Exhibit 1.2
$________
UBS PREFERRED FUNDING TRUST ___
(a Delaware statutory business trust)
___ % Noncumulative Trust Preferred Securities
representing a corresponding amount of
___ % Noncumulative Company Preferred Securities of
UBS PREFERRED FUNDING COMPANY LLC ___
(a Delaware limited liability company)
guaranteed on a subordinated basis by
UBS AG
(a bank organized under the laws of Switzerland)
[FORM OF] UNDERWRITING AGREEMENT
_______ __, 200___
[FORM OF] UNDERWRITING AGREEMENT
_______ __, 200___
UBS SECURITIES LLC
As Representative of the Underwriters
299 Park Avenue
New York, NY 10171-0026
Ladies and Gentlemen:
UBS Preferred Funding Trust ___ (the "Trust"), a statutory business trust
organized under the Statutory Trust Act (the "Delaware Trust Act") of the State
of Delaware (Chapter 38, Title 12, of the Delaware Code, 12 Del. C. Sections
3801 et seq.), UBS Preferred Funding Company LLC ___ (the "Company"), a limited
liability company organized under the Limited Liability Company Act (the
"Delaware LLC Act") of the State of Delaware (Chapter 18, Title 6, of the
Delaware Code, 6 Del. C. Sections 18-101 et seq.), and UBS AG, a bank organized
under the laws of Switzerland (the "Guarantor", and together with the Trust and
the Company, the "UBS Entities"), confirm their agreement (this "Agreement")
with UBS Securities LLC and each of the other underwriters named in Schedule A
hereto (collectively, the "Underwriters", which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), for whom
UBS Securities LLC is acting as representative (in such capacity, hereinafter
referred to as the "Representative") with respect to the sale by the Trust and
the purchase by the Underwriters, acting severally and not jointly, of the
respective amounts of ___ % Noncumulative Trust Preferred Securities
(liquidation preference $[1,000] [25] per trust preferred security) (the "Trust
Preferred Securities") representing a corresponding amount of ___ %
Noncumulative Company Preferred Securities (the "Company Preferred Securities")
set forth opposite their names in Schedule A.
The Trust Preferred Securities will be issued pursuant to an Amended and
Restated Trust Agreement (the "Trust Agreement") to be dated as of the date on
which the time of purchase referred to in Section 2(b) hereof occurs (such date,
the "Closing Date"), among the trustee named therein (the "Trustee") and the
Company, as grantor.
The proceeds from the sale of the Trust Preferred Securities will be used
by the Trust to purchase the Company Preferred Securities, representing limited
liability company interests in the Company. The Company Preferred Securities
will be issued pursuant to the Amended and Restated Limited Liability Company
Agreement of the Company to be dated as of the Closing Date (the "LLC
Agreement") among the Guarantor, as initial holder of the common securities of
the Company (the "Company Common Securities") and the Trustee on behalf of the
Trust, as initial holder of the Company Preferred Securities. The Company
Preferred Securities will be guaranteed by the Guarantor to the extent set forth
in the UBS AG Subordinated Guarantee Agreement
(the "Guarantee") to be dated as of the Closing Date among the Guarantor and
Wilmington Trust Company, as guarantee trustee (the "Guarantee Trustee", and
together with the Trustee, the "Trustees"). The Trust Preferred Securities, the
Company Preferred Securities and the Guarantee are referred to herein
collectively as the "Securities".
The Company will use the proceeds from the sale of the Company Preferred
Securities to acquire, among other things, the ___ % Subordinated Notes of the
Guarantor (the "Subordinated Notes").
The UBS Entities understand that the Underwriters propose to make a public
offering of the Securities as soon as the Representative deems advisable after
this Agreement has been executed and delivered and the Trust Agreement and the
Guarantee have been qualified under the Trust Indenture Act of 1939, as amended,
and the rules and regulations thereunder (collectively, the "Trust Indenture
Act").
The UBS Entities have prepared and filed, in accordance with the
provisions of the Securities Act of 1933, as amended, and the rules and
regulations thereunder (collectively, the "Act"), with the Securities and
Exchange Commission (the "Commission") a shelf registration statement on Form
F-3 (File No. 333-___ ) under the Act (the "registration statement"). Amendments
to such registration statement, if necessary or appropriate, have been similarly
prepared and filed with the Commission in accordance with the Act. Such
registration statement, as so amended, has become automatically effective upon
filing with the Commission under the Act.
Except where the context otherwise requires "Registration Statement", as
used herein, means the registration statement, as amended at the time of such
registration statement's effectiveness for the purposes of Section 11 of the
Act, as such section applies to the respective Underwriters (the "Effective
Time"), including (i) all documents filed as a part thereof or incorporated or
deemed to be incorporated by reference therein, (ii) any information contained
or incorporated by reference in a prospectus filed with the Commission pursuant
to Rule 424(b) under the Act, to the extent such information is deemed, pursuant
to Rule 430B or Rule 430C under the Act, to be part of the registration
statement at the Effective Time, and (iii) any registration statement filed to
register the offer and sale of Securities pursuant to Rule 462(b) under the Act
(a "Rule 462(b) Registration Statement").
Any preliminary prospectus supplement, including any basic prospectus
attached to or used with the Prospectus Supplement, as defined below ("Basic
Prospectus"), and the documents incorporated by reference therein, relating to
the Securities, in the form furnished to you by the UBS Entities for use by the
Underwriters and by dealers in connection with the offerings of the Securities,
is herein called a "Pre-Pricing Prospectus", except where the context otherwise
requires. Promptly after execution and delivery of this Agreement, the UBS
Entities will prepare and file a final prospectus supplement relating to the
Securities in accordance with the provisions of Rule 424(b) under the Act on or
before the second business day after the date hereof (or such earlier
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time as may be required under the Act). The final prospectus supplement relating
to the Securities, in the form furnished to you by the UBS Entities for use by
the Underwriters and by dealers in connection with the offering of the
Securities, is herein called the "Prospectus Supplement". The Prospectus
Supplement, together with the Basic Prospectus, is herein called the
"Prospectus". The documents listed on Schedule C attached hereto are herein
called "Permitted Free Writing Prospectuses". Any Pre-Pricing Prospectus or
Basic Prospectus, in either case, together with any combination of one or more
Permitted Free Writing Prospectuses, if any, are herein called the "Disclosure
Package". As used herein, the terms "registration statement", "Registration
Statement", "Basic Prospectus", "Pre-Pricing Prospectus", "Prospectus
Supplement", "Prospectus" and "Permitted Free Writing Prospectus" shall be
deemed to refer to and include in each case the documents, if any, incorporated
by reference, or deemed to be incorporated by reference, therein ("Incorporated
Documents"), including the documents, if any, filed as exhibits to such
Incorporated Documents. The terms "supplement", "amendment" and "amend", as used
herein with respect to the Registration Statement, the Basic Prospectus, any
Pre-Pricing Prospectus, the Prospectus Supplement, the Prospectus or any
Permitted Free Writing Prospectus shall be deemed to refer to and include all
documents deemed to be incorporated by reference in the Registration Statement,
the Basic Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the
Prospectus or any Permitted Free Writing Prospectus that are filed with the
Commission on or after the initial effective date of the Registration Statement,
or the date of the Basic Prospectus, such Pre-Pricing Prospectus, the Prospectus
Supplement, the Prospectus or such Permitted Free Writing Prospectus, as the
case may be, pursuant to the Securities Exchange Act of 1934, as amended, and
the rules and regulations thereunder (collectively, the "Exchange Act").
SECTION 1. Representations and Warranties by the UBS Entities. The UBS
Entities, jointly and severally, represent and warrant to each Underwriter as of
the date hereof and as of the time of purchase referred to in Section 2(b)
hereof, and agree with each Underwriter, as follows; provided that, (i) each of
the Company and the Trust makes no representations or warranties with respect to
the Guarantor or any of its subsidiaries other than itself and (ii) the
representations and warranties set forth in Sections 1(f), (l) and (s) are made
only by the Guarantor and not the Company or the Trust:
(a) Compliance with Registration Requirements. The Registration Statement
has heretofore become effective under the Act or, with respect to any Rule
462(b) Registration Statement, will be filed with the Commission and become
effective under the Act no later than 10:00 p.m. (New York City time) on the
date of determination of the public offering price for the Securities; no stop
order of the Commission preventing or suspending the use of any Basic
Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the
Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the
Registration Statement, has been issued, and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of any of the UBS
Entities, are contemplated by the Commission, and any request on the part of the
Commission for additional information has been complied with. No notice of
objection
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that the Commission objects to the use of the Registration Statement as an
automatic shelf registration has been received by the UBS Entities.
