADR to
which a Share relates, to the beneficial owner on whose behalf such Intermediary
holds such IR or Interim ADR, then such beneficial owner shall be, and such
Intermediary shall cease to be, liable for the defaulted amount.
Four forms of offering documents will be used in connection with the
offering and sale of the Offered Shares contemplated by the foregoing: (i) the
U.S. Prospectus (as defined below) relating to the offer and sale of the U.S.
Shares in the United States and Canada as part of the U.S. Offering, (ii) an
offering circular relating to the offer and sale of the Rest of the World Shares
in the rest of the world as part of the Rest of the World Offering (in its final
form, the "Rest of the World Offering Circular"), (iii) the New Zealand
Prospectus in connection with the offering and sale of the New Zealand Shares in
the New Zealand Offering and (iv) the Australian Prospectus in connection with
the offering and sale of the Australian Shares in the Australian Offering.
Copies of a preliminary Rest of the World Offering Circular (as
supplemented or amended prior to becoming final, hereinafter called the
"Preliminary Rest of the World Offering Circular") have been delivered to you
and to you for each of the other Rest of the World Underwriters, and the
Company, at the request of the Selling Shareholder, will prepare the Rest of the
World Offering Circular. The Preliminary Rest of the World Offering Circular
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and the Preliminary U.S. Prospectus (as defined below) are collectively called
the "Preliminary Prospectus" and the Rest of the World Offering Circular and the
U.S. Prospectus are collectively called the "Prospectus". References in Section
2 of this Agreement to the "Prospectus" shall be deemed to refer to both the
Preliminary Prospectus and, once printed, the Prospectus.
2. Representations and Warranties of the Company and the Selling
Shareholder. (a) The truth and accuracy of each of the representations,
warranties and agreements being made by the Company to and with each of the
International Underwriters in subclause 2(b) below, by the Selling Shareholder
to and with each of the International Underwriters in subclause 2(c) below and
by Ameritech (as defined below) to and with each of the International
Underwriters in Section 4 of the International Guaranty (as defined below)
constitute the basis upon which the International Underwriters have agreed to
purchase the Firm Shares and, at their election, the Optional Shares and the
basis upon which the International Underwriters are entering into this
Agreement, and the International Underwriters, in entering into this Agreement,
are relying on the truth and accuracy of each such representation, warranty and
agreement.
(b) Except and to the extent prohibited (if at all) by New Zealand
law, the Company represents and warrants to each International Underwriter as of
the date hereof, as of the First Time of Delivery referred to in Section 5
hereof, and as of each Time of Delivery (if any) referred to in Section 5
hereof, and agrees with each International Underwriter that:
(i) The Company meets the requirements for use of Form F-3 under the
Securities Act of 1933, as amended (the "Act"). A registration statement on
Form F-3 (No. 333-47901) relating to the offer and sale of the U.S. Shares
in the United States and Canada in connection with the U.S. Offering,
including a form of prospectus relating to such U.S. Shares, has been filed
with the Securities and Exchange Commission (the "Commission") and either
(A) has been declared effective under the Act, and is not proposed to be
amended or (B) is proposed to be amended by amendment or post-effective
amendment. If such registration statement (the "initial registration
statement") has been declared effective, either (A) an additional
registration statement (the "additional registration statement") relating
to the U.S. Shares may have been filed with the Commission pursuant to Rule
462(b) ("Rule 462(b)") under the Act and, if so filed, has become effective
upon filing pursuant to such Rule and the U.S. Shares all have been duly
registered under the Act pursuant to the initial registration statement
and, if applicable, the additional registration statement or (B) such an
additional registration statement is proposed to be filed with the
Commission pursuant to Rule 462(b) and will become effective upon filing
pursuant to such Rule and upon such filing the U.S. Shares will all have
been duly registered under the Act pursuant to the initial registration
statement and such additional registration statement. If the Company does
not propose to amend the initial registration statement or if an additional
registration statement has been filed and the Company does not propose to
amend it, or
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if any post-effective amendment to either such registration statement has
been filed with the Commission prior to the execution and delivery of this
Agreement, the most recent amendment (if any) to each such registration
statement has been declared effective by the Commission or has become
effective upon filing pursuant to Rule 462(c) ("Rule 462(c)") under the Act
or, in the case of the additional registration statement, Rule 462(b). For
purposes of this Agreement, "Effective Time" with respect to the initial
registration statement or, if filed prior to the execution and delivery of
this Agreement, the additional registration statement means (A) if the
Company has advised the Joint Global Coordinators that it does not propose
to amend such registration statement, the date and time as of which such
registration statement, or the most recent post-effective amendment thereto
(if any) filed prior to the execution and delivery of this Agreement, was
declared effective by the Commission or has become effective upon filing
pursuant to Rule 462(c), or (B) if the Company has advised the Joint Global
Coordinators that it proposes to file an amendment or post-effective
amendment to such registration statement, the date and time as of which
such registration statement, as amended by such amendment or post-effective
amendment, as the case may be, is declared effective by the Commission. If
an additional registration statement has not been filed prior to the
execution and delivery of this Agreement but the Company has advised the
Joint Global Coordinators that it proposes to file one, "Effective Time"
with respect to such additional registration statement means the date and
time as of which such registration statement is filed and becomes effective
pursuant to Rule 462(b). "Effective Date" with respect to the initial
registration statement or the additional registration statement (if any)
means the date of the Effective Time thereof. The initial registration
statement, as amended at its Effective Time, including all materials
incorporated by reference therein, including all information contained in
the additional registration statement (if any) and deemed to be a part of
the initial registration statement as of the Effective Time of the
additional registration statement pursuant to the General Instructions of
the Form on which it is filed and including all information (if any) deemed
to be a part of the initial registration statement as of its Effective Time
pursuant to Rule 430A(b) ("Rule 430A(b)") under the Act, and including all
exhibits thereto and all of the documents incorporated by reference
therein, is hereinafter referred to as the "Initial Registration
Statement". The additional registration statement, as amended at its
Effective Time, including the contents of the initial registration
statement incorporated by reference therein and including all information
(if any) deemed to be a part of the additional registration statement as of
its Effective Time pursuant to Rule 430A(b), and including all exhibits
thereto and all of the documents incorporated by reference therein, is
hereinafter referred to as the "Additional Registration Statement". The
Initial Registration Statement and the Additional Registration Statement
(if any) are hereinafter referred to collectively as the "Registration
Statements" and individually as a "Registration Statement". Any preliminary
prospectus included in the Registration Statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission including all documents filed by the Company with the Commission
pursuant to the Exchange Act and incorporated by reference therein is
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hereinafter called a "Preliminary U.S. Prospectus". The form of
prospectus relating to the U.S. Shares as first filed with the Commission
pursuant to and in accordance with Rule 424(b) ("Rule 424(b)") under the
Act or (if no such filing is required) as included in the Registration
Statement, including all documents filed by the Company with the Commission
pursuant to the Exchange Act and incorporated by reference therein is
herein called the "U.S. Prospectus". No document has been or will be
prepared or distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the Effective
Date of the Initial Registration Statement and at the First Time of
Delivery and each Time of Delivery, the Initial Registration Statement
conformed and will conform in all material respects to the requirements of
the Act and the rules and regulations of the Commission (the "Rules and
Regulations") and did not and will not include any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, (B) on
the Effective Date of the Additional Registration Statement (if any) and at
the First Time of Delivery and each Time of Delivery, each Registration
Statement conformed, or will conform, in all material respects to the
requirements of the Act and the Rules and Regulations and did not include,
or will not include, any untrue statement of a material fact and did not
omit, or will not omit, to state any material fact required to be stated
therein or necessary to make the statements therein not misleading, and (C)
on the date of this Agreement, the Initial Registration Statement and, if
the Effective Time of the Additional Registration Statement is prior to the
execution and delivery of this Agreement, the Additional Registration
Statement each conforms, and, at the time of filing of the U.S. Prospectus
pursuant to Rule 424(b) or (if no such filing is required) at the Effective
Date of the Additional Registration Statement in which the U.S. Prospectus
is included, and at the First Time of Delivery and each Time of Delivery,
each Registration Statement and the U.S. Prospectus will conform, in all
material respects to the requirements of the Act and the Rules and
Regulations, and neither of such documents includes, or will include, any
untrue statement of a material fact or omits, or will omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading. If the Effective Time of the Initial
Registration Statement is subsequent to the execution and delivery of this
Agreement, on the Effective Date of the Initial Registration Statement and
at the First Time of Delivery and each Time of Delivery, the Initial
Registration Statement and the U.S. Prospectus will conform in all material
respects to the requirements of the Act and the Rules and Regulations,
neither of such documents will include any untrue statement of a material
fact or will omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and no
Additional Registration Statement has been or will be filed. The two
preceding sentences do not apply to any statements made in reliance upon
and in conformity with (A) written information furnished to the Company by
the Selling Shareholder expressly for use therein (it being understood and
agreed that the only
7
written information so furnished by or on behalf of the Selling Shareholder
is the "Selling Shareholder Information" identified in Annex A hereto) or
(B) written information furnished to the Company or the Selling Shareholder
by any International Underwriter through the Joint Global Coordinators
expressly for use therein, it being understood and agreed that the only
such information furnished by or on behalf of the International
Underwriters consists of the following information (the "Furnished
Information"): the last paragraph at the bottom of the cover page
concerning the terms of the offering by the International Underwriters, the
legend concerning over-allotments and stabilizing on the inside front cover
page, the third and eighth paragraphs under the caption "The Global
Offering", and the fourth, tenth, eleventh and fourteenth paragraphs under
the caption "Underwriting" in the U.S. Prospectus and the fourth, eleventh,
twelfth, thirteenth, fourteenth and eighteenth paragraphs under the caption
"Underwriting" in the Rest of the World Offering Circular.
(iii) The documents incorporated or deemed to be incorporated by
reference in the Registration Statement and the Prospectus, at the time
they were or hereafter are filed with the Commission and at the First Time
of Delivery and each Time of Delivery, complied and will comply in all
respects with the requirements of the Securities Exchange Act of 1934, as
amended (the "Exchange Act") and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read together
with the other information in the Prospectus, at the Effective Time of the
Initial Registration Statement and the Additional Registration Statement,
at the time the Prospectus was issued and at each Time of Delivery (as
defined herein), did not include, or will not include any untrue statement
of a material fact and did not omit, or will not omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(iv) A registration statement on Form F-6 (No. 333-8476) relating to
the Interim ADSs and a registration statement on Form F-6 (No. 333-8514)
relating to the IRs have been filed with the Commission (each such
registration statement, including all exhibits thereto and including the
documents incorporated by reference therein, as amended at the time such
registration statements become effective, being hereinafter called an
"Global Offering F-6 Registration Statement" and collectively the "Global
Offering F-6 Registration Statements"); a registration statement on Form
8-A (No. 001-10798) relating to the Interim ADSs has been filed with the
Commission (such registration statement, including all exhibits thereto and
including the documents incorporated by reference therein, as amended at
the time such registration statement becomes effective, being hereinafter
called the "Form 8-A Registration Statement"); the Global Offering F-6
Registration Statements and the Form 8-A Registration Statement, as of
their respective effective dates and at the First Time of Delivery and each
Time of Delivery, complied or will comply, and each amendment or supplement
thereto, when it is filed with the Commission or becomes effective, as the
case may be, will comply, in all material respects with the applicable
requirements of the Act and the Rules and
8
Regulations, and did not or will not, as of their effective dates and at
the First Time of Delivery and each Time of Delivery, contain any 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; and a registration statement on Form F-6 (No. 33-41013)
relating to the ADSs has been declared effective by the Commission (such
registration statement, including all exhibits thereto and including all
documents incorporated by reference therein, together with each Global
Offering F-6 Registration Statement, being hereinafter call an "F-6
Registration Statement" and collectively the "F-6 Registration
Statements").
