Exhibit 1.1
INTERNATIONAL PAPER
COMPANY
$1,000,000,000 9.375% Notes Due
2019
UNDERWRITING
AGREEMENT
May 4, 2009
Banc of America Securities
LLC
BNP Paribas Securities Corp.
Citigroup Global Markets Inc.
J.P. Morgan Securities Inc.
RBS Securities Inc.
UBS Securities LLC
c/o Citigroup Global Markets
Inc.
388 Greenwich Street
New York, New York 10013
and
c/o UBS Securities LLC
677 Washington Blvd.
Stamford, Connecticut 06901
as Representatives for the
Underwriters
named in Schedule A
Ladies and Gentlemen:
1. International Paper Company, a
corporation duly organized and existing under the laws of the State
of New York (the “ Company ”), proposes, on the
terms stated herein (this “ Agreement ”), to
issue and sell to the underwriters named in Schedule A
hereto (the “ Underwriters ”), for whom you (the
“ Representatives ”) are acting as
representatives, $1,000,000,000 principal amount of its 9.375%
Notes due 2019 (the “ Notes ” or the “
Offered Securities ”). The Offered Securities will be
issued under an indenture, dated as of April 12, 1999 (the
“ Indenture ”), between the Company and The Bank
of New York, as Trustee (the “ Trustee ”), as
supplemented by a Supplemental Indenture thereto, to be dated as of
the Closing Date (as defined herein) (the “ Supplemental
Indenture ”), between the Company and the
Trustee.
To the extent there are no
additional Underwriters listed on Schedule A other than you,
the term “ Representatives ” as used herein
shall mean you, as Underwriters, and the terms “
Representatives ” and “ Underwriters
” shall mean either the singular or plural as the
context
requires. Any reference herein to the
Registration Statement, the Basic Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Exchange Act on
or before the Effective Date of the Registration Statement or the
issue date of the Basic Prospectus, any Preliminary Prospectus or
the Final Prospectus, as the case may be; and any reference herein
to the terms “amend,” “amended,”
“amendment” or “supplement” with respect to
the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus or the Final Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act after the
Effective Date of the Registration Statement or the issue date of
the Basic Prospectus, any Preliminary Prospectus or the Final
Prospectus, as the case may be, deemed to be incorporated therein
by reference. Certain terms used herein are defined in
Section 18 hereof.
The Company is advised by the
Representatives that the Underwriters propose to make a public
offering of their respective portions of the Offered Securities as
soon after this Agreement is entered into as in the
Representatives’ judgment is advisable. The terms of the
public offering of the Offered Securities are set forth in the Time
of Sale Information (as defined below).
As of 3:02 p.m., May 4, 2009
(the “ Time of Sale ”), the Company had prepared
the following information (collectively the “ Time of Sale
Information ”): the Preliminary Prospectus dated
May 4, 2009 and each “free-writing prospectus” (as
defined pursuant to Rule 405 under the Securities Act) listed on
Schedule B hereto, including a final pricing term sheet in
the form attached hereto as Annex I (the “ Pricing Term
Sheet ”).
The Company hereby agrees with the
Underwriters as follows:
2. Representations and Warranties
of the Company . The Company represents and warrants to, and
agrees with, the Underwriters that:
(a) The Company meets the
requirements for use of Form S-3 under the Securities Act and has
prepared and filed with the Commission a Registration Statement
(File No. 333-157573) on Form S-3 ASR, including a related
Basic Prospectus, for registration under the Securities Act of
securities issued from time to time by the Company, including the
Offered Securities. Such Registration Statement became effective
upon filing with the Commission. The Company may have filed one or
more amendments thereto, including a Preliminary Prospectus with
respect to the Offered Securities, each of which has previously
been furnished to you. The Company will next file with the
Commission a Final Prospectus relating to the Offered Securities in
accordance with Rules 415 and 424(b). The Registration Statement,
at the Execution Time, meets the requirements set forth in Rule
415(a)(1)(x).