The Registration Statement complied when it became effective, complies as
of the date hereof and, as then amended or supplemented, at the time of purchase
and at all times during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act
or any similar rule) in connection with any sale of Securities, will comply, in
each case, in all material respects, with the requirements of the Act; the
conditions to the use of Form F-3 in connection with the offering and sale of
the Securities as contemplated hereby have been satisfied; the Registration
Statement constitutes an "automatic shelf registration statement" (as defined in
Rule 405 under the Act), and, as of the determination date applicable to the
Registration Statement (and any amendment thereof) and the offering contemplated
hereby, each of the UBS Entities is a "well-known seasoned issuer" (as defined
in Rule 405 under the Act); the Registration Statement meets, and the offering
and sale of the Securities as contemplated hereby complies with, the
requirements of Rule 415 under the Act (including, without limitation, Rule
415(a)(5)); the Registration Statement did not, as of the Effective Time,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading; each Pre-Pricing Prospectus complied, at the time it was filed with
the Commission, and complies as of the date hereof, in all material respects
with the requirements of the Act; at no time during the period that begins on
the earlier of the date of such Pre-Pricing Prospectus and the date such
Pre-Pricing Prospectus was filed with the Commission and ends at the time of
purchase did or will any Pre-Pricing Prospectus, as then amended or
supplemented, include 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, and at no time
during such period did or will any Pre-Pricing Prospectus, as then amended or
supplemented, together with any combination of one or more of the then issued
Permitted Free Writing Prospectuses, if any, include 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; each Basic Prospectus complied or will comply, at the time
it was or will be filed with the Commission, complies as of the date hereof (if
filed with the Commission on or prior to the date hereof) and, at the time of
purchase and at all times during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act
or any similar rule) in connection with any sale of Securities, will comply, in
all material respects, with the requirements of the Act; at no time during the
period that begins on the earlier of the date of such Basic Prospectus and the
date such Basic Prospectus was filed with the Commission and ends at the time of
purchase did or will such Basic Prospectus, as then amended or supplemented,
include 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, and at no time during
such period did or will any Basic Prospectus, as then amended or supplemented,
together with any combination of one or more of the then issued Permitted Free
Writing
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Prospectuses, if any, include 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; each of
the Prospectus Supplement and the Prospectus will comply, as of the date that it
is filed with the Commission, the date of the Prospectus Supplement, the time of
purchase and at all times during which a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act
or any similar rule) in connection with any sale of Securities, in all material
respects, with the requirements of the Act (in the case of the Prospectus,
including, without limitation, Section 10(a) of the Act); at no time during the
period that begins on the earlier of the date of the Prospectus Supplement and
the date the Prospectus Supplement is filed with the Commission and ends at the
later of the time of purchase and the end of the period during which a
prospectus is required by the Act to be delivered (whether physically or through
compliance with Rule 172 under the Act or any similar rule) in connection with
any sale of Securities did or will any Prospectus Supplement or the Prospectus,
as then amended or supplemented, include 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; at no time during the period that begins on the date of any
Permitted Free Writing Prospectus and ends at the time of purchase did or will
such Permitted Free Writing Prospectus include 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 the UBS Entities make no representation or
warranty with respect to any statement contained in the Registration Statement,
any Pre-Pricing Prospectus, the Prospectus or any Permitted Free Writing
Prospectus in reliance upon and in conformity with information concerning any
Underwriter and furnished in writing by or on behalf of such Underwriter through
the Representative to the UBS Entities expressly for use in the Registration
Statement, such Pre-Pricing Prospectus, the Prospectus or such Permitted Free
Writing Prospectus; each Incorporated Document, at the time such document was
filed with the Commission or at the time such document became effective, as
applicable, complied, in all material respects, with the requirements of the
Exchange Act and did not include 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.
(b) Use of Permitted Free Writing Prospectuses. Prior to the execution of
this Agreement, no UBS Entity has, directly or indirectly, offered or sold any
Securities by means of any "prospectus" (within the meaning of the Act) or used
any "prospectus" (within the meaning of the Act) in connection with the offer or
sale of the Securities, in each case other than the Pre-Pricing Prospectuses and
the Permitted Free Writing Prospectuses, if any; no UBS Entity has, directly or
indirectly, prepared, used or referred to any Permitted Free Writing Prospectus
except in compliance with Rule 163 or with Rules 164 and 433 under the Act;
assuming that such Permitted Free Writing Prospectus is so sent or given after
the Registration Statement was filed with the Commission (and after such
Permitted Free Writing Prospectus was, if required pursuant to Rule 433(d)
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under the Act, filed with the Commission), the sending or giving, by any
Underwriter, of any Permitted Free Writing Prospectus will satisfy the
provisions of Rule 164 or Rule 433 (without reliance on subsections (b), (c) and
(d) of Rule 164); the conditions set forth in one or more of subclauses (i)
through (iv), inclusive, of Rule 433(b)(1) under the Act are satisfied, and the
registration statement relating to the offering of the Securities contemplated
hereby, as initially filed with the Commission, includes a prospectus that,
other than by reason of Rule 433 or Rule 431 under the Act, satisfies the
requirements of Section 10 of the Act; neither the UBS Entities nor the
Underwriters are disqualified, by reason of subsection (f) or (g) of Rule 164
under the Act, from using, in connection with the offer and sale of the
Securities, "free writing prospectuses" (as defined in Rule 405 under the Act)
pursuant to Rules 164 and 433 under the Act; none of the UBS Entities is an
"ineligible issuer" (as defined in Rule 405 under the Act) as of the eligibility
determination date for purposes of Rules 164 and 433 under the Act with respect
to the offering of the Securities contemplated by the Registration Statement;
the parties hereto agree and understand that the content of any and all "road
shows" (as defined in Rule 433 under the Act) related to the offering of the
Securities contemplated hereby is solely the property of the UBS Entities.
(c) Independent Accountants. The independent auditors who certified the
financial statements included or incorporated by reference in the Registration
Statement, any Pre-Pricing Prospectus and the Prospectus are independent public
accountants as required by the Act and by the rules of the Public Company
Accounting Oversight Board with respect to the Guarantor and its subsidiaries.
(d) Status of the UBS Entities. Each of the Guarantor and each of its
subsidiaries that is a "significant subsidiary" as defined in Rule 405 under the
Act (each a "Significant Subsidiary") has been duly organized or incorporated
under the laws of Switzerland or its respective jurisdiction of organization or
incorporation, as the case may be, except to the extent that the failure to be
duly organized or incorporated would not have a material adverse effect in the
context of the issue of the Securities on the consolidated financial position
and consolidated results of operations of the Guarantor and its Significant
Subsidiaries, taken as a whole (a "Material Adverse Effect"). The Trust has been
duly created as a statutory trust under the Delaware Trust Act and the Company
has been duly formed as a limited liability company under the Delaware LLC Act.
Each of the Guarantor and each of the Guarantor's Significant Subsidiaries is
validly existing and, where such concept applies, is in good standing under the
laws of its respective jurisdiction of organization or incorporation, is duly
qualified to do business and in good standing in each other jurisdiction in
which qualification is necessary for the ownership of its respective properties
or for the conduct of its respective businesses, except to the extent that the
failure to be validly existing, qualified or in good standing would not have a
Material Adverse Effect. The Trust is and will, under current law, be classified
as a grantor trust and not an association taxable as a corporation for United
States federal income tax purposes.
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Each UBS Entity has the power and authority necessary to own or hold its
respective properties, to conduct the businesses in which it is engaged, as
described in the Disclosure Package and to enter into and perform its respective
obligations under the Transaction Documents (as defined below) to which it is a
party, except to the extent that the failure to do so would not have a Material
Adverse Effect. Each of the Trust and the Company is not a party to or otherwise
bound by any agreement other than the Transaction Documents (as defined below)
and agreements ancillary to consummating the transactions contemplated by the
Transaction Documents (as defined below).
(e) Authorization of Agreement. This Agreement has been duly authorized,
executed and delivered (if applicable under applicable law) by each of the UBS
Entities.
(f) Absence of Defaults and Conflicts; Absence of Further Requirements.
None of the UBS Entities or any of the Significant Subsidiaries is in violation
of its constituent documents, charter or by-laws or in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which any of the UBS Entities or such
Significant Subsidiary is a party or by which any of them may be bound, or to
which any of the property or assets of any of the UBS Entities or any such
Significant Subsidiary is subject, except a default in performance or observance
of an obligation, agreement, covenant or condition that does not have and is not
likely to have a Material Adverse Effect. The execution, delivery (if applicable
under applicable law) and performance of this Agreement, the Trust Agreement,
the LLC Agreement, the Guarantee, the Subordinated Notes and the Administration
Agreement to be dated as of the Closing Date among the Guarantor and the Company
(the "Administration Agreement" and, together with this Agreement, the LLC
Agreement, the Guarantee and the Subordinated Notes, the "UBS Documents", and,
together with the Trust Agreement, the "Transaction Documents") by the
Guarantor, the Company and the Trust, as the case may be, and the consummation
of the transactions contemplated hereby and thereby do not and will not conflict
with or result in a breach or violation of any of the terms or provisions of, or
constitute a default under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the UBS Entities or any
Significant Subsidiary under any material indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which any of the UBS
Entities or any such Significant Subsidiary is a party or by which any of them
is bound or to which any of their property or assets is subject, except for any
such conflict, breach, violation or default that is waived or will not have (A)
a material adverse effect on the transactions contemplated by any of the
Transaction Documents or (B) a Material Adverse Effect; nor will such actions
result in any violation of the provisions of the Articles of Association of the
Guarantor, the Trust Agreement or the LLC Agreement or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the UBS Entities or any Significant Subsidiary or any of their
properties or assets, except for a violation that will not have a Material
Adverse Effect; and, except such as have been obtained or required under the
Act, the Exchange Act or state securities laws and the qualification of the
Trust Agreement and the Guarantee under the Trust Indenture Act, no
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consent, approval, authorization or order of, or filing or registration with,
any court or governmental agency or body or any stock exchange authorities in
Switzerland or the United States is required to be made or obtained by any of
the UBS Entities in connection with the offering, issuance, and sale of the
Securities or the execution, delivery and performance by the UBS Entities of
each of the Transaction Documents, as applicable.
(g) No Material Adverse Change. Subsequent to the respective dates as of
which information is given in the Registration Statement, the Pre-Pricing
Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if
any, except as otherwise stated therein, (a) there has not been any change in
the share capital or long-term debt of the Guarantor or any of its subsidiaries
that is material to the consolidated financial position of the Trust, the
Company or the Guarantor, and (b) there has been no change, or, to the best of
the knowledge of each of the UBS Entities, any development involving a
prospective change, in or affecting the business, general affairs, management,
consolidated financial position, consolidated shareholders' equity or
consolidated results of operations of the Trust, the Company or the Guarantor,
otherwise than as set forth or contemplated in the Registration Statement, the
Pre-Pricing Prospectuses, the Prospectus and the Permitted Free Writing
Prospectuses, if any, that has had, or is likely to have, a Material Adverse
Effect.
(h) Investment Company Act. None of the UBS Entities is, and after giving
effect to the offering and sale of the Securities and the application of the net
proceeds therefrom as described in the forepart of this Agreement and in the
Disclosure Package will be, required to register as an "investment company"
under the Investment Company Act of 1940, as amended (the "Investment Company
Act").
(i) Absence of Proceedings. Except as disclosed in the Disclosure Package,
there is no action, suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending to which any of the
UBS Entities or any Significant Subsidiary of the Guarantor is a party or of
which any property or assets of any of them is the subject that, if determined
adversely to any of them, are likely, individually or in the aggregate, to have
a Material Adverse Effect or could adversely affect the consummation of the
transactions contemplated by this Agreement or the performance by any of the UBS
Entities of its obligations hereunder, and, to the best of the knowledge of each
of the UBS Entities, no such proceedings are threatened or contemplated.