(v) To the best of the Company's knowledge, after consultation with
the Commission's staff and confirmation from CT Corporation System as agent
for service of process, no stop order suspending the effectiveness of the
Registration Statement, any of the F-6 Registration Statements or the Form
8-A Registration Statement is in effect (if they have been declared
effective), and no proceedings for such purpose are pending before or
threatened by the Commission or to the knowledge of the Company, are
contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with.
(vi) The Preliminary U.S. Prospectus and the Preliminary Rest of the
World Offering Circular as of their respective dates did not, and the U.S.
Prospectus and the Rest of the World Offering Circular and any further
amendments and supplements thereto will not as of their respective dates
and at the First Time of Delivery and each Time of Delivery, contain an
untrue statement of a material fact or 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; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with (A)
written information furnished to the Company by the Selling Shareholder
expressly for use therein (it being understood that the only written
information so furnished by or on behalf of the Selling Shareholder is the
Selling Shareholder Information) or (B) written information furnished to
the Company or the Selling Shareholder by any International Underwriter
through the Joint Global Coordinators expressly for use therein (it being
understood that the only written information so furnished by or on behalf
of the International Underwriters is the Furnished Information).
(vii) The Company has been duly incorporated and is validly existing
as a corporation under the laws of New Zealand, with power and authority
(corporate and other) to own its properties and conduct its business as
described in the Prospectus and the Company is duly qualified as a foreign
corporation for the transaction of business under the laws of each other
jurisdiction, if any, in which it owns or leases properties or conducts any
business so as to require such qualification, or is subject to no material
liability or disability by reason of the failure to be so qualified in any
such jurisdiction.
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(viii) Each of the subsidiaries listed in Annex B hereto (the
"Material Subsidiaries") has been duly incorporated and is validly existing
as a corporation under the laws of its jurisdiction of incorporation. Other
than the Material Subsidiaries, the Company has no "significant
subsidiaries" within the meaning of Rule 1-02 of Regulation S-X under the
Act.
(ix) The total issued and outstanding capital of the Company is as set
forth in the Prospectus, and all of the issued and outstanding shares in
the capital of the Company have been duly and validly authorized and
issued, are fully paid and nonassessable and conform to the description
thereof contained in the Prospectus; all of the issued shares in the
capital of each Material Subsidiary of the Company have been duly and
validly authorized and issued, are fully paid and are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances,
equities or claims.
(x) The Company's outstanding Shares are approved for quotation on the
New Zealand Stock Exchange (the "NZSE") and the Australian Stock Exchange
(the "ASX"). The Company's outstanding ADSs are listed on the New York
Stock Exchange (the "NYSE"). The Interim ADSs and the ADSs to be sold in
the Global Offering have been approved for listing on the NYSE subject to
notice of issuance; the Shares to be sold in the Global Offering, including
those to be deposited in respect of ADSs, have been approved for official
quotation on the NZSE and the ASX, such approval has not been withdrawn,
and the Company is listed with the NZSE and admitted to the official list
of the ASX (as an exempt foreign entity).
(xi) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required to be obtained by the Company for the issuance of Interim ADRs by
the Interim Depositary, the deposit of any IRs with the Interim Depositary
by the Trustee pursuant to the Interim Deposit Agreement, the deposit of
any Shares with the Depositary by the Interim Depositary pursuant to the
Deposit Agreement and the consummation by the Company of the transactions
contemplated by this Agreement, the Interim Deposit Agreement and the
Deposit Agreement, except (A) the registration under the Act of the Shares,
the IRs and the Interim ADSs and (B) such consents, approvals,
authorizations, orders, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of the Offered Shares by the International Underwriters,
provided, however, that this representation shall not apply to any such
consents, approvals, authorizations, orders, registrations or
qualifications as may be required by laws of jurisdictions other than New
Zealand and the United States.
(xii) The deposit of any IRs with the Interim Depositary by the
Trustee pursuant to the Interim Deposit Agreement, the deposit of any
Shares with the Depositary by the Interim Depositary pursuant to the
Deposit Agreement, the offer,
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sale and delivery of the Offered Shares (in the form of Shares or ADSs) by
the International Underwriters and the compliance by the Company with the
applicable provisions of this Agreement, the Interim Deposit Agreement and
the Deposit Agreement, and the consummation by the Company of the
transactions herein and therein contemplated will not conflict with or
result in a breach by the Company or any Material Subsidiary or violation
by the Company or any Material Subsidiary of any of the terms or provisions
of, or constitute a default by the Company or any Material Subsidiary
under, any indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which the Company or any of the
Material Subsidiaries is party or by which the Company or any of the
Material Subsidiaries is bound or to which any property or asset, which is
material to the Company and its subsidiaries considered as a whole, is
subject, nor will any such action result in any violation of the provisions
of the Company's Constitution or any statute or any regulation made under
any statute of New Zealand or the United States (or any political
subdivision thereof) or any order, rule or regulation of any court or
governmental agency or body of New Zealand or the United States (or any
political subdivision thereof) having jurisdiction over the Company or any
of its subsidiaries or any of their properties or business assets.
(xiii) This Agreement has been duly authorized, executed and
delivered by the Company.
(xiv) The Interim Deposit Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid and legally
binding agreement of the Company, enforceable in accordance with its terms,
subject as to enforcement to (A) bankruptcy, insolvency, fraudulent
transfer, reorganization and other laws of general applicability relating
to or affecting creditors' rights generally and (B) general principles of
equity; upon due issuance by the Interim Depositary of Interim ADRs
evidencing Interim ADSs against the deposit of IRs in respect thereof in
accordance with the Interim Deposit Agreement, such Interim ADRs will be
duly and validly issued under the Interim Deposit Agreement and persons in
whose names such Interim ADRs are registered will be entitled to the rights
of registered holders of Interim ADRs specified therein and in the Interim
Deposit Agreement.
(xv) The Deposit Agreement has not been amended or terminated since
April 1, 1997 and constitutes a valid and legally binding agreement of the
Company, enforceable in accordance with its terms, subject as to
enforcement to (A) bankruptcy, insolvency, fraudulent transfer,
reorganization and other laws of general applicability relating to or
affecting creditors' rights generally and (B) general principles of equity;
upon due issuance by the Depositary of ADRs evidencing ADSs against the
deposit of Shares in respect thereof in accordance with the Deposit
Agreement, such ADRs will be duly and validly issued under the Deposit
Agreement and persons in whose names such ADRs are registered will be
entitled to the rights of registered holders of ADRs
11
specified therein and in the Deposit Agreement; and the information in the
Prospectus under the caption "Description of Interim American Depositary
Receipts and American Depositary Receipts", to the extent that it
constitutes a summary of the ADRs or the Deposit Agreement, fairly presents
the information disclosed thereunder.
(xvi) Except as set forth in the Prospectus, the Company and its
subsidiaries possess such certificates, authorities or permits issued by
the appropriate regulatory agencies or bodies necessary to conduct the
business now operated by them, and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
which, when considered individually or in the aggregate, will have a
material adverse effect on the business, financial position, shareholders'
equity or results of operations of the Company and its subsidiaries
considered as a whole (a "Material Adverse Effect").
(xvii) The Company and its subsidiaries own or have the right to use
pursuant to license, sub-license, agreement or permission all patents,
patent rights, licenses, inventions, copyrights, know-how (including trade
secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures), trademarks, service marks
and trade names material to the business of the Company and its
subsidiaries considered as a whole and currently employed by them in
connection with the business now operated by them, and neither the Company
nor any of its subsidiaries has received any notice of infringement of or
conflict with asserted rights of others with respect to any of the
foregoing which, when considered individually or in the aggregate, will
have a Material Adverse Effect.
(xviii) The Company and its subsidiaries have no knowledge of any
strike as that term is defined in section 61 of the Employment Contracts
Act 1991 which is occurring or is threatened by any of their respective
employees which would be expected to have a Material Adverse Effect.
(xix) No holders of securities of the Company do or will have rights,
pursuant to any agreement with the Company, to the registration of such
securities under the Registration Statement or the F-6 Registration
Statements.
(xx) Except as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any of its
subsidiaries is a party or of which any property or assets of the Company
or any of its subsidiaries is the subject in which there is a reasonable
possibility of an adverse decision that could, individually or in the
aggregate, have a Material Adverse Effect; and, to the best of the
Company's knowledge, no such proceedings are threatened or contemplated by
any governmental agency or body or threatened by others.
(xxi) The financial statements included in each Registration
Statement and the
12
Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and, except as otherwise
disclosed in the Prospectus, such financial statements have been prepared
in conformity with generally accepted accounting principles in New Zealand
applied on a consistent basis; the schedules included in the Registration
Statement present fairly the information required to be stated therein; and
Coopers & ▇▇▇▇▇▇▇, who have certified the financial statements and
supporting schedules included in the Registration Statement, are
independent public accountants as required by the Act and the Rules and
Regulations thereunder.
(xxii) Neither the Company nor any Material Subsidiary has sustained
since the date of the latest audited financial statements included in the
Prospectus any material loss or interference with its business from
earthquake, fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or governmental
action, order or decree otherwise than as set forth or contemplated in the
Prospectus; and, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been
any change in the share capital of the Company or any Material Subsidiary,
material decrease in the Company's consolidated working capital or material
increase in the Company's consolidated short-term debt or consolidated
long-term debt or any material adverse change or any development which the
Company has reasonable cause to believe will involve a prospective material
adverse change in or materially adversely affect the business, financial
position, shareholders' equity or results of operations of the Company and
its subsidiaries considered as a whole, otherwise than as set forth or
contemplated in the Prospectus.
(xxiii) The Company is not, and after giving effect to the offering
and sale of the Offered Shares will not be, an "investment company" as
defined in the Investment Company Act of 1940.
(xxiv) Subject to the provisions of the Treaty of ▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
and the Treaty of Waitangi (State Enterprises) ▇▇▇ ▇▇▇▇, the Company and
its subsidiaries have good and marketable title to all estates and
interests in land held by them and which are material to the Company and
its subsidiaries considered as a whole and for which certificates of title
have been issued in their respective names and certificates of title are
expected to be issued for all estates in fee simple in land held by them
for which certificates of title have not yet issued; in each such case such
estates and interests in land which are material to the Company and its
subsidiaries considered as a whole are held free and clear of all liens,
encumbrances and reservations, except such as do not materially affect the
value of such estates and interests and land and do not materially
interfere with the use made, or proposed to be made, of such estates and
interests in land by the Company and its subsidiaries; and any land and
buildings held under lease by the Company and its subsidiaries that are
material to the Company and its
13
subsidiaries considered as a whole are held by them under valid, subsisting
and enforceable leases with such exceptions as are not material and do not
materially interfere with the use made, and proposed to be made, of such
land and buildings by the Company and its subsidiaries; and, to the extent
that any estate or interest in land held by the Company or any of its
subsidiaries is, or may be, subject to any claim under the Treaty of
▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ or the Treaty of Waitangi (State Enterprises) ▇▇▇ ▇▇▇▇,
the Company does not believe that any order or declaration that may be made
by the Waitangi Tribunal in respect of such land will have a Material
Adverse Effect.
(xxv) The Company and its subsidiaries have good title to all
personal property owned by them that is material to the Company and its
subsidiaries considered as a whole, in each case free and clear of all
liens, encumbrances and reservations except such as are described in the
Prospectus or such as do not materially affect the value of such property
of the Company or the relevant subsidiary, and do not materially interfere
with the use made and proposed to be made of such property by the Company
and its subsidiaries.
(xxvi) Other than the entering into of this Agreement and the New
Zealand and Australian Underwriting Agreement, the Company has not taken
and will not take, directly or indirectly, any action which is designed to
cause or result in, or which has constituted, or which might be expected to
cause or result in, stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares.