(b) On each Effective Date, the
Registration Statement did, and when the Final Prospectus is first
filed in accordance with Rule 424(b) and on the Closing Date (as
defined herein), the Registration Statement and the Final
Prospectus (and any supplement thereto) will, comply in all
material respects with the applicable requirements of the
Securities
-2-
Act, the Exchange Act and the Trust
Indenture Act and the respective rules thereunder; on each
Effective Date and at the Execution Time, the Registration
Statement did not or will not contain any untrue statement of a
material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein
not misleading; on each Effective Date and on the Closing Date, the
Indenture did or will comply in all material respects with the
applicable requirements of the Trust Indenture Act and the rules
thereunder; and, as of its date, the Final Prospectus will not, and
on the date of any filing pursuant to Rule 424(b) and on the
Closing Date, the Final Prospectus (together with any supplement
thereto) will not, include any 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 Company makes no representations or warranties as to
(i) that part of the Registration Statement which shall
constitute the Statement of Eligibility and Qualification (Form
T-1) under the Trust Indenture Act of the Trustee or (ii) the
information contained in or omitted from the Registration Statement
or the Final Prospectus (or any supplement thereto) in reliance
upon and in conformity with information furnished in writing to the
Company by or on behalf of any Underwriter through the
Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement
thereto).
(c) The Registration
Statement is an “automatic shelf registration
statement” as defined under Rule 405 of the Securities Act
that has been filed with the Commission not earlier than three
years prior to the date hereof; and no notice of objection of the
Commission to the use of such registration statement or any
post-effective amendment thereto pursuant to Rule 401(g)(2) under
the Securities Act has been received by the Company. No order
suspending the effectiveness of the Registration Statement has been
issued by the Commission and no proceeding for that purpose or
pursuant to Section 8A of the Securities Act against the
Company or related to the offering of the Offered Securities has
been initiated or threatened by the Commission. At the time of
filing of the Registration Statement and at the time of the most
recent amendment . thereto for the purposes of
complying with Section 10(a)(3) of the Securities Act (whether
such amendment was by post-effective amendment, incorporated report
filed pursuant to Section 13 or 15(d) of the Exchange Act or
form of prospectus), the Company was a “well-known seasoned
issuer” as defined in Rule 405 under the Securities Act. At
the earliest time after the filing of the Registration Statement
that the Company or another offering participant made a bona fide
offer (within the meaning of Rule 164(h)(2) under the Securities
Act) of the Offered Securities, the Company was not an
“ineligible issuer” as defined in Rule 405 under the
Securities Act.
(d) The Time of Sale Information, at
the Time of Sale did not, and at the Closing Date will not, contain
any 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 that the Company makes no
representation and warranty with respect to any statements or
omissions made in reliance upon and in conformity with information
furnished to the Company in writing by
-3-
any Underwriter through the
Representatives expressly for use in such Time of Sale
Information.
(e) Each Permitted Free Writing
Prospectus complied in all material respects with the Securities
Act, has been or will be (within the time period specified in Rule
433 of the Securities Act) filed in accordance with the Securities
Act (to the extent required thereby) and, when taken together with
the Preliminary Prospectus, did not, and at the Closing Date will
not, contain any 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 that the Company makes no
representation and warranty with respect to any statements or
omissions made in each such Permitted Free Writing Prospectus in
reliance upon and in conformity with information furnished to the
Company in writing by any Underwriter through the Representatives
expressly for use in any Permitted Free Writing
Prospectus.
(f) The documents incorporated by
reference in the Registration Statement, the Final Prospectus and
the Time of Sale Information, when they became effective or were
filed with the Commission, as the case may be, conformed in all
material respects to the requirements of the Securities Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents contained an
untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make
the statements therein in light of the circumstances under which
they were made not misleading; and any further documents so filed
and incorporated by reference in the Registration Statement, the
Final Prospectus and the Time of Sale Information or any further
amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be,
will conform in all material respects to the requirements of the
Securities Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder and will not contain
an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading.
(g) The historical financial
statements filed as part of or incorporated by reference in the
Registration Statement, Final Prospectus or the Time of Sale
Information present, or (in the case of any amendment or supplement
to any such document, or any material incorporated by reference in
any such document, filed with the Commission after the date as of
which this representation is being made) will present fairly, at
all times during the period specified in Section 6(d) hereof,
the financial condition, results of operations and cash flows of
the entities purported to be shown thereby, at the dates and for
the periods indicated, comply or will comply, as applicable, in all
material respects with the applicable requirements of the
Securities Act and the Exchange Act, as applicable, and have been,
and (in the case of any amendment or supplement to any such
document, or any material incorporated by reference in any such
document, filed with the Commission after the date as of which this
representation is being made) will be at all times during the
period specified in Section 6(d) hereof, prepared in
conformity with generally accepted accounting principles in the
U.S. applied on a consistent basis throughout the
periods
-4-
covered thereby, subject in the case
of unaudited financial statements, to normal year-end audit
adjustments and the absence of full footnote disclosure; the
supporting schedules included or incorporated by reference in the
Registration Statement present fairly the information required to
be stated therein; the other financial information included or
incorporated by reference in the Registration Statement, the Time
of Sale Information and the Prospectus has been derived from the
accounting records of the Company and its subsidiaries and presents
fairly the information shown thereby; and the pro forma
financial information and the related notes thereto included or
incorporated by reference in the Registration Statement, the Time
of Sale Information and the Final Prospectus have been prepared in
accordance with the applicable requirements of the Securities Act
and the Exchange Act, as applicable, and the material assumptions
underlying such pro forma financial information are
reasonable and are set forth in the Registration Statement, the
Time of Sale Information and the Final Prospectus.