(j) Authorization of Trust Agreement. The Trust Agreement has been duly
authorized by the Company and, at the time of purchase, will have been executed
and delivered by the Company, as Grantor, and, assuming due authorization,
execution and delivery of the Trust Agreement by the Trustee, the Trust
Agreement will, at the time of purchase, be a valid and binding obligation of
the Company enforceable against it in accordance with its terms, except to the
extent that enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers),
reorganization, moratorium or similar laws affecting enforcement of creditors'
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rights generally and except to the extent that enforcement thereof is subject to
general principles of equity (regardless of whether enforcement is considered in
a proceeding in equity or at law) (the "Bankruptcy Exceptions"); and, at the
time of purchase, the Trust Agreement will have been duly qualified under the
Trust Indenture Act.
(k) Authorization of Trust Preferred Securities. At the time of purchase,
the Trust Preferred Securities will have been duly authorized by the Trust
Agreement and, when issued and delivered against payment of the consideration
set forth in this Agreement, will be validly issued and (subject to the terms of
the Trust Agreement) fully paid and non-assessable and will be entitled to the
benefits of the Trust Agreement; and the issuance of the Trust Preferred
Securities is not subject to preemptive or other similar rights; and (subject to
the terms of the Trust Agreement) holders of Trust Preferred Securities will be
entitled to the same limitation of personal liability under Delaware law as
extended to stockholders of private corporations for profit.
(l) Authorization of Guarantee. The Guarantee has been duly authorized by
the Guarantor and, when validly executed and delivered (if applicable under
applicable law) by the Guarantor and, assuming due authorization, execution and
delivery of the Company Preferred Securities Guarantee by the Guarantee Trustee,
will constitute a valid and binding obligation of the Guarantor, enforceable
against the Guarantor in accordance with its terms, except to the extent that
enforcement thereof may be limited by the Bankruptcy Exceptions. At the time of
purchase, the Guarantee will have been duly qualified under the Trust Indenture
Act.
(m) Authorization of the LLC Agreement. The LLC Agreement has been duly
authorized by the Guarantor and the Trust and, at the time of purchase, will
have been duly executed and delivered by the Guarantor and the Trust, and will
be a valid and legally binding obligation of the Guarantor and the Trust,
enforceable against each of them in accordance with its terms, except to the
extent that enforcement thereof may be limited by the Bankruptcy Exceptions.
(n) Authorization of the Company Common Securities. At the time of
purchase, the Company Common Securities will have been duly authorized by the
LLC Agreement and, when issued and delivered by the Company to the Guarantor
against payment therefor as described in the Registration Statement and
Prospectus, will be validly issued and (subject to the terms of the LLC
Agreement) fully paid limited liability company interests; the issuance of the
Company Common Securities is not subject to preemptive or other similar rights;
and at the time of purchase all of the issued and outstanding Company Common
Securities of the Company will be directly owned by the Guarantor free and clear
of any security interest, mortgage, pledge, lien, encumbrance, claim or equity.
(o) Authorization of the Company Preferred Securities. At the time of
purchase, the Company Preferred Securities will have been duly authorized by the
LLC Agreement and, when issued and delivered by the Company to the Trust against
payment
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therefor as described in the Registration Statement and Prospectus, will be
validly issued and (subject to the terms of the LLC Agreement) fully paid
limited liability company interests; the issuance of the Company Preferred
Securities is not subject to preemptive or other similar rights; and at the time
of purchase all of the issued and outstanding Company Preferred Securities of
the Company will be directly owned by the Trust (subject to the rights of
holders of the Trust Preferred Securities) free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity other than claims
of holders of the Trust Preferred Securities.
(p) Authorization of the Administration Agreement. The Administration
Agreement has been duly authorized by the Guarantor and the Company and, at the
time of purchase, will have been duly executed and delivered by the Guarantor
and the Company and will constitute a valid and binding obligation of the
Guarantor and the Company, enforceable against the Guarantor and the Company in
accordance with its terms, except to the extent that enforcement thereof may be
limited by the Bankruptcy Exceptions.
(q) Payments under the Guarantee. All payments, if any, made by the
Guarantor under the Guarantee may, under the current laws and regulations of
Switzerland, be paid by the Guarantor in United States dollars and may be freely
transferred out of Switzerland, and may be paid under the current laws and
regulations of Switzerland without the necessity of obtaining any consent,
approval, authorization, registration or other action by, or filing with, any
governmental authority of Switzerland, except as described or contemplated in
the Registration Statement and except for such prohibitions that would not
materially aversely affect the financial condition or results of operation of
the Guarantor in the context of the issue of the Securities.
(r) Fair Summary. [The statements set forth in the Registration Statement,
any Pre-Pricing Prospectus, any Permitted Free Writing Prospectus and the
Prospectus under the captions "Supplemental Information Regarding UBS Preferred
Funding Trust ___ ", "Supplemental Information Regarding UBS Preferred Funding
Company V", "The UBS Preferred Funding Trusts", "The UBS Preferred Funding
Companies", "Description of Trust Preferred Securities", "Description of Company
Preferred Securities", "Description of UBS AG Subordinated Guarantees" and
"Description of Subordinated Notes of UBS AG" insofar as they purport to
constitute a summary of the terms of the Securities and each of the Transaction
Documents referred to therein and under the captions "U.S. Tax Considerations"
and "Tax Considerations Under the Laws of Switzerland" insofar as they purport
to describe the provisions of the laws and documents referred to therein are, in
all material respects, accurate, complete and fair.]
(s) Officer's Certificate. Any certificate signed by the Trustee, an
officer of any of the UBS Entities or any of its subsidiaries and delivered to
the Underwriters or to counsel for the Underwriters in connection with the
offering of the Securities shall be deemed a representation and warranty by the
relevant UBS Entities to each Underwriter as to the matters covered thereby on
the date of such certificate.
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(t) Domicile. The Trust and the Company are, and will be at all times that
the Securities are outstanding, resident and effectively managed outside
Switzerland and the proceeds from the offering and sale of the Securities will
be used outside of Switzerland.
SECTION 2. Sale and Delivery to Underwriters; Closing.
(a) Securities. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Trust
agrees to sell to each Underwriter, severally and not jointly, and each
Underwriter, severally and not jointly, agrees to purchase from the Trust, at
the initial public offering price set forth in Schedule B, the number of Trust
Preferred Securities set forth in Schedule A opposite the name of such
Underwriter, plus any additional number of Trust Preferred Securities that such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof.
(b) Payment. Payment of the purchase price for, and delivery of
certificates for, the Trust Preferred Securities shall be made at the offices of
Sullivan & Cromwell LLP or at such other place as shall be agreed upon by the
Representative and the UBS Entities, at 10:00 a.m. (New York City time) on the
third business day after the date hereof (unless postponed in accordance with
the provisions of Section 10), or such other time not later than ten business
days after such date as shall be agreed upon by the Representative and the UBS
Entities (such time and date of payment and delivery being herein called the
"time of purchase").
Payment shall be made to the Trust by wire transfer of immediately
available funds to a bank account designated by the UBS Entities, against
delivery to such persons designated by the Representative for the respective
accounts of the Underwriters of one or more certificates in global form for the
Trust Preferred Securities to be purchased by them. It is understood that each
Underwriter has authorized the Representative, for its account, to accept
delivery of, receipt for, and make payment of the purchase price for, the Trust
Preferred Securities that it has agreed to purchase. UBS Securities LLC,
individually and not as representative of the Underwriters, may (but shall not
be obligated to) make payment of the purchase price for the Trust Preferred
Securities to be purchased by any Underwriter whose funds have not been received
by the time of purchase, but such payment shall not relieve such Underwriter
from its obligations hereunder.
The purchase price per Trust Preferred Security to be paid by the several
Underwriters for the Trust Preferred Securities shall be an amount equal to the
initial public offering price as set forth in Schedule B.
As compensation to the Underwriters for their commitments hereunder, the
Company hereby agrees to pay at the time of purchase to the Representative, for
the accounts of the several Underwriters, a commission per Trust Preferred
Security set forth on Schedule B. At the time of purchase, the Company will pay,
or cause to be paid, such commission by wire transfer of immediately available
funds to a bank account designated by the Representative for the account of the
Underwriters.
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(c) Denominations; Registration. Certificates for the Trust Preferred
Securities shall be in such denominations and registered in such names as the
Representative may request in writing at least one business day before the time
of purchase. The Trust Preferred Securities will be made available for
examination and packaging by the Underwriters in the City of New York not later
than 10:00 a.m. (New York City time) on the business day prior to the time of
purchase.
(d) [Foreign Selling Restrictions.
(i) United Kingdom. Each Underwriter represents and agrees that (a)
it has complied and will comply with all applicable provisions of the
Financial Services and Markets Act 2000 (the "FSMA") of Great Britain with
respect to anything done by it in relation to the Trust Preferred
Securities in, from or otherwise involving the United Kingdom; and (b) it
has only communicated or caused to be communicated and will only
communicate or cause to be communicated any invitation or inducement to
engage in investment activity (within the meaning of Section 21 of the
FSMA) received by it in connection with the issue or sale of the Trust
Preferred Securities or any investments representing the Trust Preferred
Securities in circumstances in which Section 21(1) of the FSMA does not
apply to the Trust.
(ii) European Economic Area. In relation to each Member State of the
European Economic Area which has implemented the Prospectus Directive
(each, a "Relevant Member State"), each Underwriter represents and agrees
that with effect from and including the date on which the Prospectus
Directive is implemented in that Relevant Member State (the "Relevant
Implementation Date") it has not made and will not make an offer of Trust
Preferred Securities to the public in that Relevant Member State, except
that it may, with effect from and including the Relevant Implementation
Date, make an offer of the Trust Preferred Securities in that Relevant
Member State: (a) at any time in (or in Germany, where the offer starts
within) the period beginning on the date of publication of a prospectus in
relation to the Trust Preferred Securities which has been approved by the
competent authority in that Relevant Member State or, where appropriate,
approved in another Relevant Member State and notified to the competent
authority in that Relevant Member State, all in accordance with the
Prospectus Directive, and ending on the date which is 12 months after the
date of such publication; (b) at any time to legal entities which are
authorized or regulated to operate in the financial markets or, if not so
authorized or regulated, whose corporate purpose is solely to invest in
securities; (c) at any time to any legal entity which has two or more of
(1) an average of at least 250 employees during the last financial year;
(2) a total balance sheet of more than E43 million and (3) an annual net
turnover of more than E50 million, as shown in its last annual or
consolidated accounts; or (d) at any time in any other circumstances which
do not require the publication by the Company of a prospectus pursuant to
Article 3 of the Prospectus Directive.