(c) The Selling Shareholder represents and warrants to each
International Underwriter as of the date hereof, as of the First Time of
Delivery and as of each Time of Delivery, and agrees with each International
Underwriter that:
(i) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement: (A) on the Effective
Date of the Initial Registration Statement and at the First Time of
Delivery and each Time of Delivery, the Initial Registration Statement
conformed and will conform in all material respects to the requirements of
the Act and Rules and Regulations and did not and will not include any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, (B) on the Effective Date of the Additional Registration
Statement (if any) and at the First Time of Delivery and each Time of
Delivery, each Registration Statement conformed, or will conform, in all
material respects to the requirements of the Act and the Rules and
Regulations and did not include, or will not include, any untrue statement
of a material fact and did not omit, or will not omit, to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading, and (C) on the date of this Agreement,
the Initial Registration Statement and, if the Effective Time of the
Additional Registration Statement is prior to the execution and delivery of
this
14
Agreement, the Additional Registration Statement each conforms, and at the
time of filing of the U.S. Prospectus pursuant to Rule 424(b) or (if no
such filing is required) at the Effective Date of the Additional
Registration Statement in which the U.S. Prospectus is included, and at the
First Time of Delivery and each Time of Delivery, each Registration
Statement and the U.S. Prospectus will conform, in all material respects to
the requirements of the Act and the Rules and Regulations, and neither of
such documents includes, or will include, any untrue statement of a
material fact or omits, or will omit, to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading. If the Effective Time of the Initial Registration Statement is
subsequent to the execution and delivery of this Agreement: on the
Effective Date of the Initial Registration Statement and at the First Time
of Delivery and each Time of Delivery, the Initial Registration Statement
and the U.S. Prospectus will conform in all material respects to the
requirements of the Act and the Rules and Regulations, neither of such
documents will include any untrue statement of a material fact or will omit
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading. The two preceding sentences do
not apply to any statements in or omissions from a Registration Statement
or the Prospectus made in reliance upon and in conformity with written
information furnished to the Company or the Selling Shareholder by any
International Underwriter through the Joint Global Coordinators expressly
for use therein, it being understood and agreed that the only such written
information so furnished by or on behalf of the International Underwriters
is the Furnished Information.
(ii) The Preliminary U.S. Prospectus and the Preliminary Rest of the
World Offering Circular as of their respective dates did not, and the U.S.
Prospectus and the Rest of the World Offering Circular and any further
amendments and supplements thereto will not as of their respective dates
and at the First Time of Delivery and each Time of Delivery, contain an
untrue statement of a material fact or 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; provided,
however, that this representation and warranty shall not apply to any
statements or omissions made in reliance upon and in conformity with
written information furnished to the Company or the Selling Shareholder by
any International Underwriter through the Joint Global Coordinators
expressly for use therein (it being understood that the only written
information so furnished by or on behalf of the International Underwriters
is the Furnished Information).
(iii) The Selling Shareholder has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with power and authority (corporate and
other) to perform its obligations hereunder; and there exist no preemptive
rights created under any contract to which Ameritech or the Selling
Shareholder is a party with respect to the Offered Shares.
15
(iv) This Agreement has been duly authorized, executed and delivered
by the Selling Shareholder.
(v) The Trust Deed has been duly authorized, executed and delivered by
the Selling Shareholder and, when duly and validly authorized, executed and
delivered by the Trustee, will constitute a valid and legally binding
agreement of the Selling Shareholder enforceable in accordance with its
terms, subject as to enforcement to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general
equity principles; and the information in the Prospectus under the caption
"Description of Instalment Receipts and Trust Deed", to the extent that it
constitutes a summary of the IRs or the Trust Deed, fairly presents the
information disclosed thereunder.
(vi) The Selling Shareholder has full right, authority and power to
enter into and perform its obligations under this Agreement, the Trust Deed
and the Interim Deposit Agreement, to transfer Shares to the Trustee, to
cause the Trustee to deposit IRs with the Interim Depositary and to sell,
assign, transfer and deliver the Offered Shares (in the form of Shares or
ADSs) to the International Underwriters upon payment of the First
Instalment therefor.
(vii) The Selling Shareholder has good and valid title to the Offered
Shares, free and clear of all liens, encumbrances or claims; and with
respect to each Time of Delivery, immediately prior to such Time of
Delivery, the Selling Shareholder will have good and valid title to the
Shares to be sold by the Selling Shareholder hereunder, free and clear of
all liens, encumbrances or claims and upon delivery of the Shares (in the
form of Shares or ADSs) to be delivered to the International Underwriters
by the Selling Shareholder at such Time of Delivery pursuant to this
Agreement and upon payment of the First Instalment therefor as provided
herein (and assuming that each International Underwriter purchases Shares
(in the form of Shares or ADSs) in good faith and without notice of any
adverse claim within the meaning of the Uniform Commercial Code), full
beneficial ownership thereof, free and clear of all liens, encumbrances or
claims (subject to the Trust Deed, including the claim of the Selling
Shareholder for payment of the Final Instalment and other amounts payable
under the Trust Deed and the Security Interest in such Shares as defined in
the Trust Deed (the "Security Interest")), will have passed to the several
International Underwriters.
(viii) All consents, approvals, authorizations and orders necessary
for the execution, performance and delivery of this Agreement, the Interim
Deposit Agreement and the Trust Deed by the Selling Shareholder, the
transfer to the Trustee of any Shares by the Selling Shareholder pursuant
to the Trust Deed, the deposit of any IRs with the Interim Depositary by
the Trustee pursuant to the Deposit Agreement, the deposit of any Shares
with the Depositary by the Interim Depositary pursuant to the Deposit
Agreement, the offer, sale and delivery of the Offered Shares (in the form
of Shares or
16
ADS) by the International Underwriters and the consummation by the Selling
Shareholder of the transactions contemplated by this Agreement, the Interim
Deposit Agreement and the Trust Deed have been obtained, provided, however,
that this representation shall not apply to any such consents, approvals,
authorizations or orders as may be required by laws of jurisdictions other
than New Zealand, Australia and the United States.
(ix) The Interim Deposit Agreement has been duly authorized, executed
and delivered by the Selling Shareholder and when duly and validly
authorized, executed and delivered by the Interim Depositary, the Trustee
and the Company, will constitute a valid and legally binding agreement of
the Selling Shareholder enforceable in accordance with its terms, subject
as to enforcement to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles; upon due issuance by the Interim Depositary of Interim ADRs
evidencing Interim ADSs against the deposit of IRs in respect thereof in
accordance with the Interim Deposit Agreement, such Interim ADRs will be
duly and validly issued under the Interim Deposit Agreement and persons in
whose names such Interim ADRs are registered will be entitled to the rights
of registered holders of Interim ADRs specified therein and in the Interim
Deposit Agreement; and the information in the Prospectus under the caption
"Description of Interim American Depositary Receipts and American
Depositary Receipts", to the extent that it constitutes a summary of the
Interim ADRs or the Interim Deposit Agreement, fairly presents the
information disclosed thereunder.
(x) On or prior to each Time of Delivery, the Shares underlying any
IRs to be sold and delivered by the Selling Shareholder at such Time of
Delivery will have been transferred to the Trustee pursuant to the Trust
Deed and the IRs underlying any Interim ADRs will have been deposited with
the Interim Depositary pursuant to the Interim Deposit Agreement (as
applicable); and upon transfer of such Shares to the Trustee, all right,
title and interest in such Shares, subject to the Trust Deed, including the
claim of the Selling Shareholder for payment of the Final Instalment and
other amounts payable under the Trust Deed and the Security Interest, and
the beneficial interest of the holders from time to time of such IRs in the
Shares corresponding thereto, will be transferred to the Trustee.
(xi) Except as described in the Prospectus, no stamp or other issuance
or transfer taxes or duties, and no capital gains, income, withholding or
other taxes are payable by or on behalf of the International Underwriters
in connection with (A) the transfer by the Selling Shareholder of the
Shares to the Trustee for the respective accounts of the International
Underwriters in the manner contemplated by this Agreement, (B) the issuance
by the Trustee of IRs to the International Underwriters, (C) the deposit of
the IRs with the Interim Depositary as contemplated by the Interim Deposit
Agreement, (D) the issuance by the Interim Depositary of Interim ADRs for
17
the accounts of the International Underwriters, (E) the sale and delivery
by the International Underwriters of the IRs or Interim ADSs to the initial
purchasers thereof (other than (i) such taxes or duties arising in
connection with any International Underwriter being "resident" in New
Zealand as defined in the New Zealand Goods and Services Tax Act of 1985,
and/or (ii) in respect of International Underwriters not resident in a
jurisdiction which has an applicable double taxation treaty with New
Zealand (it being noted that New Zealand has double taxation treaties with,
among others, the United States and the United Kingdom), New Zealand income
tax on the gain realized on the sale by such International Underwriters of
the IRs or Interim ADSs to the initial purchasers thereof) and (iii) any
income, capital gains or withholding taxes imposed on any International
Underwriter by a jurisdiction in which such International Underwriter is
organized, residing or has a permanent establishment) or (F) the
consummation of any other transaction contemplated in this Agreement as
being directly connected to the sale of the Shares, the IRs or Interim ADRs
by the Selling Shareholder to the International Underwriters or by the
International Underwriters to the initial purchasers; provided, however,
that this representation shall not apply to any such taxes or duties
arising under the laws of jurisdictions other than New Zealand, Australia
and the United States or with respect to witholding tax on dividends (if
any) derived by the International Underwriters.
(xii) The execution, delivery and performance of this Agreement, the
Trust Deed and the Interim Deposit Agreement, the transfer to the Trustee
of any Shares by the Selling Shareholder pursuant to the Trust Deed, the
deposit of any IRs with the Interim Depositary by the Trustee pursuant to
the Interim Deposit Agreement, the deposit of any Shares with the
Depositary by the Interim Depositary pursuant to the Deposit Agreement, the
offer, sale and delivery of the Offered Shares (in the form of Shares or
ADSs) by the International Underwriters and the compliance by the Selling
Shareholder with the applicable provisions of this Agreement, the Trust
Deed and the Interim Deposit Agreement and the consummation of the
transactions contemplated hereby or thereby do not and will not conflict
with or result in a breach or violation of any of the terms and provisions
of, or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which Ameritech
or the Selling Shareholder is a party or by which Ameritech or the Selling
Shareholder is bound, or to which any property or assets, which is material
to Ameritech or the Selling Shareholder is subject, nor will such action
result in any violation by Ameritech or the Selling Shareholder of the
provisions of the charter or by-laws of Ameritech or the Selling
Shareholder or any statute or regulation or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over
Ameritech or the Selling Shareholder or such property or assets of
Ameritech or the Selling Shareholder.
(xiii) Upon payment of the Final Instalment and all other amounts
payable under the Trust Deed in respect of each IR, the holder thereof will
be entitled to one
18
Share, with good and valid title thereto, free and clear of all liens,
encumbrances, equities or claims.
(xiv) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between Ameritech or any of its subsidiaries
and any person that would give rise to a valid claim against Ameritech or
any of its subsidiaries or any International Underwriter for a brokerage
commission, finder's fee or other like payment in connection with the offer
and sale of the Offered Shares.
(xv) Other than the entering into of this Agreement and the New
Zealand and Australian Underwriting Agreement, the Selling Shareholder has
not taken and will not take, directly or indirectly, any action which is
designed to cause or result in, or which has constituted, or which might be
expected to cause or result in, stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the
Shares.
(xvi) The Selling Shareholder is listed on the NZSE (in relation to
the IRs) and the IRs have been approved for official quotation on the NZSE
and the ASX (and in both cases such approval for quotation has not been
withdrawn).