(h) There are no contracts or other
documents which are required to be filed as exhibits to the
Registration Statement by the Securities Act or by the rules and
regulations thereunder, or which were required to be filed as
exhibits to any document incorporated by reference in the Final
Prospectus or the Time of Sale Information by the Exchange Act or
the rules and regulations thereunder, which have not been filed as
exhibits to the Registration Statement or to such document
incorporated therein by reference as permitted by such rules and
regulations.
(i) Neither the Company nor any of
its subsidiaries is in violation of its corporate charter or
by-laws or in default under any agreement, indenture, mortgage,
lease, note or instrument, which violation or default would have a
material adverse effect on the assets, operations or condition
(financial and otherwise) of the Company and its subsidiaries taken
as a whole (a “ Material Adverse Effect ”); the
execution, delivery and performance of this Agreement, the Offered
Securities, the Indenture and the Supplemental Indenture
(collectively, the “ Transaction Documents ”),
the issuance and sale of the Offered Securities and compliance by
the Company with the provisions of the Transaction Documents will
not (1) (i) conflict with, result in the creation or
imposition of any lien, charge or encumbrance upon any of the
assets of the Company or any of its subsidiaries pursuant to the
terms of, or constitute a default under, any agreement, indenture
or instrument which could reasonably be expected to have a Material
Adverse Effect, (ii) result in a violation of the charter or
by-laws of the Company or any of its subsidiaries or
(iii) result in a violation of any order, rule, statute or
regulation of any court or governmental agency or body having
jurisdiction over the Company, any of its subsidiaries or their
respective properties which could reasonably be expected to have a
Material Adverse Effect or (2) have a Material Adverse Effect;
and except as required by the Securities Act, the Trust Indenture
Act, the Exchange Act and applicable state securities or Blue Sky
laws, no consent, authorization or order of, or filing or
registration with, any court or governmental agency is required for
the execution, delivery and performance by the Company of any of
the Transaction Documents.
-5-
(j) Except as described in or
contemplated by the Final Prospectus, the Registration Statement
and the Time of Sale Information, since the dates as of which
information is given in the Final Prospectus or in the Time of Sale
Information, respectively, nothing has occurred which would result
in a Material Adverse Effect.
(k) This Agreement has been duly
authorized, executed and delivered by the Company and constitutes a
legally binding obligation of the Company.
(l) Deloitte & Touche LLP,
whose reports are incorporated by reference in the Final
Prospectus, the Registration Statement and the Time of Sale
Information, was, upon the date of such reports, an independent
public accounting firm within the applicable rules and regulations
adopted by the Commission and the Public Company Accounting
Oversight Board (United States) and as required by the Securities
Act and the applicable rules and regulations thereunder.
(m) (i) The Indenture has been
validly authorized, executed and delivered by the Company, and the
Supplemental Indenture has been duly authorized and will be, as of
the Closing Date, duly executed and delivered by the Company; the
Indenture constitutes, and on the Closing Date, the Supplemental
Indenture will constitute a legally binding obligation of the
Company enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, and other
laws of general applicability relating to or affecting
creditors’ rights and to general equity principles;
(ii) the Offered Securities have been validly authorized and,
upon delivery and payment therefor on the Closing Date as provided
in this Agreement, will be validly issued and outstanding, and will
constitute legally binding obligations of the Company entitled to
the benefits of the Indenture and the Supplemental Indenture; and
(iii) on the Closing Date, the Offered Securities, the
Indenture and the Supplemental Indenture will conform to the
descriptions thereof contained in the Final Prospectus, the
Registration Statement and in the Time of Sale
Information.