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For the purposes of this Section 2(d)(ii), the expression an "offer
of Trust Preferred Securities to the public" in relation to any Trust
Preferred Securities in any Relevant Member State means the communication
to persons in any form and by any means of sufficient information on the
terms of the offer and the Trust Preferred Securities to be offered so as
to enable an investor to decide to purchase or subscribe for the Trust
Preferred Securities, as the same may be varied in that Relevant Member
State by any measure implementing the Prospectus Directive in that
Relevant Member State and the expression "Prospectus Directive" means EU
Directive 2003/71/EC on the prospectus to be published when securities are
offered to the public or admitted to trading and includes any relevant
implementing measure in each Relevant Member State.
(iii) Japan. Each of the Underwriters understands that the Trust
Preferred Securities have not been and will not be registered under the
Securities and Exchange Law of Japan (the "Securities and Exchange Law").
Each of the Underwriters represents and agrees that the Trust Preferred
Securities may not be offered or sold, directly or indirectly, in Japan or
to, or for the benefit of, any resident of Japan (which term as used
herein means any person resident in Japan, including any corporation or
other entity organized under the laws of Japan) or to others for
re-offering or resale, directly or indirectly, in Japan or to a resident
of Japan, except pursuant to any exemption from the registration
requirements of, and otherwise in compliance with, the Securities and
Exchange Law and any other applicable laws, regulations and ministerial
guidelines of Japan.
(iv) General. With respect to any other jurisdiction outside of the
United States, each Underwriter represents and agrees that it has not
offered or sold and will not offer or sell any of the Trust Preferred
Securities in any jurisdiction, except under circumstances that resulted,
or will result, in compliance with the applicable rules and regulations of
such jurisdiction.]
(e) Suitability Restrictions. Each Underwriter represents and agrees that
it will not execute any transaction in a discretionary account without prior
written approval of the transaction by the customer.
SECTION 3. Covenants of the UBS Entities.
The UBS Entities covenant with each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
UBS Entities, subject to Section 3(b), will comply with the requirements of Rule
424(b) and will notify the Representative immediately, and confirm the notice in
writing, (i) when any post-effective amendment to the Registration Statement
shall become effective or any amended Prospectus shall have been filed, (ii) of
any request by the Commission for any amendment or supplement to the
Registration Statement any Pre-Pricing Prospectus, the Prospectus or any
Permitted Free Writing Prospectus or for additional information with respect
thereto and (iii) of any notice of institution of
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proceedings for, or the issuance by the Commission of, any stop order suspending
the effectiveness of the Registration Statement or of any order preventing or
suspending the use of the Basic Prospectus, any Pre-Pricing Prospectus, the
Prospectus Supplement, the Prospectus or any Permitted Free Writing Prospectus
or of the suspension of the qualification of the Securities for offering or sale
in any jurisdiction, or of the initiation or threatening of any proceeding for
any of such purposes. The UBS Entities will make reasonable efforts to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) Filing of Amendments. During the period when a prospectus is required
by the Act to be delivered (whether physically or through compliance with Rule
172 under the Act or any similar rule) in connection with any sale of
Securities, the UBS Entities will give the Representative notice of their
intention to file or prepare any amendment or supplement to the Registration
Statement, any Pre-Pricing Prospectus or the Prospectus, whether pursuant to the
Act, the Exchange Act or otherwise, will furnish the Representative with copies
of any such documents a reasonable amount of time prior to such proposed filing
or use, as the case may be, and will not file or use any such document to which
the Representative or counsel for the Underwriters shall reasonably object.
(c) Delivery of Registration Statements. The UBS Entities have furnished
or will deliver to the Representative and counsel for the Underwriters, without
charge, conformed copies of the Registration Statement as originally filed and
of each amendment thereto (including exhibits filed therewith and documents
incorporated or deemed to be incorporated by reference therein) and conformed
copies of all consents and certificates of experts, and will also deliver to the
Representative upon request, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto
(without exhibits and documents incorporated by reference) for each of the
Underwriters.
(d) Delivery of Prospectuses. The UBS Entities have delivered to each
Underwriter, without charge, as many copies of each Pre-Pricing Prospectus and
any other information included in the Disclosure Package as such Underwriter
reasonably requested, and the UBS Entities hereby consent to the use of such
copies for purposes permitted by the Act. The UBS Entities will furnish to each
Underwriter, without charge, during the period when a prospectus is required by
the Act to be delivered (whether physically or through compliance with Rule 172
under the Act or any similar rule) in connection with the sale of Securities,
such number of copies of the Prospectus (as amended), and documents incorporated
by reference therein, as such Underwriter may reasonably request. In case any
Underwriter is required to deliver a prospectus (whether physically or through
compliance with Rule 172 under the Act or any similar rule) in connection with
the sale of the Securities after the nine-month period referred to in Section
10(a)(3) of the Act, or after the time a post-effective amendment to the
Registration Statement is required pursuant to Item 512(a) of Regulation S-K
under the Act, the UBS Entities will prepare, at their expense, promptly upon
request, such
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amendment or amendments to the Registration Statement and the Prospectus as may
be necessary to permit compliance with the requirements of Section 10(a)(3) of
the Act or Item 512(a) of Regulation S-K under the Act, as the case may be.
(e) Continued Compliance with Securities Laws. The UBS Entities will
comply with the Act, the Exchange Act and the Trust Indenture Act with respect
to the offer of the Securities so as to permit the completion of the
distribution of the Securities as contemplated in this Agreement and in the
Prospectus. If at any time when a prospectus is required by the Act to be
delivered (whether physically or through compliance with Rule 172 under the Act
or any similar rule) in connection with sales of the Trust Preferred Securities,
any event shall occur or condition shall exist as a result of which it is
necessary, in the opinion of counsel for the Underwriters or for the UBS
Entities, to amend the Registration Statement or amend the Prospectus in order
that the Prospectus will not include any untrue statements of a material fact or
omit to state a material fact necessary in order to make the statements therein
not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend the
Prospectus in order to comply with the requirements of the Act, the UBS Entities
will promptly prepare and file with the Commission, subject to Section 3(b),
such amendment or amendments as may be necessary to correct such statement or
omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the UBS Entities will furnish to the Underwriters such
number of copies of such amendment as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The UBS Entities will use all reasonable
efforts, in cooperation with the Underwriters, to qualify the Securities for
offering and sale under the applicable securities laws of such states and other
domestic or foreign jurisdictions as the Representative may designate and to
maintain such qualifications in effect for a period of one year from the later
of the effective date of the Registration Statement or, if less, such other
period as may be necessary to complete the distribution of the Securities;
provided, however, that the UBS Entities shall not be obligated to file any
general consent to service of process or to qualify as a foreign corporation or
as a dealer in securities in any jurisdiction in which it is not so qualified or
to subject itself to taxation in respect of doing business in any jurisdiction
in which it is not otherwise so subject. In each domestic or foreign
jurisdiction in which the Securities have been so qualified, the UBS Entities
will file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement.
(g) Final Term Sheet; Rule 433. The UBS Entities will prepare a final term
sheet, containing solely a description of the Trust Preferred Securities, and
will file such term sheet pursuant to Rule 433(d) under the Securities Act
within the time required by such Rule. The UBS Entities will comply with Rule
433(g) under the Act.
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(h) Rule 158. The UBS Entities will timely file such reports pursuant to
the Exchange Act as are necessary in order to make generally available to their
security holders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the Act.
(i) Payment of Filing Fees. The UBS Entities will pay the fees applicable
to the Registration Statement in connection with the offering of the Securities
within the time required by Rule 456 under the Act (without reliance on
subsection (b)(1)(i) thereof) and in compliance with Rule 456(r) under the Act.
(j) Use of Proceeds. The UBS Entities will use or cause to be used the net
proceeds received from the sale of the Securities in the manner specified in the
Prospectus under "Use of Proceeds" and such proceeds will be used outside of
Switzerland.
(k) Listing. The UBS Entities will use all reasonable efforts to effect
and maintain the listing of the Trust Preferred Securities on the [insert
applicable stock exchange].
(l) Ratings. The UBS Entities shall take all reasonable action necessary
to enable Moody's Investors Service, Inc. ("Moody's"), Standard & Poor's Ratings
Service, a division of McGraw Hill, Inc. ("S&P"), and Fitch, Inc. ("Fitch") to
provide their respective ratings of the Trust Preferred Securities and the
Company Preferred Securities.
(m) Clearance and Settlement. The UBS Entities will cooperate with the
Underwriters and take all reasonable action necessary if requested by the
Representative to permit the Trust Preferred Securities to be eligible for
clearance and settlement through the facilities of The Depository Trust Company
("DTC"), Euroclear Bank, S.A., as the operator of the Euroclear System
("Euroclear"), and Clearstream Banking SA ("Clearstream").
(n) Restriction on Sale of Securities. Except as contemplated by this
Agreement, during a period of 30 days from the date of the Prospectus, neither
the Trust nor the Company nor any other subsidiary of the Guarantor that is
similar to the Trust or the Company will, without the prior written consent of
the Representative, directly or indirectly, sell, offer to sell, grant any
option for sale of, or otherwise dispose of, any Trust Preferred Securities or
any Company Preferred Securities or any security convertible into or
exchangeable into or exercisable for Trust Preferred Securities or Company
Preferred Securities.
(o) Reporting Requirements. The UBS Entities, during the period when a
prospectus is required by the Act to be delivered (whether physically or through
compliance with Rule 172 under the Act or any similar rule) in connection with
any sale of Securities, will file all documents required to be filed with the
Commission pursuant to the Exchange Act within the time periods required by the
Exchange Act.
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(p) Management of the Trust and the Company. As long as any of the
Securities are outstanding, the Trust and the Company will at all times be
resident and effectively managed outside Switzerland.