3. Purchase, Sale and Delivery of Offered Shares. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, (a) the Selling Shareholder agrees to
sell to each of the International Underwriters, and each of the International
Underwriters agrees, severally and not jointly, to purchase from the Selling
Shareholder, at a purchase price (the "Share Purchase Price") per Firm Share as
described below, the respective numbers of Firm Shares set forth opposite the
name of such International Underwriter in Schedules I or II hereto (it being
understood that the International Underwriters may elect to receive all or a
portion of their allotments in the form of Shares or ADSs as provided for below)
and (b) in the event and to the extent that the Joint Global Coordinators on
behalf of the International Underwriters shall exercise the election to purchase
Optional Shares as provided below, the Selling Shareholder agrees to sell to
each of the International Underwriters, and each of the International
Underwriters agrees, severally and not jointly, to purchase from the Selling
Shareholder, at the Share Purchase Price per Optional Share, that portion of the
number of Optional Shares as to which such election shall have been exercised
(to be adjusted by you so as to eliminate fractional shares) determined by
multiplying such number of Optional Shares by a fraction the numerator of which
is the maximum number of Optional Shares which such International Underwriter is
entitled to purchase as set forth opposite the name of such International
Underwriter in Schedules I or II hereto and the denominator of which is the
maximum number of the Optional Shares which all of the International
Underwriters are entitled to purchase hereunder. The Share Purchase Price per
Offered Share is equal to NZ$__ per Share less underwriting discounts equal to
NZ$__ per Share. The Share Purchase Price per Offered Share shall be payable in
instalments consisting of a first instalment of NZ$4.70 per Share (the
19
"First Instalment") less underwriting discounts equal to NZ$_____ per Share and
a final instalment of NZ$___ per Share (the "Final Instalment"), each payable as
described in Section 5 hereof.
The Selling Shareholder hereby grants to the Joint Global Coordinators on
behalf of the International Underwriters the right to purchase at their election
up to an aggregate of [39,624,606] Optional Shares, at the Share Purchase Price
per Optional Share, for the sole purpose of covering over-allotments in the sale
of the Firm Shares. Any such election to purchase Optional Shares may be
exercised by written notice from the Joint Global Coordinators to the Selling
Shareholder, given on a date within a period of 30 calendar days after the date
of this Agreement setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered (which
date of delivery shall be, other than with respect to the First Time of
Delivery, at least three business days after such notice is delivered unless the
Selling Shareholder consents otherwise). With respect to the First Time of
Delivery, such date of delivery shall be at least two business days after such
notice is delivered unless the Selling Shareholder consents otherwise. No
Optional Shares shall be sold or delivered unless the Firm Shares previously
have been, or simultaneously are, sold and delivered. Upon such election and
notice by the Joint Global Coordinators, the Selling Shareholder agrees to sell
to the International Underwriters the Optional Shares specified in such notice
and the International Underwriters agree, severally and not jointly, to purchase
such Optional Shares. The right to purchase the Optional Shares or any portion
thereof may be exercised from time to time and to the extent not previously
exercised may be surrendered and terminated at any time upon notice by the Joint
Global Coordinators to the Selling Shareholder. Payments of the First Instalment
and Final Instalment in respect of the Optional Shares, if any, shall be made in
a similar manner as the Firm Shares as described in Section 5 hereof.
4. Offering by the Underwriters. It is understood that the several
International Underwriters propose to offer the Firm Shares for sale upon the
terms and conditions set forth in the Prospectus. Each International Underwriter
hereby makes to, and agrees with, the Selling Shareholder and the Company the
representations and agreements set forth in Annex C hereto.
5. Initial Settlement. With respect to any portion of the Offered Shares
to be purchased and sold hereunder at each Time of Delivery, Credit Suisse First
Boston Corporation ("CSFBC"), on behalf of the International Underwriters, may
elect to have ADSs in respect of such Shares delivered and paid for hereunder in
lieu of, and in satisfaction of the Selling Shareholder's obligation to sell to
the several International Underwriters and the several International
Underwriters' obligation to purchase, such Shares. Notice of such election with
respect to any Time of Delivery shall be given in writing by CSFBC, on behalf of
the International Underwriters, to the Selling Shareholder prior to the
Notification Time (as hereinafter defined) with respect to such Time of
Delivery. The purchase price for each ADS so delivered in lieu of any Firm
Shares (the "ADS Purchase Price") is equal to the sum of
20
US$___ and the US$ equivalent (as determined and payable in accordance with the
Trust Deed and the Interim Deposit Agreement) of NZ$___ per ADS, less
underwriting discounts equal to US$_____ per ADS and the purchase price per ADS
for any ADSs so delivered in lieu of any Optional Shares shall be the ADS
Purchase Price less such underwriting discounts. The ADS Purchase Price shall be
payable in instalments consisting of a first instalment of US$___ per ADS (the
"First ADS Instalment") less underwriting discounts equal to US$_____ per ADS
and a final instalment of the US$ equivalent of NZ$____ per ADS (the "Final ADS
Instalment") as determined and payable in accordance with the Trust Deed and
Interim Deposit Agreement. Payment of the First Instalment for the Offered
Shares, and the First ADS Instalment in the case of any such Shares taken in the
form of ADSs, shall be made at each Time of Delivery and the Final Instalment
for such Shares shall be payable as set forth in the Trust Deed and Interim
Deposit Agreement (the "Final Instalment Due Date").
With respect to each Time of Delivery, the Shares, in the form of IRs, to
be acquired by each of the International Underwriters hereunder at such Time of
Delivery and, if an election has been made in accordance with the preceding
paragraph, one or more Interim ADRs evidencing the Interim ADSs to be acquired
by each International Underwriter at such Time of Delivery, shall be delivered
by or on behalf of the Selling Shareholder, as described in the next succeeding
paragraph, against payment by CSFBC, on behalf of the International
Underwriters, for each Share or Interim ADS as described in Section 3 or the
first paragraph of Section 5 hereof, as the case may be, multiplied by the
number of Shares or Interim ADSs, respectively, to be delivered at such Time of
Delivery.
Upon payment of the First Instalment in respect of such Shares, and of the
First ADS Instalment with respect to any Shares taken in the form of ADSs, the
Selling Shareholder will transfer legal title to the Shares to the Trustee to
hold such Shares in trust pursuant to the Trust Deed. Certificates representing
any Shares, in the form of IRs, to be delivered at each Time of Delivery by or
on behalf of the Selling Shareholder shall be delivered to the accounts to be
specified by Credit Suisse First Boston (Europe) Limited ("CSFBL"), on behalf of
the International Underwriters, at their designated nominee or nominees in New
Zealand, in such respective portions and also to such other accounts as CSFBL,
on behalf of the International Underwriters, may designate, upon notice to the
Selling Shareholder given on or prior to the Notification Time with respect to
such Time of Delivery. If an election has been made to purchase ADSs in respect
of any of the Shares, with respect to each Time of Delivery, Interim ADRs
evidencing the Interim ADSs to be acquired by an International Underwriter
pursuant to such election shall be delivered through the book entry facilities
of The Depository Trust Company ("DTC") by or on behalf of the Selling
Shareholder to CSFBC for the account of such International Underwriter. The
delivery or transfer of Shares (in the form of IRs or Interim ADSs) to be
purchased and sold hereunder at a Time of Delivery shall be made against payment
therefor and DTC and the Selling Shareholder shall have furnished or caused to
be furnished to you at such Time of Delivery certificates or other evidence
reasonably satisfactory to you of the execution in favor of the International
Underwriters of the book entry transfer, whether by delivery to the nominee in
New Zealand or to the custodian for DTC. The term
21
"Notification Time", with respect to any Time of Delivery, shall mean not later
than _____, Wellington, New Zealand time, on April __, 1998 with respect to the
first Time of Delivery and not later than _____, Wellington, New Zealand time,
on the second business day prior to the second Time of Delivery, if any.
The time and date of such delivery and payment shall be, with respect to
the Firm Shares (in the form of IRs), at or before _____, Wellington, New
Zealand time, on April __, 1998, and, with respect to the Optional Shares (in
the form of IRs), at or before _____, Wellington, New Zealand time, on the date
specified by you in the written notice given by you of the International
Underwriters' election to purchase such Optional Shares. The time and date of
such delivery and payment shall be, with respect to the Firm Shares (in the form
of ADSs), at or before _____, Wellington, New Zealand time, on April __, 1998,
and, with respect to the Optional Shares (in the form of ADSs), at or before
_____, Wellington, New Zealand time, on the date specified by you in the written
notice given by you of the International Underwriters' election to purchase such
Optional Shares (provided, however, that in each such case such delivery and
payment shall become in all other respects unconditional as of the time and date
of the corresponding delivery and payment for Firm Shares or Optional Shares (in
the form of IRs)). The written notice given by you with respect to the purchase
of Optional Shares shall specify the number of Shares (including the number
represented by Shares and ADSs, respectively). Payment for the Firm Shares and
the Optional Shares, respectively (other than for Shares represented by ADSs),
shall be made in New Zealand dollars in same day funds to the Selling
Shareholder at the account specified to CSFBL, on behalf of the International
Underwriters, in writing by the Selling Shareholder. Payment for the Firm Shares
and the Optional Shares, respectively, that are represented by ADSs shall be
made in U.S. dollars in same day funds to the Selling Shareholder at the account
specified to CSFBC, on behalf of the International Underwriters, in writing by
the Selling Shareholder. Such time and date for delivery of the Firm Shares is
herein call the "First Time of Delivery" and each time and date for delivery of
the Optional Shares, if not the First Time of Delivery, is herein called a "Time
of Delivery". Unless the context otherwise requires, references to a Time of
Delivery include the First Time of Delivery. For purposes of Rule 15c6-1 under
the Exchange Act, the First Time of Delivery (if later than the otherwise
applicable settlement date) shall be the settlement date for payment of funds
and delivery of securities for all the Firm Shares sold pursuant to the Global
Offering.
If applicable, ADR certificates evidencing ADSs to be delivered at each
Time of Delivery will be made available for checking and packaging at least 24
hours prior to each Time of Delivery at the office of the Depositary in New York
City, New York. Such ADR certificates will be available for release at each Time
of Delivery at said office of the Depositary.
IR holders may transfer or sell their IRs subject to the terms of the Trust
Deed and Interim ADS holders may transfer or sell their Interim ADSs, evidenced
by Interim ADRs, subject to the terms of the Interim Deposit Agreement and the
Trust Deed. Upon registration
22
of a transfer of an IR or Interim ADS, as evidenced by an Interim ADR, the
transferor is discharged from any liability to pay the Final Instalment or the
Final ADS Instalment, as the case may be. The Trust Deed and the Interim Deposit
Agreement provide that, when a transferee becomes a registered holder of an IR
or Interim ADS, as evidenced by an Interim ADR, that transferee becomes bound by
all of the terms of the Trust Deed, the IR, the Interim ADS and the Interim
Deposit Agreement, as applicable, including the obligation to pay the Final
Instalment or Final ADS Instalment. Therefore, notwithstanding anything herein
to the contrary, the Selling Shareholder acknowledges and agrees that, upon
registration of transfer of the IRs and Interim ADSs by the International
Underwriters, such International Underwriters shall have no liability or
obligation whatsoever with respect to the payment of the Final Instalment with
respect to the IRs and the Final ADS Instalment with respect to the Interim ADSs
so transferred.
The documents to be delivered at each Time of Delivery by or on behalf of
the parties hereto pursuant to Section 8 hereof, including the cross-receipts
for the Shares and ADSs, will be delivered at the Wellington, New Zealand
offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Sheffield Young (the "Closing Location") and, if
applicable, the ADSs will be delivered as specified above, all at such Time of
Delivery. A meeting will be held at the Closing Location at 1:00 P.M.,
Wellington, New Zealand time, on the Business Day next preceding such Time of
Delivery, at which meeting the final drafts of the documents to be delivered
pursuant to the preceding sentence will be available for review by the parties
hereto. For the purposes of this Section 5, "Business Day" shall mean each
Monday, Tuesday, Wednesday, Thursday and Friday which is a day settlements are
allowed to take place on the NYSE and which is not a day on which banking
institutions in ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇ are generally
authorized or obligated by law or executive order to close.