(n) The Company and its Significant
Subsidiary have been duly organized under the laws of their
respective jurisdictions of organization, are under the laws of
their respective jurisdictions of organization, validly existing
and in good standing, are duly qualified to do business and in good
standing as foreign organizations in each jurisdiction in which
their respective ownership of property or the conduct of their
respective business requires such qualification and where the
failure to be so qualified would have a Material Adverse Effect,
and have the power and authority necessary to own or hold their
respective properties, to conduct the businesses in which they are
engaged. The Company has the power and authority necessary to
authorize, issue, sell and deliver the Offered Securities as
contemplated by this Agreement.
(o) Except as disclosed in the Final
Prospectus and the Time of Sale Information, there are no
contracts, agreements or understandings between the Company and any
person that would give rise to a valid claim against the Company or
any Underwriter for a
-6-
brokerage commission, finder’s
fee or other like payment in connection with sales to the
Underwriters by the Company of the Offered Securities.
(p) No consent, approval,
authorization or order of, or filing with, any governmental agency
or body or any court is required for the consummation of the
transactions contemplated by the Transaction Documents in
connection with the issuance and sale of the Offered Securities by
the Company except such as have been obtained and made under the
Securities Act and the Trust Indenture Act and such as may be
required under state securities laws.
(q) Except as disclosed in the Final
Prospectus and the Time of Sale Information, the Company and its
subsidiaries have good and marketable title to all real properties
and all other properties and assets owned by them, except where the
failure to have such good and marketable title could not reasonably
be expected to, individually or in the aggregate, have a Material
Adverse Effect; and except as disclosed in the Final Prospectus,
the Registration Statement and the Time of Sale Information, the
Company and its subsidiaries hold any leased real or personal
property under valid and enforceable leases with no exceptions that
could reasonably be expected to, individually or in the aggregate,
have a Material Adverse Effect.
(r) The Company and its subsidiaries
possess adequate certificates, authorities or permits issued by
appropriate governmental agencies or bodies necessary to conduct
the business now operated by them and have not received any notice
of proceedings relating to the revocation or modification of any
such certificate, authority or permit that, if determined adversely
to the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect.
(s) The Company and its Significant
Subsidiaries own, possess, have the right to use or can acquire on
reasonable terms, adequate trademarks, trade names and other rights
to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively, “
intellectual property rights ”) necessary to conduct
the business now operated by them, or presently employed by them,
and have not received any notice of infringement of or conflict
with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any
of its subsidiaries, would individually or in the aggregate have a
Material Adverse Effect.
(t) No labor dispute with the
employees of the Company or any subsidiary exists or, to the
knowledge of the Company, is imminent that might have a Material
Adverse Effect.
(u) Except as disclosed in the Final
Prospectus, the Registration Statement and the Time of Sale
Information, neither the Company nor any of its subsidiaries is in
violation of any statute, any rule, regulation, decision or order
of any governmental agency or body or any court, domestic or
foreign, relating to the use, disposal or release of hazardous or
toxic substances or relating to the protection or restoration of
the environment
-7-
or human exposure to hazardous or
toxic substances (collectively, “ environmental laws
”), owns or operates any real property contaminated with any
substance that is subject to any environmental laws, is liable for
any off-site disposal or contamination pursuant to any
environmental laws, or is subject to any claim relating to any
environmental laws, which violation, contamination, liability or
claim would individually or in the aggregate have a Material
Adverse Effect; and the Company has not received notice of any
pending investigation which might lead to such a claim.
(v) Except as described in the Final
Prospectus, the Registration Statement and the Time of Sale
Information, there is no material litigation or governmental
proceeding pending or, to the knowledge of the Company, threatened
against or affecting the Company or any of its subsidiaries that
could be reasonably expected to result in a Material Adverse
Effect.
(w) The Company is not and, after
giving effect to the offering and sale of the Offered Securities
and the application of the proceeds thereof as described in the
Final Prospectus, the Registration Statement and the Time of Sale
Information, will not be, an “investment company” as
defined in the Investment Company Act of 1940, as amended (the
“ Investment Company Act ”).
(x) The Company has not entered and
will not enter into any contractual arrangement with respect to the
distribution of the Offered Securities except for this
Agreement.
(y) All outstanding shares of
capital stock of the Company have been duly authorized, and are
validly issued, fully paid and nonassessable. The Company does not
have outstanding, and at the Closing Date the Company will not have
outstanding, any options to purchase, or any rights or warrants to
subscribe for, or any securities or obligations convertible into,
or any contracts or commitments to issue or sell, (i) any
Offered Securities, or (ii) any shares of capital stock held
by it in any subsidiary, or any such warrants, convertible
securities or obligations (except shares issued or issuable
pursuant to employee or director benefit plans), except in each
case as described in the Final Prospectus, the Registration
Statement and the Time of Sale Information.