SECTION 4. Payment of Expenses.
(a) Expenses. The UBS Entities will pay all expenses incident to the
performance of their obligations under this Agreement, including (i) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits) as originally filed and of each amendment or
supplement thereto, (ii) the preparation, copying and delivery to the
Underwriters of each of the Transaction Documents and such other documents as
may be required in connection with the offering, purchase, sale, issuance or
delivery of the Securities (other than fees of counsel for the Underwriters
related thereto), (iii) the preparation, issuance and delivery of the
certificates for the Trust Preferred Securities to the Underwriters, (iv) the
fees and disbursements of the UBS Entities' counsel, accountants, experts and
other advisors, (v) the qualification of the Securities under securities laws in
accordance with the provisions of Section 3(f) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of each Pre-Pricing Prospectus, the Prospectus
Supplement, the Prospectus, each Permitted Free Writing Prospectus and any
amendments or supplements thereto, (vii) the fees and expenses of the Trustees,
including the reasonable fees and disbursements of counsel for the Trustees,
(viii) any fees payable in connection with the rating of the Trust Preferred
Securities and the Company Preferred Securities, (ix) the fees and expenses
incurred in connection with the listing of the Trust Preferred Securities on the
[insert applicable stock exchanges], (x) the fees and expenses incurred in
connection with the approval by DTC, Euroclear and Clearstream of the Trust
Preferred Securities for clearance through their respective systems, and (xi)
all filing fees and the reasonable fees and disbursements counsel to the
Underwriters incurred in connection with the review and qualification of the
offering of the Securities by the National Association of Securities Dealers,
Inc.
(b) Termination of Agreement. If this Agreement is terminated by the
Representative in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the UBS Entities shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
[insert name of counsel for underwriters], U.S. counsel for the Underwriters.
SECTION 5. Conditions of Underwriters' Obligations.
The obligations of the several Underwriters hereunder are subject to the
accuracy in all material respects of the representations and warranties of the
UBS Entities contained in Section 1 hereof and in certificates of any officer of
the UBS Entities or any affiliate or subsidiary of the UBS Entities delivered
pursuant to the provisions hereof, to
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the performance by each of the UBS Entities in all material respects of its
covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration Statement
and any Rule 462(b) Registration Statement required to be filed under the Act
prior to the sale of the Securities shall have been filed and shall have become
effective; and at the time of purchase, no stop order of the Commission
preventing or suspending the use of the Basic Prospectus, any Pre-Pricing
Prospectus, the Prospectus Supplement, the Prospectus, the final term sheet
contemplated by Section 3(g) or any Permitted Free Writing Prospectus, or the
effectiveness of the Registration Statement, shall have been issued under the
Act and no proceedings for that purpose initiated or threatened by the
Commission, and any request on the part of the Commission for additional
information shall have been complied with to the reasonable satisfaction of
counsel to the Underwriters. At the time of purchase, a prospectus shall have
been filed with the Commission in accordance with Rule 424(b).
(b) Opinion of Swiss Counsel. At the time of purchase, the Representative
shall have received a written opinion, dated as of the time of purchase, of
Homburger, Swiss counsel to the Guarantor, in form and substance reasonably
satisfactory to counsel for the Underwriters, together with signed or reproduced
copies of such opinion for each of the other Underwriters, to the effect set
forth in Exhibit A hereto. Such counsel may also state that, insofar as such
opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the UBS Entities and certificates of
public officials and may contain other customary or appropriate assumptions and
qualifications reasonably satisfactory to counsel for the Underwriters.
(c) Opinion of U.S. Counsel for the UBS Entities. At the time of purchase,
the Representative shall have received a written opinion, dated as of the time
of purchase, of Sullivan & Cromwell LLP, U.S. counsel for the UBS Entities, in
form and substance reasonably satisfactory to counsel for the Underwriters,
together with signed or reproduced copies of such opinion for each of the other
Underwriters, to the effect set forth in Exhibit B hereto. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the UBS
Entities and certificates of public officials. Such opinion also may contain
other customary or appropriate assumptions and qualifications reasonably
satisfactory to counsel for the Underwriters.
(d) Opinion of Delaware Counsel for the UBS Entities. At the time of
purchase, the Representative shall have received a written opinion, dated as of
the time of purchase, of Richards, Layton & Finger, P.A., Delaware counsel for
the UBS Entities, in form and substance reasonably satisfactory to counsel for
the Underwriters, together with signed or reproduced copies of such opinion for
each of the other Underwriters, to the effect set forth in Exhibit C hereto.
Such counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon certificates of
officers of the UBS Entities and certificates of public officials. Such
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opinion may also contain other customary or appropriate assumptions and
qualifications reasonably satisfactory to counsel for the Underwriters.
(e) Opinion of Counsel for Underwriters. At the time of purchase, the
Representative shall have received the favorable opinion, dated as of the time
of purchase, of [insert name of counsel for underwriters], U.S. counsel for the
Underwriters, together with signed or reproduced copies of such opinion for each
of the other Underwriters, in form and substance satisfactory to the
Underwriters.
(f) Opinion of Counsel for the Trustees. At the time of purchase, the
Representative shall have received a written opinion, dated as of the time of
purchase, of Richards, Layton & Finger, P.A., counsel for the Trustees, in form
and substance reasonably satisfactory to counsel for the Underwriters, together
with signed or reproduced copies of such opinion for each of the other
Underwriters, to the effect set forth in Exhibit D hereto and to such further
effect as counsel for the Underwriters may reasonably request.
(g) Opinion of U.S. Tax Counsel. At the time of purchase, the
Representative shall have received a written opinion, dated as of the time of
purchase, of Sullivan & Cromwell LLP, U.S. tax counsel for the UBS Entities, in
form and substance satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such opinion for each of the other Underwriters.
Such opinion shall confirm Sullivan & Cromwell LLP's opinion set forth in the
Prospectus under the caption "U.S. Tax Considerations" and state that, subject
to the qualifications set forth therein, the discussion set forth in the
Prospectus under such caption is their opinion and is an accurate summary of the
U.S. tax matters described therein. Such counsel may also state that, insofar as
such opinion involves factual matters, they have relied, to the extent they deem
proper, upon certificates of officers of the UBS Entities and certificates of
public officials. Such opinion may also contain other customary appropriate
assumptions and qualifications reasonably satisfactory to counsel for the
Underwriters.
(h) Opinion of Swiss Tax Advisor. At the time of purchase, the
Representative shall have received a written opinion, dated as of the time of
purchase, of Homburger, Swiss tax advisor for the UBS Entities, in form and
substance satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such opinion for each of the other Underwriters. Such
opinion shall confirm Homburger's opinion set forth in the Prospectus under the
caption "Tax Considerations Under the Laws of Switzerland" and state that,
subject to the qualifications set forth therein, the discussion set forth in the
Prospectus under such caption is their opinion and is an accurate summary of the
Swiss tax matters described therein. Such counsel may also state that, insofar
as such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the UBS Entities and certificates
of public officials. Such opinion may also contain other customary appropriate
assumptions and qualifications reasonably satisfactory to counsel for the
Underwriters.
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(i) Officers' Certificate. At the time of purchase, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Disclosure Package, any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the UBS Entities and their subsidiaries, considered as one
enterprise, and the Representative shall have received certificates of an
executive of each of the UBS Entities, dated as of the time of purchase, to the
effect that there has been no such adverse change that is material in the
context of the issue of the Securities, the representations and warranties in
Section 1 hereof were true and correct in all material respects when made and
are true and correct in all material respects with the same force and effect as
though expressly made at and as of the time of purchase (without giving effect
to any limitation as to "materiality" or "Material Adverse Effect" set forth in
the applicable representation or warranty), the UBS Entities shall have complied
in all material respects with all agreements and satisfied all conditions on
their part to be performed or satisfied at or prior to the time of purchase, and
no stop order of the Commission preventing or suspending the use of the Basic
Prospectus, any Pre-Pricing Prospectus, the Prospectus Supplement, the
Prospectus or any Permitted Free Writing Prospectus, or the effectiveness of the
Registration Statement, has been issued and, to such officer's knowledge, no
proceedings for that purpose have been instituted or are pending or are
contemplated by the Commission.
(j) Accountant's Comfort Letters. At the time of the execution of this
Agreement, the Representative shall have received from Ernst & Young LLP a
letter, dated as of the date hereof, in form and substance reasonably
satisfactory to the Representative, together with signed or reproduced copies of
such letters for each of the other Underwriters, containing statements and
information of the type ordinarily included in accountants' "comfort letters" to
underwriters with respect to the financial statements and certain financial
information contained in the Registration Statement, the Prospectus and any
Permitted Free Writing Prospectus, including reports incorporated by reference
therein, in each case as specified by counsel for the Underwriters.
(k) Bring-down Comfort Letters. At the time of purchase, the
Representative shall have received from Ernst & Young LLP a letter, dated as of
the time of purchase, to the effect that they reaffirm the statements made in
the letter furnished pursuant to subsection (j) of this Section, except that the
specified date referred to shall be a date not more than five business days
prior to the time of purchase.
(l) Maintenance of Rating. At the time of purchase, the Trust Preferred
Securities and the Company Preferred Securities shall be rated at least [A1] by
Moody's, [AA-] by S&P, and [AA+] by Fitch, and the UBS Entities shall have
delivered to the Representative a letter dated on, or prior to, the time of
purchase, from each such rating agency, or other evidence satisfactory to the
Representative, confirming that the Trust Preferred Securities and the Company
Preferred Securities have such ratings. Since the date of this Agreement, there
shall not have occurred a downgrading in the rating assigned to the securities
of any of the UBS Entities by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for purposes of
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Rule 436(g)(2) under the Act, and no such organization shall have publicly
announced that it has under surveillance or review, that does not indicate an
improvement, its rating of any securities of any of the UBS Entities.
(m) Approval of Listing and Settlement. At the time of purchase, the Trust
Preferred Securities shall have been approved for listing on [insert applicable
stock exchange], subject only to official notice of issuance, and approved for
settlement through DTC, Euroclear and Clearstream.