6. Certain Agreements of the Company and the Selling Shareholder. (a) The
Company agrees with the several International Underwriters and the Selling
Shareholder as follows:
(i) If the Effective Time of the Initial Registration Statement is
prior to the execution and delivery of this Agreement, the Company will
file the U.S. Prospectus with the Commission pursuant to and in accordance
with subparagraph (1) (or, if applicable and if consented to by the Joint
Global Coordinators, subparagraph (4)) of Rule 424(b) not later than the
earlier of (A) the second business day following the execution and delivery
of this Agreement or (B) the fifteenth business day after the Effective
Date of the Initial Registration Statement.
The Company will advise the Joint Global Coordinators promptly of any such
filing pursuant to Rule 424(b). If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement and an additional registration statement is necessary to register
a portion of the Offered Shares under the Act but the Effective Time
thereof has not occurred as of such execution and delivery, the
23
Company will file the additional registration statement or, if filed, will
file a post-effective amendment thereto with the Commission pursuant to and
in accordance with Rule 462(b) on or prior to 10:00 P.M., New York time, on
the date of this Agreement or, if earlier, on or prior to the time the U.S.
Prospectus is printed and distributed to any International Underwriter, or
will make such filing at such later date as shall have been consented to by
the Joint Global Coordinators.
(ii) The Company will advise the Joint Global Coordinators and the
Selling Shareholder promptly of any proposal to amend or supplement
(whether directly or by incorporation by reference) the initial or any
additional registration statement as filed or the related prospectus or the
Initial Registration Statement, the Additional Registration Statement (if
any) or the Prospectus or the F-6 Registration Statements and will not
effect such amendment or supplementation without the Joint Global
Coordinators' prior consent; and the Company will also advise the Joint
Global Coordinators promptly of the effectiveness of each Registration
Statement (if its Effective Time is subsequent to the execution and
delivery of this Agreement) and each F-6 Registration Statement (if their
effectiveness is subsequent to the execution and delivery of this
Agreement) and of any amendment or supplementation of the Registration
Statement or the Prospectus or the F-6 Registration Statements and of the
institution by the Commission of any stop order proceedings in respect of a
Registration Statement or the F-6 Registration Statements and will use its
best efforts to prevent the issuance of any such stop order and to obtain
as soon as possible its lifting, if issued.
(iii) The Company will comply with the Act and the Rules and
Regulations and the Exchange Act and the 1934 Act Regulations so as to
permit the completion of the distribution of the Offered Shares as
contemplated in this Agreement and in the Prospectus. If, at any time after
nine months after the time of the issue of the Prospectus, when a
prospectus relating to the Offered Shares is required to be delivered under
the Act in connection with sales by any International Underwriter or
dealer, any event occurs as a result of which it is necessary, in the
opinion of counsel for the International Underwriters or for the Company,
to amend the Registration Statement or amend or supplement the Prospectus
in order that the Prospectus would not include an untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary, in the opinion of such
counsel, at any time to amend the Registration Statement or the Prospectus
to comply with the Act and the Rules and Regulations, the Company will
promptly notify the Joint Global Coordinators of such event and will
promptly prepare and, in the case of the U.S. Prospectus, file with the
Commission, at its own expense, an amendment or supplement which will
correct such statement or omission or an amendment which will effect such
compliance. Neither the Joint Global Coordinators' consent to, nor the
International Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section 8.
24
(iv) As soon as practicable, but not later than the Availability Date
(as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12
months beginning after the Effective Date of the Initial Registration
Statement (or, if later, the Effective Date of the Additional Registration
Statement) which will satisfy the provisions of Section 11(a) of the Act.
For the purpose of the preceding sentence, "Availability Date" means the
45th day after the end of the fourth fiscal quarter following the fiscal
quarter that includes such Effective Date, except that, if such fourth
fiscal quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the 120/th/ day after the end of such fourth
fiscal quarter.
(v) The Company will furnish to the Joint Global Coordinators or the
Selling Shareholder ____ copies of the Registration Statement and the F-6
Registration Statements (each of which will be signed and will include all
exhibits), each preliminary prospectus relating to the Offered Shares, and,
so long as delivery of a prospectus relating to the Offered Shares,
pursuant to Section 6(a)(iii) of this Agreement, is required to be
delivered under the Act in connection with sales by any International
Underwriter or dealer, the U.S. Prospectus and all amendments and
supplements to such documents, in each case in such quantities as the Joint
Global Coordinators and the Selling Shareholder may request. The U.S.
Prospectus shall be so furnished on or prior to 3:00 P.M., New York time,
on the business day following the later of the execution and delivery of
this Agreement or the Effective Time of the Initial Registration Statement.
All other such documents shall be so furnished as soon as available. The
Selling Shareholder will pay the expenses of printing and distributing to
the Joint Global Coordinators all such documents.
(vi) Promptly from time to time, the Company shall take such action as
the Joint Global Coordinators may reasonably request to qualify the Offered
Shares for offering and sale under the securities laws of such jurisdiction
as the Joint Global Coordinators may reasonably request and to comply with
such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a general consent
to service of process in any jurisdiction.
(vii) During the period of three years hereafter, the Company will
furnish to the Joint Global Coordinators and, upon request, to each of the
other International Underwriters, as soon as practicable after the end of
each fiscal year, a copy of its annual report to shareholders for such
year; and the Company will furnish to the Joint Global Coordinators (i) as
soon as available, a copy of each report of the Company filed with the
Commission under the Exchange Act or mailed to shareholders, and (ii) from
time to time, such other information concerning the Company as the Joint
Global Coordinators may reasonably request.
25
(viii) The Company will furnish to its shareholders (including
holders of IRs) as soon as practicable after the end of (A) the first six
months of each fiscal year and each fiscal year a semi-annual report and an
annual report respectively, (including a balance sheet and statements of
income, shareholders' equity and cash flow of the Company and its
consolidated subsidiaries (certified, in the case of the annual report, by
independent public accountants), including a reconciliation to generally
accepted accounting principles in the United States ("U.S. GAAP") and (B)
each of the first and third quarters of each fiscal year (beginning with
the fiscal quarter ending after the effective date of the Registration
Statement), consolidated summary, financial information of the Company and
its subsidiaries, including a reconciliation to U.S. GAAP for such quarter
in reasonable detail.
(ix) Promptly after receipt thereof to inform the Joint Global
Coordinators and the Selling Shareholder of any written communications
received by the Company from the NZSE, the ASX, the NYSE, SEAQ
International, the New Zealand Securities Commission, the Australian
Securities Commission or the Commission and any written communications from
any other regulatory agency or authority which, in each case, could have an
effect other than an insignificant effect, on the offering of the Offered
Shares or the Global Offering or relating to the distribution, form,
content or use of any of the Preliminary Prospectus, the Prospectus, the
New Zealand Prospectus or the Australian Prospectus and to furnish the
Joint Global Coordinators and the Selling Shareholder with copies of any
such written communications thereof.
(x) The Company will use its best efforts to (A) maintain its listing
with the NZSE and the ASX (as an exempt foreign entity) and quotation of
the Shares on the NZSE and the ASX ; (B) maintain the listing and quotation
of the ADSs on the NYSE; (C) cause and maintain the quotation of the Shares
and IRs to be sold in the Global Offering on the NZSE and the ASX; (D)
cause and maintain the listing of the ADSs and Interim ADSs to be sold in
the Global Offering on the NYSE; and (E) cause and maintain the quotation
of the IRs and Interim ADSs on SEAQ International.
(xi) During the period commencing on the date hereof and ending on the
date 60 days after the date hereof, the Company will not (i) directly or
indirectly, offer, sell, contract to sell, pledge, sell any option or
contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase or otherwise transfer or dispose of,
directly or indirectly, or file with the Commission a registration
statement under the Act relating to, any Shares (other than the Offered
Shares) or securities convertible into or exchangeable or exercisable for
Shares, or deposit any such securities in an American depositary receipt
facility, or publicly disclose the intention to make any such offer, sale,
pledge, disposal, filing or deposit, or (ii) enter into any swap or any
other agreement or any transaction that transfers in whole, or in part,
directly or indirectly, the economic consequence of ownership of the
Shares, whether any such swap or transaction described in clause (i) and
(ii) above is to be settled by
26
delivery of Shares or such other securities in cash or otherwise, in each
case without the prior written consent of the Joint Global Coordinators,
except for (a) the grant of employee share options pursuant to the terms of
a plan in effect on the date hereof or the issuance of securities in
respect of the exercise of any such options and (b) the issuance of
additional capital securities similar to those that are currently
outstanding.
(xii) The Company will comply with the terms of each of the Interim
Deposit Agreement and the Deposit Agreement.
(xiii) The Company shall not, without the prior written consent of
the Selling Shareholder and the Joint Global Coordinators, permit the
incorporation by reference into the Registration Statement of any part or
all of any Form 6-K submitted to the Commission by the Company.
(xiv) The Selling Shareholder and Ameritech shall be entitled to rely
on the representations and warranties of the Company set out in Section
2(b) as if those representations and warranties had been made in favor of
the Selling Shareholder and Ameritech. The Company's liability to the
Selling Shareholder and Ameritech in respect of such representations and
warranties shall be limited to any amount recovered by the Company under
the Agreed Insurance Policy (as defined in the Deed of Indemnity between
the Company and the Selling Shareholder dated March 13, 1998) in respect of
that liability except to the extent that such liability results from:
(A) an act or omission of the Company or any director, officer or
employee of the Company which constitutes:
(aa) wilful misconduct, recklessness or gross negligence; or
(bb) conduct which the relevant person did not reasonably
believe to be in, or not opposed to, the best interests of the
Company or the Selling Shareholder;
(B) a statement made by the Company or any director, officer or
employee of the Company to the extent that such statement was:
(aa) knowingly false; or
(bb) made with gross negligence,
in which event there shall be no such limit on the Company's
liability to the Selling Shareholder and Ameritech under this Section
6(a)(xiv).
(b) The Selling Shareholder agrees with the several International
Underwriters and
27
the Company as follows:
(i) The Selling Shareholder will indemnify and hold harmless the
International Underwriters against any New Zealand documentary, stamp,
transaction, registration or similar tax, including any interest and
penalties, in relation to the creation, issuance and sale of the Offered
Shares and on the execution and delivery of this Agreement. All payments to
be made by the Selling Shareholder hereunder shall be made without
withholding or deduction for or on account of any present or future taxes,
duties or governmental charges whatsoever unless the Selling Shareholder is
compelled by law to deduct or withhold such taxes, duties or charges. In
that event, the Selling Shareholder shall pay such additional amounts as
may be necessary in order that the net amounts received after such
withholding or deduction shall equal the amounts that would have been
received if no withholding or deduction had been made.
(ii) If, at any time prior to the date on which the initial
distribution of the Shares in the Global Offering has been completed, or
for as long as a Prospectus is required to be delivered by law, as
determined by the Joint Global Coordinators, the Selling Shareholder has
knowledge of the occurrence of any event as a result of which the
Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, the Selling Shareholder will promptly
notify the Company and the Joint Global Coordinators thereof and the
reasons therefor.
(iii) Subject to the terms and conditions of this Agreement, the
Selling Shareholder will transfer the Offered Shares to be sold at each
Time of Delivery to the Trustee in accordance with the terms of the Trust
Deed and the Selling Shareholder will comply with the terms of the Trust
Deed.
(iv) (A) The Selling Shareholder will approve and procure the
furnishing to the International Underwriters of the relevant copies of the
Prospectus in such quantities as you may from time to time reasonably
request and (B) if the Company is required to prepare an amended or
supplemented Prospectus pursuant to Section 6(a)(iii), upon your request
will approve the furnishing without charge to each International
Underwriter and to any dealer in securities of as many copies as you may
from time to time reasonably request of the document so prepared.
(v) During the period commencing on the date hereof and ending on the
date 60 days after the date hereof, the Selling Shareholder will not (i)
directly or indirectly offer, sell, contract to sell, pledge, sell any
option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase or otherwise transfer or
dispose of, directly or indirectly, or cause the Company to file with the
Commission a registration statement under the Act relating to, any Shares
28
(other than the Offered Shares) or securities convertible into or
exchangeable or exercisable for Shares, or deposit any such securities in
an American depositary receipt facility, or publicly disclose the intention
to make any such offer, sale, pledge, disposal, filing or deposit, or (ii)
enter into any swap or any other agreement or any transaction that
transfers in whole, or in part, directly or indirectly, the economic
consequence of ownership of the Shares, whether any such swap or
transaction described in clause (i) and (ii) above is to be settled by
delivery of Shares or such other securities in cash or otherwise, in each
case without the prior written consent of the Joint Global Coordinators.
(vi) The Selling Shareholder will take all reasonable steps to
maintain (i) its listing (in relation to the IRs) on the NZSE; and (ii)
quotation of the IRs on the NZSE and the ASX.
(vii) The Company shall be entitled to rely on the representations
and warranties of the Selling Shareholder set out in Section 2(c) as if
those representations and warranties had been made in favor of the Company.
7. Payment of Expenses. The Selling Shareholder and the Company will (in
accordance with the payment arrangements agreed between them) procure the
payment of, or (where relevant) procure the reimbursement to the International
Underwriters of, the following: (i) the fees, disbursements and expenses of
accountants for the Company in connection with the Global Offering; (ii)
reasonable marketing expenses and the reasonable costs of advertisements and the
Company's and the Selling Shareholder's roadshow expenses (including any
reasonable travel expenses of the Selling Shareholder's representatives, the
Company's officers and employees and the Joint Global Coordinators' officers and
employees, and any other reasonable expenses of the Selling Shareholder, the
Company and the Joint Global Coordinators in connection with attending or
hosting meetings with prospective purchasers of the Offered Shares); (iii) the
fees, disbursements and expenses of U.S., New Zealand and all other counsel for
the Company and the Selling Shareholder; (iv) the taxes described in Section
6(b)(i) hereof; (v) any costs incurred in connection with the admission of the
IRs and Interim ADSs for trading on SEAQ International, the admission and
listing of the IRs and Shares for trading on the NZSE and the ASX, and the
admission and listing of the Interim ADSs and ADSs for trading on the NYSE and
the qualification of the Shares (in the form of Shares or ADSs) for offering and
sale under the laws of such jurisdictions as the Joint Global Coordinators
designate and under state securities laws as provided in Section 6(a)(vi)
hereof, including the reasonable fees and disbursements of counsel for the
International Underwriters in connection with such qualification; (vi) any
filing fees relating to the IRs, Shares, Interim ADSs and ADSs or the offer and
sale thereof, including but not limited to the filing fees of the Commission,
any U.S. state securities commission or Canadian provinces; (vii) the reasonable
fees and disbursements of U.S. counsel to the International Underwriters in
connection with compliance with the rules of the National Association of
Securities Dealers, Inc. of the underwriting arrangements; (viii) the costs and
expenses incurred or charged by
29
printers in connection with the processing, reproducing and printing of the
Preliminary Prospectus, the Prospectus, the New Zealand Prospectus, the
Australian Prospectus and any amendments and supplements thereto and the mailing
and delivering of copies thereof to the International Underwriters and dealers;
(ix) the costs and charges of the Interim Depositary, Depositary, custodian and
any transfer agent or registrar which relate to the establishment of the Interim
ADR facility and the ADR facility or the cost of preparing share certificates,
Interim ADRs or ADRs; (x) the costs and charges of the Trustee in connection
with the Trust Deed; and (xi) any and all other expenses incidental to the
performance of their obligations under this Agreement, the Interim Deposit
Agreement, the Deposit Agreement and the Trust Deed.
It is understood however that the foregoing in this Section 7 shall be
without prejudice to any separate arrangement between or among the Company,
Ameritech, the Selling Shareholder or any of their respective vendors, attorneys
or accountants with respect to such costs, charges and expenses.
8. Conditions of the Obligations of the International Underwriters. The
obligations of the several International Underwriters, as to the Offered Shares
at each Time of Delivery (in the form of ADSs or Shares), will be subject to the
accuracy of the representations and warranties on the part of the Company and
the Selling Shareholder herein and on the part of Ameritech in the International
Guaranty, to the accuracy of the statements of Company's officers and the
Selling Shareholder's officers made pursuant to the provisions hereof and
Ameritech's officers made pursuant to the provisions of the International
Guaranty, to the performance by the Company and the Selling Shareholder of their
respective obligations hereunder and the performance of Ameritech of its
obligations under the International Guaranty and to the following additional
conditions precedent:
(a) If the Effective Time of the Initial Registration Statement is not
prior to the execution and delivery of this Agreement, such Effective Time
shall have occurred not later than 10:00 P.M., New York time, on the date
of this Agreement or such later date as shall have been consented to by the
Joint Global Coordinators. If the Effective Time of the Additional
Registration Statement (if any) is not prior to the execution and delivery
of this Agreement, such Effective Time shall have occurred not later than
10:00 P.M., New York time, on the date of this Agreement or, if earlier,
the time the Prospectus is printed and distributed to any International
Underwriter, or shall have occurred at such later date as shall have been
consented to by the Joint Global Coordinators. If the Effective Time of the
Initial Registration Statement is prior to the execution and delivery of
this Agreement, the U.S. Prospectus shall have been filed with the
Commission in accordance with the Rules and Regulations and Section 6(a)(i)
of this Agreement. Each F-6 Registration Statement shall have been declared
effective not later than 10:00 P.M., New York time, on the date of this
Agreement or such later date as shall have been consented to by the Joint
Global Coordinators. Prior to such Time of Delivery, no stop order
suspending the effectiveness of a Registration
30
Statement or the F-6 Registration Statements shall have been issued and no
proceedings for that purpose shall have been instituted or, to the
knowledge of the Company, the Selling Shareholder or the Joint Global
Coordinators, shall be contemplated by the Commission.
(b) Subsequent to the execution and delivery of this Agreement, there
shall not have occurred: (i) any change, or any development or event
involving a prospective change, in the business, financial position,
shareholders' equity or results of operations of the Company and its
subsidiaries considered as a whole; (ii) any suspension or material
limitation of trading in securities generally on the NZSE, ASX, LSE or the
NYSE, or any setting of minimum or maximum prices for trading on any such
exchange or any suspension of trading of any securities of the Company on
any exchange or in the over-the-counter market; (iii) any banking
moratorium declared by New Zealand, U.S. Federal or New York authorities;
(iv) any outbreak or escalation of major hostilities or any other
substantial national or international calamity or emergency; (v) any change
or development involving a prospective change in national or international
political, financial, economic or financial market conditions or (vi) any
material change or an official announcement of a material change in New
Zealand, Australian or United States taxation affecting the Company, the
Shares or the consummation of the transactions contemplated in this
Agreement, provided, in the case of each matter referred to in the
preceding clauses (i) through (vi), that the effect of such matter is, in
the judgment of the Joint Global Coordinators after consultation, to the
extent practicable, with the Selling Shareholder, so material and adverse
as to make it impractical or inadvisable to proceed with completion of the
public offering or the sale of and payment for the Offered Shares.
(c) ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, as U.S. counsel for the Company and as U.S.
counsel for Ameritech and the Selling Shareholder, shall have furnished to
you their written opinion or opinions, dated such Time of Delivery,
substantially to the effect set forth in Annex D hereto.
(d) ▇▇▇▇▇▇▇ ▇▇▇▇▇ Sheffield Young, New Zealand counsel for the
Company, shall have furnished to you their written opinion or opinions,
dated such Time of Delivery, substantially to the effect set forth in Annex
E hereto.
(e) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, general counsel of the Company, shall have
furnished to you his written opinion or opinions, dated such Time of
Delivery, substantially to the effect set forth in Annex F hereto.
(f) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, McKenzie Bartleet & Co., New Zealand counsel for
the Selling Shareholder, shall have furnished to you their written opinion
or opinions, dated such Time of Delivery, substantially to the effect set
forth in Annex G hereto.
31
(g) Shearman & Sterling, U.S. counsel for the International
Underwriters; shall have furnished to you their written opinion or
opinions, dated such Time of Delivery, with respect to the validity of the
ADSs delivered at such Time of Delivery, the Registration Statement, the
Prospectus and other related matters as you may require.
(h) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, New Zealand counsel for the International
Underwriters, shall have furnished to you their written opinion or
opinions, dated such Time of Delivery, with respect to the incorporation of
the Company, the validity of the Shares delivered at such Time of Delivery
and other related matters as you may require.
(i) ▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, U.S. counsel for the Depositary, shall
have furnished to you their written opinion or opinions, dated such Time of
Delivery, substantially to the effect set forth in Annex H hereto.
(j) ▇▇▇▇ Gully Buddle ▇▇▇▇, New Zealand counsel for the Trustee, shall
have furnished to you their written opinion or opinions, dated such Time of
Delivery, substantially to the effect set forth in Annex I hereto.
(k) ▇▇▇▇▇ ▇. ▇▇▇▇▇, in-house legal counsel for Ameritech, shall have
furnished to you his written opinion or opinions dated such Time of
Delivery, substantially to the effect set forth in Annex J hereto.
(l) ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, special New Zealand tax counsel for Ameritech
and the Selling Shareholder, shall have furnished to you their written
opinion or opinions, dated such Time of Delivery substantially to the
effect set forth in Annex K hereto.
(m) Coopers & ▇▇▇▇▇▇▇ shall have furnished to you, Ameritech, the
Selling Shareholder and the Company a letter or letters, (A) on the date
hereof, dated the date of delivery thereof, in form and substance
satisfactory to you, based upon procedures described in their letter
carried out to a date not more than three days prior to the date hereof and
(B) at each Time of Delivery, dated the date of delivery thereof, in form
and substance satisfactory to you, based upon procedures described in their
letter carried out to a date not more than three days prior to each Time of
Delivery.
(n) The Interim ADSs to be sold by the Selling Shareholder at such
Time of Delivery shall have been duly listed, and subject to notice of
issuance, on the NYSE, the Company shall have been duly admitted to the
official list of the NZSE, the Shares, including those to be deposited in
respect of ADSs, shall have been approved for official quotation on the
NZSE and the ASX and the Interim ADSs and the IRs shall have been approved
for quotation and trading through SEAQ International.
32
(o) The Interim Depositary shall have furnished or caused to be
furnished to the International Underwriters a certificate satisfactory to
the Joint Global Coordinators with respect to the deposit with it of the
IRs represented by the Interim ADSs against issuance of the Interim ADRs
evidencing the Interim ADSs, the execution, issuance, countersignature and
delivery of the Interim ADRs evidencing the Interim ADSs pursuant to the
Interim Deposit Agreement and such other matters related thereto as the
Joint Global Coordinators reasonably request.
(p) The Trustee shall have furnished or caused to be furnished to the
International Underwriters a certificate satisfactory to the Joint Global
Coordinators with respect to the enforceability of the Trust Deed against
the Trustee and such other matters related thereto as the Joint Global
Coordinators reasonably request.