(n) Additional Documents. At the time of purchase, counsel for the
Underwriters shall have been furnished with such documents as they may
reasonably require for the purpose of enabling them to pass upon the issuance
and sale of the Securities as herein contemplated, or in order to evidence the
accuracy of any of the representations or warranties, or the fulfillment of any
of the conditions, herein contained; and all proceedings taken by the UBS
Entities in connection with the issuance and sale of the Securities as herein
contemplated shall be reasonably satisfactory in form and substance to the
Representative and counsel for the Underwriters.
(o) Termination of Agreement. If any condition specified in this Section
shall not have been fulfilled in all material respects when and as required to
be fulfilled, this Agreement may be terminated by the Representative by notice
to the UBS Entities at any time at or prior to the time of purchase, and such
termination shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 1, 6, 7 and 8 shall survive any
such termination and remain in full force and effect.
SECTION 6. Indemnification.
(a) Indemnification of Underwriters. The UBS Entities agree, jointly and
severally, to indemnify and hold harmless each Underwriter and each person, if
any, who controls any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act (each an "Indemnified Person"), as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, arising out of any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), or the omission or alleged omission
therefrom of a material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of any untrue
statement or alleged untrue statement of a material fact contained in any
Prospectus (the term Prospectus for the purpose of this Section 6 being
deemed to include any Basic Prospectus, any Pre-Pricing Prospectus, the
Prospectus Supplement, the Prospectus and any amendments or supplements to
the foregoing), in any Permitted Free Writing Prospectus, in any "issuer
information" (as defined in Rule 433 under the Act) of any UBS Entity or
in any Prospectus together with any combination of one or more of the
Permitted Free Writing Prospectuses, if any, or the omission or alleged
omission therefrom
-21-
of a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, provided that (subject to Section
6(d) below) any such settlement is effected with the written consent of
the Guarantor; and
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(c) hereof, the fees and disbursements of
counsel chosen by the Representative), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced
or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission,
to the extent that any such expense is not paid under (i) or (ii) above;
provided, however, that the indemnity set forth in this Section 6(a) shall not
apply to any loss, liability, claim, damage or expense to the extent arising out
of any untrue statement or omission or alleged untrue statement or omission made
in reliance upon and in conformity with information concerning such Underwriter
furnished in writing by or on behalf of such Underwriter through you to the
Company expressly for use in, the Registration Statement or arises out of or is
based upon any omission or alleged omission to state a material fact in the
Registration Statement in connection with such information, which material fact
was not contained in such information and which material fact was required to be
stated in such Registration Statement or was necessary to make such information
not misleading or (ii) any untrue statement or alleged untrue statement of a
material fact included in any Prospectus (the term Prospectus for the purpose of
this Section 6 being deemed to include any Basic Prospectus, any Pre-Pricing
Prospectus, the Prospectus Supplement, the Prospectus and any amendments or
supplements to the foregoing), in any Permitted Free Writing Prospectus, in any
"issuer information" (as defined in Rule 433 under the Act) of the Company or in
any Prospectus together with any combination of one or more of the Permitted
Free Writing Prospectuses, if any, or arises out of or is based upon any
omission or alleged omission 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, except, with respect to such Prospectus or Permitted Free
Writing Prospectus, insofar as any such loss, damage, expense, liability or
claim arises out of or is based upon any untrue statement or alleged untrue
statement of a material fact contained in, and in conformity with information
concerning such Underwriter furnished in writing by or on behalf of such
Underwriter through you to the Company expressly for use in, such Prospectus or
Permitted Free Writing Prospectus or arises out of or is based upon any omission
or alleged omission to state a material fact in such Prospectus or Permitted
Free Writing Prospectus in connection with such
-22-
information, which material fact was not contained in such information and which
material fact was necessary in order to make the statements in such information,
in the light of the circumstances under which they were made, not misleading.
(b) Indemnification of the UBS Entities, Directors and Officers. Each
Underwriter, severally in proportion to its respective purchase obligation and
not jointly, agrees to indemnify and hold harmless the UBS Entities, their
respective directors or Supervisory or Managing Board members, the Trustee or
the equivalent thereof, each of the officers of the UBS Entities who signed the
Registration Statement, and each person, if any, who controls any of the UBS
Entities within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), or any Prospectus (or any amendment or supplement thereto)
or any Permitted Free Writing Prospectus in reliance upon and in conformity with
written information furnished to the UBS Entities by such Underwriter through
the Representative expressly for use in the Registration Statement (or any
amendment thereto), such Prospectus (or any amendment or supplement thereto) or
such Permitted Free Writing Prospectus.
(c) Actions Against Parties; Notification. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve such
indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability that it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Representative, and,
in the case of parties indemnified pursuant to Section 6(b) above, counsel to
the indemnified parties shall be selected by the UBS Entities, provided,
however, that if it so elects within a reasonable time after receipt of such
notice, an indemnifying party, jointly with any other indemnifying party
receiving such notice, may assume the defense of such action with counsel chosen
by it and approved by the indemnified parties defendant in such action (which
approval shall not be unreasonably withheld), unless such indemnified parties
reasonably object to such assumption on the ground that there may be legal
defenses available to them that are different from or in addition to those
available to such indemnifying party. If an indemnifying party assumes the
defense of such action, the indemnifying party shall not be liable for any fees
and expenses of counsel for the indemnified parties incurred thereafter in
connection with such action. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying party be liable for fees and expenses of more than one counsel (in
addition to any one firm of local counsel) separate from their own counsel for
all indemnified parties in connection with any one action or separate but
similar or related actions in the
-23-
same jurisdiction arising out of the same general allegations or circumstances.
No indemnifying party shall, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any litigation, or any investigation or proceeding by
any governmental agency or body, commenced or threatened, or any claim
whatsoever in respect of which indemnification or contribution could be sought
under this Section 6 or Section 7 hereof (whether or not the indemnified parties
are actual or potential parties thereto), unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such litigation, investigation, proceeding or claim and
does not include a statement as to or an admission of fault, culpability or a
failure to act by or on behalf of any indemnified party.
(d) Settlement Without Consent If Failure to Reimburse. If at any time an
indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for reasonable fees and expenses of counsel, such indemnifying
party agrees that it shall be liable for any settlement of the nature
contemplated by Section 6(a)(ii) effected without its written consent if (i)
such settlement is entered into more than 45 days after receipt by such
indemnifying party of the aforesaid request, (ii) such indemnifying party shall
have received notice of the terms of such settlement at least 30 days prior to
such settlement being entered into and (iii) such indemnifying party shall not
have reimbursed such indemnified party in accordance with such request prior to
the date of such settlement.
SECTION 7. Contribution.
In order to provide for just and equitable contribution in circumstances
under which the indemnification provided for in Section 6 hereof is for any
reason held to be unenforceable by an indemnified party in respect of any
losses, liabilities, claims, damages or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount of such losses,
liabilities, claims, damages and expenses incurred by such indemnified party, as
incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the UBS Entities on the one hand and the Underwriters on
the other hand from the offering of the Securities pursuant to this Agreement or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the UBS
Entities on the one hand and of the Underwriters on the other hand in connection
with the statements or omissions that resulted in such losses, liabilities,
claims, damages or expenses, as well as any other relevant equitable
considerations.
The relative benefits received by the UBS Entities on the one hand and the
Underwriters on the other hand in connection with the offering of the Securities
pursuant to this Agreement shall be deemed to be in the same respective
proportions as the total net proceeds from the offering of the Securities
pursuant to this Agreement (before deducting expenses but after deducting the
total underwriting commission received by the
-24-
Underwriters) received by the UBS Entities and the total underwriting commission
received by the Underwriters, in each case as set forth on the cover of the
Prospectus, bear to the aggregate initial public offering price of the
Securities as set forth on such cover.
The relative fault of the UBS Entities on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the UBS Entities or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The UBS Entities and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Trust Preferred Securities underwritten by it and distributed
to the public were offered to the public exceeds the amount of any damages that
such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each director or Supervisory or Managing Board member or the equivalent of the
UBS Entities, the Trustee, each officer of the UBS Entities who signed the
Registration Statement, and each person, if any, who controls any of the UBS
Entities within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as the UBS Entities. The
Underwriters' respective obligations to contribute pursuant to this Section 7
are several in proportion to the number of Trust Preferred Securities set forth
opposite their respective names in Schedule A hereto and not joint.
-25-
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.
All representations, warranties and agreements contained in this Agreement or in
certificates of officers of the UBS Entities or any of their subsidiaries
submitted pursuant hereto, shall remain operative and in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or
controlling person, or by or on behalf of the UBS Entities, and shall survive
delivery of the Trust Preferred Securities to the Underwriters.
SECTION 9. Termination of Agreement.
(a) Termination; General. The Representative may terminate this Agreement,
by notice to the Guarantor, at any time at or prior to the time of purchase if
there has been, since the time of execution of this Agreement or since the
respective dates as of which information is given in the Registration Statement,
Pre-Pricing Prospectus, Permitted Free Writing Prospectus, if any, and the
Prospectus, any material adverse change in the condition, financial or
otherwise, or in the earnings or business affairs or business prospects of the
UBS Entities and their subsidiaries, considered as one enterprise, whether or
not arising in the ordinary course of business, or (i) if there has occurred any
material adverse change in the international financial markets or the financial
markets in the United States or Switzerland, or any outbreak of hostilities or
escalation thereof affecting the United States or Switzerland or other calamity
or crisis, or any change or development involving a prospective change in
national or international political, financial or economic conditions, in each
case the effect of which is such as to make it, in the judgment of the
Representative (after discussion with the Guarantor to the extent practicable),
impracticable to market the Trust Preferred Securities or to enforce contracts
for the sale of the Trust Preferred Securities, or (ii) if trading in any
securities of the UBS Entities has been suspended or materially limited by the
Commission, the New York Stock Exchange or [insert applicable stock exchanges]
or (iii) if trading generally on the American Stock Exchange or the New York
Stock Exchange or the [insert applicable stock exchanges] or in the Nasdaq
National Market has been suspended or limited, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices have been required, by any
such exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority, or
(iv) if trading in any securities of the Guarantor has been suspended or limited
on any stock exchange in Switzerland, or minimum or maximum prices for trading
have been fixed, or maximum ranges for prices have been required by any such
stock exchange or any competent governmental authority in or of Switzerland, or
(v) if a banking moratorium has been declared by either Federal or New York, or
Swiss authorities, or (vi) if there has occurred a change or an official
announcement by a competent authority of a forthcoming change in Swiss taxation
materially adversely affecting the Guarantor or the Guarantee or the transfer
thereof or the imposition of exchange controls by the United States or
Switzerland.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in
-26-
Section 4 hereof, and provided further that Sections 1, 6, 7 and 8 shall survive
such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters.