(q) You shall have received a certificate, dated such Time of
Delivery, of the Chief Executive Officer and a principal financial or
accounting officer of the Company in which such officers, to the best of
their knowledge after reasonable investigation, shall state that: (i) the
representations and warranties of the Company in this Agreement are true
and correct at such Time of Delivery as if given on such Time of Delivery;
(ii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior
to such Time of Delivery; (iii) no order, ruling or determination having
the effect of ceasing the trading or suspending the sale of Shares,
Instalment Receipts, Interim ADRs or ADS or any related security or any
other securities of the Company has been issued by any stock exchange,
securities authority or other regulatory authority and is continuing in
effect and no proceedings for such purpose have been instituted and are
continuing or are pending or contemplated or threatened, no stop order
suspending the effectiveness of any Registration Statement, the F-6
Registration Statements or the Form 8-A Registration Statement have been
issued and no proceedings for that purpose have been instituted or are
contemplated by the Commission; (iv) the Additional Registration Statement
(if any) satisfying the requirements of subparagraphs (1) and (3) of Rule
462(b) was filed pursuant to Rule 462(b), including payment of the
applicable filing fee in accordance with Rule 111(a) or (b) under the Act,
prior to the time the U.S. Prospectus was printed and distributed to any
International Underwriter; and (v) neither the Company nor any Material
Subsidiary has sustained since the date of the latest audited financial
statements included in the Prospectus any material loss or interference
with its business from earthquake, fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree otherwise than as set forth
or contemplated in the Prospectus, and, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there has not been any change in the capital stock of the
Company or any Material Subsidiary, material decrease in the Company's
consolidated working capital or material increase in the Company's
consolidated short-term debt or consolidated long-term debt or any material
adverse change or any development which
33
the Company has reasonable cause to believe will involve a prospective
material adverse change in or materially adversely affect the business,
financial position, shareholders' equity or results of operations of the
Company and its subsidiaries considered as a whole, otherwise than as set
forth or contemplated in the Prospectus.
(r) You shall have received a certificate, dated such Time of
Delivery, of a duly authorized executive officer of the Selling Shareholder
that shall state that (i) the representations and warranties of the Selling
Shareholder in this Agreement are true and correct at such Time of Delivery
as if given on such Time of Delivery and (ii) the Selling Shareholder has
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to such Time of Delivery.
(s) You shall have also received a certificate, dated such Time of
Delivery, of the duly appointed Secretary of the Company certifying as to:
(i) the trueness and completeness of the Constitution of the Company (as
attached to such certificate) in full force and effect from ___________,
the date of reregistration of the Company under the New Zealand Companies
▇▇▇ ▇▇▇▇; (ii) the absence of any amendment or other document (or any
action taken or contemplated by the Company, its directors or officers, or
to the best knowledge of such secretary, its shareholders, in contemplation
of any such amendment) relating to or affecting the Constitution of the
Company or any action taken by the Company, its directors or officers, or
to the best knowledge of such secretary, its shareholders, in contemplation
of the liquidation or dissolution of the Company; (iii) the absence of any
proceedings towards the merger, consolidation, sale of assets outside the
ordinary course of business, liquidation or dissolution of the Company that
have been taken or, to the best knowledge of such secretary are pending, or
any steps taken by the directors or, to the best knowledge of such
secretary, the shareholders of the Company, to authorize or institute the
foregoing, (iv) the trueness and completeness of the resolutions (as
attached to such certificate) adopted at meetings held by the Board of
Directors of the Company in connection with the offering, at which meeting
a quorum was present and acting throughout; absence of any amendments,
modifications or recisions to such resolutions which remain in full force
and effect; and such resolutions being the only resolutions necessary in
connection with the offering; (v) the Registration Statement, the F-6
Registration Statements, the Prospectus, this Agreement, the Interim
Deposit Agreement and the Deposit Agreement are in substantially the form
approved by the Board of Directors of the Company or by persons authorized
by the Board of Directors of the Company; (vi) to the best knowledge of
such secretary, all written communication between the Company, its officers
and employees, the Company's accountants, counsel or representatives (other
than the International Underwriters) on one hand and the Commission or its
staff on the other relating to the Registration Statement, the F-6
Registration Statements or the Form 8-A Registration Statement have been
provided to the Joint Global Coordinators or their counsel; (vii) each
director or officer of the Company who signed the Registration Statements,
the F-6 Registration Statements, or the Form 8-A Registration
34
Statement, this Agreement, the Interim Deposit Agreement and any other
document delivered on or prior to the date of such certificate in
connection with the transactions described in this Agreement was, at the
time of signing and delivery or filing with the Commission, duly elected or
appointed, qualified and acting as such director or officer or duly
appointed and acting as such attorney-in-fact, and was duly authorized to
sign such document, and the signatures of such persons appearing on such
documents are their genuine signatures; and (viii) other than the minutes
of any meeting held on such Time of Delivery (the substance of which were
communicated to Shearman & Sterling), the minute books made available to
Shearman & Sterling contained all minutes of the proceedings of the
Company's Board of Directors from December 1, 1995, through the date of
such certificate.
(t) Ameritech Corporation, a Delaware corporation and the owner of
100% of the capital stock of the Selling Shareholder ("Ameritech"), shall
have entered into an International Guaranty in favor of the International
Underwriters dated the date hereof (the "International Guaranty"),
substantially in the form attached as Annex L hereto, providing for, among
other things, a guaranty of and indemnity for, the representations,
warranties, covenants, expenses and indemnities of the Selling Shareholder
under this Agreement; Ameritech shall have complied with all agreements and
satisfied all conditions on its part under the International Guaranty on
the First Time of Delivery and on each subsequent Time of Delivery; and
such International Guaranty shall be in full force and effect (without any
notice of revocation or termination thereof) on the First Time of Delivery
and on each subsequent Time of Delivery.
(u) The closing of each portion of the Global Offering shall have been
conducted concurrently.
The Company and the Selling Shareholder shall furnish the Joint Global
Coordinators with such conformed copies of such opinions, certificates, letters
and documents as the Joint Global Coordinators reasonably request. The Joint
Global Coordinators may in their sole discretion waive on behalf of the
International Underwriters compliance with any conditions to the obligations of
the International Underwriters hereunder.
9. Indemnification and Contribution. (a) The Selling Shareholder will
indemnify and hold harmless each International Underwriter against any losses,
claims, damages or liabilities, joint or several, to which such International
Underwriter may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any F-6 Registration
Statement, the Prospectus, or any amendments or supplements thereto, or any
related preliminary prospectus, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein, and, in the case
35
of the Prospectus in light of the circumstances under which they were made, not
misleading, and will reimburse each International Underwriter for any legal or
other expenses reasonably incurred by such International Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred; provided, however, that the
Selling Shareholder will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company or the Selling Shareholder by any
International Underwriter through the Joint Global Coordinators expressly for
use therein, it being understood and agreed that the only information so
furnished by or on behalf of any International Underwriter is the Furnished
Information; and provided, further, that with respect to any untrue statement or
alleged untrue statement in or omission or alleged omissions from any
preliminary prospectus, the indemnity agreement contained in this subsection (a)
shall not inure to the benefit of any International Underwriter from whom the
person asserting any such losses, claims, damages or liabilities purchased the
Offered Shares concerned, to the extent that a prospectus relating to such
Offered Shares was required to be delivered by such International Underwriter
under the Act in connection with such purchase and any such loss, claim, damage
or liability of such International Underwriter results from the fact that there
was not sent or given to such person, at or prior to the written confirmation of
the sale of such Offered Shares to such person, a copy of the U.S. Prospectus
(exclusive of material incorporated by reference) if the Company had previously
furnished copies thereof to such International Underwriter.
(b) Each International Underwriter will severally and not jointly
indemnify and hold harmless the Selling Shareholder against any losses, claims,
damages or liabilities to which the Selling Shareholder may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
the Registration Statement, any F-6 Registration Statement, the Prospectus, or
any amendments or supplements thereto, or any related preliminary prospectus, or
arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in reliance upon and in conformity with written
information furnished to the Company by such International Underwriter through
the Joint Global Coordinators expressly for use therein (it being understood and
agreed that the only information furnished so furnished by or on behalf of any
International Underwriter is the Furnished Information), and will reimburse any
legal or other expenses reasonably incurred by the Selling Shareholder in
connection with investigating or defending any such loss, claim, damage,
liability or action as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the
36
indemnifying party of the commencement thereof; but the omission so to notify
the indemnifying party will not relieve it from any liability which it may have
to any indemnified party otherwise than under subsection (a) or (b) above. In
case any such action is brought against any indemnified party and it notifies
the indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action.
(d) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a) or (b)
above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Selling
Shareholder on the one hand and the International Underwriters on the other from
the offering of the Shares or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (i) above but
also the relative fault of the Selling Shareholder and the Company on the one
hand and the International Underwriters on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The
relative benefits received by the Selling Shareholder on the one hand and the
International Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering pursuant to this
Agreement (before deducting expenses but after underwriting discounts) received
by the Selling Shareholder bear to the total underwriting discounts and
commissions received by the International Underwriters. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or the
Selling Shareholder on the one hand or the International Underwriters on the
other and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of
37
this subsection (d). Notwithstanding the provisions of this subsection (d), no
International Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Shares underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such International Underwriter has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The International
Underwriters' obligations in this subsection (d) to contribute are several in
proportion to their respective underwriting obligations and not joint.
(e) The obligations of the Selling Shareholder under this Section shall
be in addition to any liability which the Selling Shareholder may otherwise have
and shall extend, upon the same terms and conditions, to each person, if any,
who controls any International Underwriter within the meaning of the Act; and
the obligations of the International Underwriters under this Section shall be in
addition to any liability which the respective International Underwriters may
otherwise have and shall extend, upon the same terms and conditions, and to each
person, if any, who controls the Company or the Selling Shareholder within the
meaning of the Act.
10. Default of Underwriters. If any International Underwriter or
International Underwriters default in their obligations to purchase the Shares
which it has agreed to purchase hereunder at a Time of Delivery and the
aggregate number of Shares that such defaulting International Underwriter or
International Underwriters agreed but failed to purchase does not exceed 10% of
the total number of Offered Shares that the Underwriters are obligated to
purchase on such Time of Delivery, the Joint Global Coordinators may make
arrangements satisfactory to the Selling Shareholder for the purchase of such
Shares by other persons, including any of the Underwriters, but if no such
arrangements are made on such Time of Delivery the non-defaulting Underwriters,
shall be obligated severally, in proportion to their respective commitments
hereunder, to purchase the Shares that such defaulting International
Underwriters agreed but failed to purchase at such Time of Delivery. If any
International Underwriter or International Underwriters so default and the
aggregate number of Shares with respect to which such default occurs exceeds 10%
of the total number of Offered Shares that the Underwriters are obligated to
purchase at such Time of Delivery and arrangements satisfactory to the Joint
Global Coordinators and the Selling Shareholder for the purchase of such Shares
by other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting International
Underwriter or the Selling Shareholder, except as provided in Section 11
(provided that if such default occurs with respect to Optional Shares after the
first Time of Delivery, this Agreement will not terminate as to the Firm Shares
or any Optional Shares purchased prior to such termination). As used in this
Agreement, the term "International Underwriter" includes any person substituted
for an International Underwriter under this Section. Nothing herein will
relieve a defaulting International Underwriter from liability for its default.
38
11. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company, the Selling Shareholder or any of their respective officers, on the one
hand, and of the several International Underwriters, on the other hand, set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation, or statement as to the results thereof,
made by or on behalf of any International Underwriter, the Company, the Selling
Shareholder or any of their respective representatives, officers or directors or
any controlling person with respect to any International Underwriter and the
Company and any controlling person with respect to the Selling Shareholder, and
will survive delivery of and payment for the Shares. If this Agreement is
terminated pursuant to Section 10 or if for any reason the purchase of the
Shares by the International Underwriters is not consummated, the Selling
Shareholder and the Company shall remain responsible for the expenses to be paid
or reimbursed by it pursuant to Section 7 and the respective obligations of the
Selling Shareholder and the International Underwriters pursuant to Section 9
shall remain in effect and if any Shares have been purchased hereunder the
representations and warranties in Section 2 and all obligations under Section 6
and Section 7 shall also remain in effect. If the purchase of the Shares by the
International Underwriters is not consummated for any reason other than solely
because of the termination of this Agreement pursuant to Section 10 or the
occurrence of any event specified in clause (ii), (iii), (iv), (v) or (vi) of
Section 8(b), the Selling Shareholder will reimburse the International
Underwriters for all out-of-pocket expenses (including fees and disbursements of
counsel) reasonably incurred by them in connection with the offering of the
Shares.
12. Notices. All communications hereunder will be in writing and, if sent
to (a) the International Underwriters, will be mailed, delivered or telegraphed
and confirmed to the Joint Global Coordinators c/o Credit Suisse First Boston
Corporation, Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention:
Investment Banking Department - Transactions Advisory Group, with a copy to
Shearman & Sterling, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, #▇▇-▇▇, ▇▇▇ ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, (b) the Company, will be mailed, delivered or
telegraphed and confirmed to it at Networks House, 68 Jervois Quay, ▇.▇. ▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, Attention: General Counsel, with a copy to
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, P.C. and (c) the Selling Shareholder, will be mailed,
delivered or telegraphed and confirmed to it at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇.▇.▇ ▇▇▇▇▇, Attention: Assistant General Counsel Transactions, with a
copy to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, P.C.; provided, however, that any notice to an
International Underwriter pursuant to Section 9 will be mailed, delivered or
telegraphed and confirmed to such International Underwriter.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and controlling
persons referred to in Section 9, and no other person will have any right or
obligation hereunder.
39
14. Representation of International Underwriters. The Joint Global
Coordinators shall act for the several International Underwriters in connection
with the transactions contemplated by this Agreement, and any action under this
Agreement taken by the Joint Global Coordinators jointly will be binding upon
all the International Underwriters.
15. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
16. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without regard to principles
of conflicts of laws.
17. Submission to Jurisdiction. (a) Each of the Company and the Selling
Shareholder hereby submits to the non-exclusive jurisdiction of the Federal and
state courts in the Borough of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby. Each of the Company and the Selling Shareholder
irrevocably appoints CT Corporation System, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its authorized agent in the Borough of Manhattan in The City
of New York upon which process may be served in any such suit or proceeding, and
agrees that service of process upon such agent, and written notice of said
service to the Company or the Selling Shareholder, as the case may be, by the
person serving the same to the address provided in Section 12, shall be deemed
in every respect effective service of process upon the Company or the Selling
Shareholder, as the case may be, in any such suit or proceeding. Each of the
Company, or the Selling Shareholder further agrees to take any and all action as
may be necessary to maintain such designation and appointment of such agent in
full force and effect for a period of seven years from the date of this
Agreement.
(b) The obligation of the Company or the Selling Shareholder, as the case
may be, in respect of any sum due to any International Underwriter shall,
notwithstanding any judgment in a currency other than United States dollars, not
be discharged until the first business day, following receipt by such
International Underwriter of any sum adjudged to be so due in such other
currency, on which (and only to the extent that) such International Underwriter
may in accordance with normal banking procedures purchase United States dollars
with such other currency; if the United States dollars so purchased are less
than the sum originally due to such International Underwriter hereunder, the
Company or the Selling Shareholder, as the case may be, agrees, as a separate
obligation and notwithstanding any such judgment, to indemnify such
International Underwriter against such loss. If the United States dollars so
purchased are greater than the sum originally due to such International
Underwriter hereunder, such International Underwriter agrees to pay to the
Company or the Selling Shareholder, as the case may be, an amount equal to the
excess of the United States dollars so purchased over the sum originally due to
such International Underwriter hereunder.
40
18. Severability. Any provision or part of this Agreement which is
invalid, unenforcable or illegal in any situation in any jurisidiction shall, as
to such situation and such jurisdiction, be ineffective only to the extent of
such invalidity, unenforceability or illegality and shall not affect the
validity, enforceability or legality of the remaining provisions hereof or the
validity, enforceability or legality of any such provision in any situation or
in any other jurisdiction. If the final judgment of a court of competent
jurisdiction declares that any term or provision hereof is invalid,
unenforceable or illegal, the parties agree that the court making such
determination of invalidity, unenforceability or illegality shall have the power
to reduce the scope of such provision to delete specific words or phrases or to
replace any invalid, unenforceable or illegal term or provision with a term or
provision that is valid, enforceable and legal and that comes closes to
expressing the intention of the invalid, unenforceable or illegal term or
provision, and this Agreement shall be valid, enforceable and legal as so
modified, subject to the rights of any party to appeal any such determination.
If the foregoing is in accordance with the Joint Global Coordinators'
understanding of our agreement, kindly sign and return to each of the Company
and the Selling Shareholder one of the counterparts hereof, whereupon it will
become a binding agreement among the Company, the Selling Shareholder and the
several International Underwriters in accordance with its terms.
41
Very truly yours,
AMERITECH NEW ZEALAND INVESTMENTS, INC.
By:
----------------------------------------------
Name:
Title:
TELECOM CORPORATION OF NEW ZEALAND LIMITED
By:
----------------------------------------------
Director
By:
----------------------------------------------
Director/Authorized Signatory
The foregoing International Underwriting Agreement is hereby confirmed
and accepted as of the date first above written.
CREDIT SUISSE FIRST BOSTON CORPORATION
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇ INCORPORATED
Acting for themselves and as representatives on behalf of
the several U.S. Underwriters.
By: CREDIT SUISSE FIRST BOSTON CORPORATION
By:
----------------------------------------------
Name:
Title:
CREDIT SUISSE FIRST BOSTON (EUROPE) LIMITED
▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
Acting for themselves and as representatives on behalf of
the several Rest of the World Underwriters.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL
By:
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Name:
Title:
42
SCHEDULE I
(U.S. Offering)
Total Number of Number of Shares
Firm Shares to be Purchased if
Underwriter to be Purchased Maximum Option
----------- --------------- ------------------
Exercised
------------------
Credit Suisse First Boston Corporation
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated...........................
SBC Warburg Dillon Read, Inc............
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Total................................... 87,400,000
========== ==========
43
SCHEDULE II
(Rest of the World Offering)
Total Number of Number of Shares
Firm Shares to be Purchased if
Underwriter to be Purchased Maximum Option
----------- --------------- ------------------
Exercised
------------------
Credit Suisse First Boston
(Europe) Limited.......................
▇▇▇▇▇▇▇ ▇▇▇▇▇ International.............
SBC Warburg Dillon Read.................
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Total................................... 170,846,064
=========== ===========
44
ANNEX A
(Selling Shareholder Information)
The "Selling Shareholder Information" is identified by reference to the specific
page and caption of the U.S. Prospectus and the Rest of the World Offering
Circular.
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Page (of the U.S. Caption Selling Shareholder
Prospectus and the Information
Rest of the World
Offering Circular)
--------------------------------------------------------------------------------
Front cover N/A Second paragraph
--------------------------------------------------------------------------------
8 Prospectus Summary -- The Global Entire paragraph
Offering -- Offering Price
--------------------------------------------------------------------------------
9 Prospectus Summary -- The Global Entire paragraph
Offering -- Selling Shareholder
--------------------------------------------------------------------------------
9 Prospectus Summary -- The Global Entire paragraph
Offering -- Instalment Payment
Arrangements
--------------------------------------------------------------------------------
9 Prospectus Summary -- The Global Entire paragraph
Offering -- Instalment Receipts
--------------------------------------------------------------------------------
10 Prospectus Summary -- The Global Entire paragraph
Offering -- Interim ADSs
--------------------------------------------------------------------------------
10 Prospectus Summary -- The Global Entire paragraph
Offering -- Use of Proceeds
--------------------------------------------------------------------------------
12 Prospectus Summary -- The Global First sentence
Offering -- Settlement of First
Instalment
--------------------------------------------------------------------------------
21 Risk Factors -- Deferred Payment Entire paragraph
Characteristics of IRs and Interim
ADSs
--------------------------------------------------------------------------------
22 The Global Offering Fourth paragraph,
except penultimate
sentence
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22 The Global Offering -- Instalment Entire paragraph
Payment Arrangements
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53 Management Entire paragraph
preceding the
list of executive
officers
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45
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Page (of the U.S. Caption Selling Shareholder
Prospectus and the Information
Rest of the World
Offering Circular)
--------------------------------------------------------------------------------
55 Principal and Selling Shareholders 1. reference in
the table of
ownership to
the Selling
Shareholders'
ownership of
437,080,670
Shares as of
[February 28,
1998] (the
"Table")
2. disclaimer by
Messrs. ▇▇▇▇▇▇
and Cadow of
beneficial
ownership in
such Shares in
note (a) to the
Table
3. except for the
first sentence
thereof, entire
fourth
paragraph
--------------------------------------------------------------------------------
62-70 Description of Instalment Receipts Entire section
and Trust Deed (and the
Corresponding
section of the
Form F-6
Registration
Statement for
Instalment
Receipts)
--------------------------------------------------------------------------------
46
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Page (of the U.S. Caption Selling Shareholder
Prospectus and the Information
Rest of the World
Offering Circular)
-----------------------------------------------------------------------------------------
71-82 Description of Interim American Entire section (and the
Depositary Receipts and American corresponding section of
Depositary Receipts the Form F-6 Registration
Statement for Interim
ADRs) to the extent that it
describes the Interim ADSs
represented by Interim
ADRs and the Interim
Deposit Agreement, but
excluding:
1. all information
pertaining to the
Depositary, the Deposit
Agreement and/or the
ADSs represented by
ADRs
2. all information
pertaining to the
Company's
Constitution or New
Zealand law
3. first paragraph under
the caption
"Limitations on
Shareholders" on page
78
4. last paragraph under the
caption "General" on
page 82
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* For purposes hereof, cross-references to other parts of the U.S. Prospectus
and the Rest of the World Offering Circular shall be considered as a
"sentence" for purposes of counting the sentences, but the Selling
Shareholder Information shall not include the information contained in the
cross-referenced portion of the U.S. Prospectus and Rest of the World
Offering Circular unless and to the extent specifically identified above.
47
ANNEX B
(Material Subsidiaries of the Company)
Telecom New Zealand Limited
Telecom Investments Limited
Telecom Wellington Investments Limited
TCNZ (UK) Investments Limited
TCNZ (United Kingdom) Securities Limited
Telecom Credit Limited
Telecom Purchasing Limited
TCNZ Finance Limited
Telecom New Zealand Finance Limited
48
ANNEX C
I. Each of the Rest of the World Underwriters represents and agrees that:
(a) (i) it has not offered or sold, and will not offer or sell, any Offered
Shares 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 purposes of their businesses or
circumstances which have not resulted and will not result in an offer to the
public within the meaning of the Public Offers of Securities Regulation 1995
(the "Regulations"), (ii) it has complied and will comply with all applicable
provisions of the Financial Services ▇▇▇ ▇▇▇▇ and the Regulations with respect
to anything done by it in relation to the Offered Shares 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 Offered Shares to a person who is of a kind
described in Article 11(3) of the Financial Services ▇▇▇ ▇▇▇▇ (Investment
Advertisement) (Exemptions) Order 1996 or is a person to whom the document may
otherwise lawfully be issued or passed on.
(b) the Offered Shares have not been registered under the Securities and
Exchange Law of Japan and are not being offered or sold and may not be offered
or sold, directly or indirectly, in Japan or to or for the account of any
resident of Japan or to any persons for reoffering or resale, directly or
indirectly, in Japan or to any resident of Japan, except (a) pursuant to an
exemption from the registration requirements of the Securities and Exchange Law
of Japan and (b) in compliance with any other applicable requirements of
Japanese law.
II. Each International Underwriter acknowledges that no representation is made
by the Company, the Selling Shareholder, the Joint Global Coordinators or any
other International Underwriter that any action has been or will be taken in any
jurisdiction other than the United States, New Zealand and Australia that would
permit a public offering of the Offered Shares, or possession or distribution of
any offering material, in any country or jurisdiction where action for that
purpose is required.
49