If one or more of the Underwriters shall fail at the time of purchase to
purchase the Trust Preferred Securities that it or they are obligated to
purchase under this Agreement (the "Defaulted Securities"), the Representative
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth; if, however, the
Representative shall not have completed such arrangements within such 24-hour
period, then:
(i) if the number of Defaulted Securities does not exceed 10% of the
aggregate number of the Trust Preferred Securities to be purchased
hereunder, each of the non-defaulting Underwriters shall be obligated,
severally and not jointly, to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear
to the underwriting obligations of all non-defaulting Underwriters, or
(ii) if the number of Defaulted Securities exceeds 10% of the
aggregate number of the Trust Preferred Securities to be purchased
hereunder, this Agreement shall terminate without liability on the part of
any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default that does not result in a termination of
this Agreement, either the Representative or the Guarantor shall have the right
to postpone the time of purchase for a period not exceeding seven days in order
to effect any required changes in the Registration Statement or Prospectus or in
any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
SECTION 11. Notices.
All notices, requests, statements and other communications hereunder
shall be in writing and shall be delivered or sent by mail, messenger or any
standard form of telecommunication. Notices to the Underwriters shall be
directed to the Representative c/o UBS Securities LLC, Attention: Debt
Syndicate Manager, Facsimile No. [(203) 719-0495]; and notices to the
Guarantor shall be directed to UBS AG, Attention: General Counsel, Facsimile
No. [212) 821-5804]. Any such notice, request, statement or communication
shall be effective upon receipt thereof.
-27-
SECTION 12. Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriters and the UBS Entities and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters and the UBS Entities and their respective successors and the
controlling persons and officers and directors and Supervisory and Managing
Board members or the equivalent referred to in Sections 6 and 7, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the Underwriters
and the UBS Entities and their respective successors, and said controlling
persons and officers and directors and Supervisory and Managing Board members or
the equivalent, and for the benefit of no other person, firm or corporation. No
purchaser of Trust Preferred Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 13. Governing Law, Submission for Jurisdiction.
(a) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. EXCEPT AS OTHERWISE SET FORTH
HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
(b) Submission to Jurisdiction. Each of the parties hereto irrevocably (i)
agrees that any legal suit, action or proceeding against the UBS Entities
brought by any Underwriter or by any person who controls any Underwriter arising
out of or based upon this Agreement or the transactions contemplated hereby may
be instituted in any Federal court located in the State of New York, (ii)
waives, to the fullest extent it may effectively do so, any objection that it
may now or hereafter have to the laying of venue of any such proceeding and
(iii) submits to the non-exclusive jurisdiction of such courts in any such suit,
action or proceeding. The Guarantor irrevocably waives any immunity to
jurisdiction to which it may otherwise be entitled or become entitled (including
sovereign immunity, immunity to pre-judgment attachment, post-judgment
attachment and execution) in any legal suit, action or proceeding against it
arising out of or based on this Agreement or the transactions contemplated
hereby that is instituted in any New York court or in any competent court in
Switzerland. The UBS Entities have appointed [James E. Odell, Esq., c/o UBS AG,
299 Park Avenue, New York, New York, 10171], as their authorized agent (the
"Authorized Agent") upon whom process may be served in any such action arising
out of or based on this Agreement or the transactions contemplated hereby that
may be instituted in any New York court by any Underwriter or by any person who
controls any Underwriter, expressly consent to the jurisdiction of any such
court in respect of any such action, and waives any other requirements of or
objections to personal jurisdiction with respect thereto. Such appointment shall
be irrevocable. The UBS Entities represent and warrant that the Authorized Agent
has agreed to act as such agent for service of process and agrees to take any
and all action, including the filing of any and all documents and instruments,
that may be necessary to
-28-
continue such appointment in full force and effect as aforesaid. Service of
process upon such Authorized Agent and written notice of such service to the UBS
Entities shall be deemed, in every respect, effective service of process upon
the UBS Entities.
SECTION 14. Judgment Currency. In respect of any judgment or order given
or made for any amount due hereunder that is expressed and paid in a currency
(the "judgment currency") other than United States dollars, the Guarantor will
indemnify each Underwriter against any loss incurred by such Underwriter as a
result of any variation as between (i) the rate of exchange at which the United
States dollar amount is converted into the judgment currency for the purpose of
such judgment or order and (ii) the rate of exchange at which an Underwriter is
able to purchase United States dollars with the amount of the judgment currency
actually received by such Underwriter. The foregoing indemnity shall constitute
a separate and independent obligation of the Guarantor and shall continue in
full force and effect notwithstanding any such judgment or order as aforesaid.
The term "rate of exchange" shall include any premiums and costs of exchange
payable in connection with the purchase of or conversion into United States
dollars. In the event that any such Underwriter, as a result of any variation as
noted in (i) or (ii) above, recovers an amount of United States dollars on
conversion of a sum paid in a judgment currency, which amount is in excess of
the judgment or order given or made in United States dollars, such Underwriter
shall remit such excess to the Guarantor.
SECTION 15. Effect of Headings.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
-29-
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the UBS Entities a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriters and the UBS Entities in accordance with its
terms.
Very truly yours,
UBS AG
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
UBS PREFERRED FUNDING COMPANY LLC__
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
UBS PREFERRED FUNDING TRUST ___
By: UBS PREFERRED FUNDING COMPANY LLC ___,
as Grantor
By:
---------------------------------------
Name:
Title:
By:
---------------------------------------
Name:
Title:
Confirmed and Accepted,
as of the date first above written:
UBS SECURITIES LLC
Acting on behalf of itself and as
Representative of the other Underwriters
named in Schedule A hereto.
By:
-----------------------------
Name:
Title:
By:
-----------------------------
Name:
Title
SCHEDULE A
Number of
Name of Underwriter Preferred Securities
- ------------------- --------------------
UBS Securities LLC
[insert names of other underwriters]
------------------
TOTAL
==================
SA-1
SCHEDULE B
1. The initial public offering price per security for the Trust Preferred
Securities, determined as provided in said Section 2, shall be $[1,000] [25].
2. The purchase price per security for the Trust Preferred Securities to
be paid by the several Underwriters shall be $[1,000][25], being an amount equal
to the initial public offering price set forth above.
3. The compensation per Trust Preferred Security to be paid by the Trust
to the several Underwriters in respect of their commitments hereunder shall be
$___ per Trust Preferred Security (or $___ in the aggregate).
SB-1
SCHEDULE C
PERMITTED FREE WRITING PROSPECTUSES
SC-1
EXHIBIT A
FORM OF OPINION OF SWISS COUNSEL
1. The Guarantor has been duly incorporated and is validly existing as a
corporation under the laws of Switzerland.
2. The Guarantor has the corporate power and authority to execute and
deliver each of the UBS Documents and to perform its obligations under each of
these agreements.
3. The Guarantor has taken all necessary corporate action to authorize the
execution and delivery by the Guarantor of each of the UBS Documents and the
performance by the Guarantor of its obligations under each of these agreements.
4. The Underwriting Agreement, Guarantee, Subordinated Notes and
Administration Agreement have been duly executed and delivered by the Guarantor
and the choice of New York law as the law expressed to be governing each of
these agreements or documents will be recognized under the laws of Switzerland.
Accordingly, (i) New York law will determine the validity, binding nature and
enforceability of each of these agreements or documents, and (ii) these
agreements or documents will, according to the courts of Switzerland duly
applying New York law, constitute valid and legally binding obligations of the
parties thereto, enforceable against the parties thereto in accordance with
their terms.
5. The LLC Agreement has been duly executed and delivered by the Guarantor
and the choice of Delaware law as the law expressed to be governing the LLC
Agreement will be recognized under the laws of Switzerland. Accordingly, (i)
Delaware law will determine the validity, binding nature and enforceability of
the LLC Agreement and (ii) the LLC Agreement will, according to the courts of
Switzerland duly applying Delaware law, constitute valid and legally binding
obligations of the parties thereto, enforceable against the parties thereto in
accordance with their respective terms.
6. The execution and delivery by the Guarantor and the other parties
thereto of each of the UBS Documents and the performance by the Guarantor and
the other parties thereto of their respective obligations under each of the UBS
Documents do not and will not conflict with or result in a breach of any
provision of the laws of Switzerland or of the Articles of Association.
7. No license, authorization, permission or consent from any public
authority or governmental agency of Switzerland is required by the laws of
Switzerland for the valid execution and delivery by the Guarantor and the other
parties thereto of each of the UBS Documents or for the performance by the
Guarantor and the other parties thereto of their respective obligations under
each of the UBS Documents.
A-1
8. In order to insure the legality, validity, enforceability or
admissibility in evidence of each of the UBS Documents, it is not necessary that
they be filed or recorded with any public office in Switzerland.
9. No exchange control regulations are currently in force in Switzerland
and no authorization, approval, consent or license of any governmental authority
or agency of or in Switzerland is required for the payment by the Trust of any
amounts pursuant to the terms of the Trust Preferred Securities or for the
payment by the Guarantor of any amount pursuant to the terms of the Guarantee or
the Subordinated Notes.
10. The Guarantor can sue and be sued in its own name.
11. It is not necessary that Wilmington Trust Company, acting in its
capacity as the Guarantee Trustee under the Guarantee, should be licensed,
qualified or otherwise entitled to carry on business in Switzerland (i) in order
to enable it to enforce its rights, or exercise any power, duty or obligation
conferred or imposed on it, under the Guarantee (including, without limitation,
its right to bring a claim or a proceeding on behalf of the Holders (as defined
in the Guarantee) in a court of competent jurisdiction in Switzerland to enforce
the obligations of the Guarantor thereunder) or (ii) by reason of the execution
of the Guarantee by the Guarantee Trustee or of the performance by the Guarantee
Trustee of its obligations thereunder.
12. To our knowledge, there is no pending or threatened action, suit or
proceeding before any Swiss canton or federal, or any other (whether or not in
Switzerland) court or governmental agency, authority or body involving the UBS
Entities or any of their subsidiaries of a character required to be disclosed in
the Prospectus (including any material incorporated therein), that is not
adequately disclosed as required.
A-2
EXHIBIT B
FORM OF OPINION OF SULLIVAN & CROMWELL LLP
1. The Guarantee and the Trust Agreement have each been qualified under
the Trust Indenture Act.
2. None of the UBS Entities is, or after giving effect to the offering and
sale of the Securities and the application of the net proceeds therefrom as
described in the Prospectus will be, required to be registered as an "investment
company" under the Investment Company Act.
3. No consent, approval, authorization or order of any court or
governmental agency or body of the federal government of the United States or
the State of New York is required for the issuance and sale of the Securities by
the UBS Entities and the compliance by the UBS Entities with the provisions of
each of the Transaction Documents to which they are party have been obtained or
made except as have been obtained.
4. The statements in the Prospectus under the captions "The UBS Preferred
Funding Trusts", "The UBS Preferred Funding Companies", "Description of Trust
Preferred Securities", "Description of Company Preferred Securities",
"Description of UBS AG Subordinated Guarantees" and "Description of Subordinated
Notes of UBS AG" and the statements in the Prospectus Supplement under the
captions "Summary", "Supplemental Information Regarding UBS Preferred Funding
Trust ___ ", "Supplemental Information Regarding UBS Preferred Funding Company
LLC ___ ", "Description of Trust Preferred Securities", "Description of Company
Preferred Securities", and "Description of Subordinated Notes of UBS AG",
insofar as such statements purport to constitute a summary of the terms of any
of the Transaction Documents, constitute accurate summaries thereof in all
material respects.
5. We hereby confirm, subject to the qualifications set forth herein, the
statements in the Prospectus under the caption "U.S. Tax Considerations" are an
accurate summary of the U.S. federal income tax matters described therein.
6. The Registration Statement and the Prospectus (including all material
incorporated by reference therein but other than the reports of experts
pertaining to the financial statements and the financial statements and other
financial and statistical information contained therein, as to which we express
no opinion), comply as to form in all material respects with the applicable
requirements of the Act and the Trust Indenture Act.
7. The consummation of the transactions contemplated in the Transaction
Documents and the compliance with the terms thereof do not and will not violate
any existing applicable New York or federal law, rule or regulation; provided,
however, that, for purposes of this paragraph, we express no opinion with
respect to Federal or state
B-1
securities laws, other antifraud laws and fraudulent transfer laws; provided,
further, that insofar as performance by the UBS Entities of their obligations
under each of the Transaction Documents is concerned, we express no opinion as
to bankruptcy, insolvency, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditor's rights and relating to
general equitable principles.
8. To our knowledge, there is no pending or threatened action, suit or
proceeding before any New York or U.S. federal court or governmental agency,
authority or body involving the UBS Entities or any of their subsidiaries of a
character required to be disclosed in the Prospectus that is not adequately
disclosed as required.
9. Assuming due authorization, execution and delivery by each of the
parties thereto, the Underwriting Agreement, the Trust Agreement, the
Subordinated Notes Purchase Agreement and the Administration Agreement
constitute valid and binding agreements of the Company, enforceable against the
Company in accordance with their terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
principles.
10. Assuming due authorization, execution and delivery by each of the
parties thereto, the Underwriting Agreement, the LLC Agreement and the Trust
Agreement constitute valid and binding agreements of the Trust, enforceable
against the Trust in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights and to general
equity principles.
11. Assuming due authorization, execution and delivery by each of the
parties thereto, the Guarantee constitutes a valid and legally binding
obligation of the Guarantor, enforceable against the Guarantor in accordance
with its terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to
or affecting creditors' rights and to general equity principles.
12. Each part of the Registration Statement, when such part became
effective, and the Basic Prospectus, as supplemented by the Prospectus
Supplement, as of the date of the Prospectus Supplement, appeared on their face
to be appropriately responsive, in all material respects relevant to the
offering of the Securities, to the requirements of the Securities Act, the Trust
Indenture Act of 1939 and the applicable rules and regulations of the Commission
thereunder. Further, nothing that came to our attention in the course of such
review has caused us to believe that, insofar as relevant to the offering of the
Securities,
(a) any part of the Registration Statement, when such part became
effective, contained any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, or
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(b) the Disclosure Package, as of [__:00] [A/P].M. (New York City time) on
______, __, 2006 (which you have informed us is prior to the time of the first
sale of the Securities by any Underwriter) contained any untrue statement of a
material fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, or
(c) the Basic Prospectus, as supplemented by the Prospectus Supplement, as
of the date of the Prospectus Supplement, contained any untrue statement of a
material fact or omitted to state any material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading.
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EXHIBIT C
FORM OF OPINION OF DELAWARE COUNSEL TO THE UBS ENTITIES
1. The Company has been duly formed and is validly existing in good
standing as a limited liability company under the Delaware LLC Act.
2. Under the LLC Agreement and the Delaware LLC Act, the Company has all
necessary limited liability company power and authority to conduct its business
as described in the Prospectus, to execute and deliver the Underwriting
Agreement, the Trust Agreement and the Administration Agreement, and to perform
its obligations under each such agreement.
3. The Company Preferred Securities issued to the Trust have been duly
authorized and validly issued and, subject to the qualifications set forth in
the following paragraph, are fully paid and nonassessable limited liability
company interests in the Company.
4. The Trust, as a member of the Company, shall not be obligated
personally for any of the debts, obligations or liabilities of the Company,
whether arising in contract, tort or otherwise solely by reason of being a
member of the Company, except as the Trust may be obligated to make payments
provided for in the LLC Agreement and to repay any funds wrongfully distributed
to it.
5. The provisions of the LLC Agreement, including the terms of the Company
Preferred Securities, are permitted under the Delaware LLC Act.
6. The LLC Agreement constitutes a legal, valid and binding agreement of
the Guarantor and the Trust, and is enforceable against the Guarantor and the
Trust in accordance with its terms.
7. Under the LLC Agreement and the Delaware LLC Act, the Company has taken
all necessary limited liability company action to authorize the execution and
delivery by the Company of each of the Transaction Documents to which it is a
party and the Company Preferred Securities, and to perform its obligations
thereunder.
8. The issue and sale by the Company of the Company Preferred Securities
to the Trust pursuant to the LLC Agreement and the Underwriting Agreement, and
the performance by the Company of its obligations under each of the Transaction
Documents to which it is a party, will not violate (i) any Delaware statute,
rule or regulation, or (ii) the Certificate of Formation of the Company or the
LLC Agreement.
9. No consent, approval, authorization, order, registration, filing or
qualification of or with any Delaware court or Delaware governmental agency or
body is required solely in connection with (i) the issuance and sale by the
Company of the Company Preferred Securities to the Trust as contemplated by the
Prospectus, or (ii) the
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execution, delivery and performance by the Company of any of the Transaction
Documents to which it is a party.
10. Under the LLC Agreement and the Delaware LLC Act, the issuance by the
Company of the Company Preferred Securities is not subject to any preemptive
purchase rights of any person.
11. The Trust has been duly created and is validly existing in good
standing as a business trust under the Delaware Trust Act.
12. Under the Trust Agreement and the Delaware Trust Act, the Trust has
all necessary trust power and authority to conduct its business as described in
the Prospectus, to execute and deliver each of the Transaction Documents to
which it is a party, and to perform its obligations under each such agreement.
13. The provisions of the Trust Agreement, including the terms of the
Trust Preferred Securities, are permitted under the Delaware Trust Act.
14. The Trust Agreement constitutes a legal, valid and binding agreement
of the Company and the Trustee and is enforceable against the Company and the
Trustee in accordance with its terms.
15. The Trust Preferred Securities are duly authorized by the Trust
Agreement and when authenticated, issued and delivered in accordance with the
Trust Agreement, the Trust Preferred Securities will be duly and validly issued
and, subject to the qualifications set forth in the following paragraph, fully
paid and nonassessable undivided beneficial interests in the assets of the
Trust.
16. The holders of Trust Preferred Securities, in their capacity as such,
will be entitled to the same limitation of personal liability extended to
stockholders of private corporations for profit organized under the General
Corporation Law of the State of Delaware. We note that the holders may be
obligated to make payments as set forth in the Trust Agreement.
17. Under the Trust Agreement and the Delaware Trust Act, the execution
and delivery by the Trust of each of the Transaction Documents to which it is a
party, and the performance by the Trust of its obligations thereunder, have been
duly authorized by all necessary trust action on the part of the Trust.
18. No consent, approval, authorization, order, registration or
qualification of or with any Delaware court or Delaware governmental agency or
Delaware body is required solely in connection with (i) the issuance and sale by
the Trust of the Trust Preferred Securities to the holders as contemplated by
the Prospectus, and (ii) the execution, delivery and performance by the Trust of
each of the Transaction Documents to which it is a party.
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19. Under the Delaware Trust Act and the Trust Agreement, the issuance of
the Trust Preferred Securities is not subject to any preemptive purchase rights
of any person.
20. The issue and sale by the Trust of the Trust Preferred Securities
pursuant to the Trust Agreement and the Underwriting Agreement, and the
performance by the Trust of its obligations under each of the Transaction
Documents to which it is a party, will not violate (i) any Delaware statute,
rule or registration, or (ii) the Certificate of Trust or the Trust Agreement.
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EXHIBIT D
FORM OF OPINION OF COUNSEL TO THE TRUSTEES
1. Wilmington Trust Company is a banking corporation validly existing
under the laws of the State of Delaware.
2. The Guarantee Trustee has the requisite power and authority to execute,
deliver and perform its obligations under the Guarantee and has taken all
necessary action to authorize the execution, delivery and performance of the
Guarantee.
3. The Trustee has the requisite power and authority to execute and
deliver the Trust Agreement and the Guarantee Trustee has the requisite power
and authority to execute and deliver the LLC Agreement, and each has taken all
necessary action to authorize the execution and delivery of the Trust Agreement
and the LLC Agreement, as the case may be.
4. Each Transaction Document to which either of the Trustees is a party
has been duly executed and delivered by the appropriate one of the Trustees.
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