(z) The Company and its affiliates
have not taken and will not take, directly or indirectly, any
action designed to cause, or result in, or which has constituted or
which might reasonably be expected to constitute, the stabilization
or manipulation of the price of the Offered Securities.
(aa) The Company and its
consolidated subsidiaries maintain an effective system of
“disclosure controls and procedures” (as defined in
Rule 13a-15(e) of the Exchange Act).
(bb) The Company and its
consolidated subsidiaries maintain a process of “internal
control over financial reporting” (as defined in Rule
13a-15(f) of the Exchange
-8-
Act) that comply with the
requirements of the Exchange Act in all material respects. Except
as described in the Time of Sale Information and the Final
Prospectus, since the end of the Company’s most recent
audited fiscal year, there has been no material weakness identified
by management, or by the Company’s auditors and communicated
to management, in the Company’s internal control over
financial reporting.
(cc) The operations of the Company
and its subsidiaries are and have been conducted at all times in
compliance in all material respects with applicable financial
recordkeeping and reporting requirements of the Currency and
Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental
agency (collectively, the “ Money Laundering Laws
”) and no action, suit or proceeding by or before any court
or governmental agency, authority or body or any arbitrator
involving the Company or any of its subsidiaries with respect to
the Money Laundering Laws is pending or, to the best knowledge of
the Company, threatened.
(dd) None of the Company, any of its
subsidiaries or, to the knowledge of the Company, any director,
officer or employee of the Company or any of its subsidiaries is
currently subject to any U.S. sanctions administered by the Office
of Foreign Assets Control of the U.S. Department of the Treasury
(“ OFAC ”); and the Company will not directly or
indirectly use the proceeds of the offering of the Offered
Securities hereunder, or lend, contribute or otherwise make
available such proceeds to any subsidiary, joint venture partner or
other person or entity, for the purpose of financing the activities
of any person currently subject to any U.S. sanctions administered
by OFAC.
Any certificate signed by any
officer of the Company and delivered to the Representatives or
counsel for the Underwriters in connection with the offering of the
Offered Securities shall be deemed a representation and warranty by
the Company, as to matters covered thereby, to each
Underwriter.
3. Purchase, Sale and Delivery of
Offered Securities . The Company agrees to sell to the
Underwriters, and on the basis of the representations, warranties
and agreements herein contained, but subject to the terms and
conditions herein set forth, each of the Underwriters agrees,
severally and not jointly, to purchase from the Company, at a
purchase price of 96.984% of the principal amount of the Offered
Securities, plus accrued interest from May 11, 2009 to the
Closing Date in the respective principal amounts of the Offered
Securities set forth opposite the names of the Underwriters in
Schedule A hereto.
The Company will deliver against
payment of the purchase price the Offered Securities in the form of
permanent global securities in definitive form (the “
Global Securities ”) deposited with the Trustee as
custodian for The Depository Trust Company (“ DTC
”) and registered in the name of Cede & Co., as
nominee for DTC. Interests in any permanent Global Securities will
be held only in book-entry form through DTC, except in the limited
circumstances described in the Final Prospectus, the Registration
Statement and the Time of Sale Information.
-9-
Payment for the Offered Securities
shall be made by the Underwriters in federal (same day) funds by
wire transfer to an account previously designated by the Company
for such purpose at a bank reasonably acceptable to the
Representatives at 10:30 A.M. (New York City time), on May 11,
2009, such time being herein referred to as the “ Closing
Date ,” against delivery to the Trustee as custodian for
DTC of the Global Securities representing all of the Offered
Securities. The Global Securities will be made available for
checking at the offices of Cahill Gordon & Reindel
LLP not later than 2:00 p.m., New York City time, on
the Business Day prior to the Closing Date.
The Company acknowledges and agrees
that the Underwriters are acting solely in the capacity of an
arm’s length contractual counterparty to the Company with
respect to the offering of the Offered Securities (including in
connection with determining the terms of such offering) and not as
a financial advisor or a fiduciary to, or an agent of, the Company
or any other person. Additionally, neither the Representatives nor
any other Underwriter is advising the Company or any other person
as to any legal, tax, investment, accounting or regulatory matters
in any jurisdiction. The Company shall consult with its own
advisors concerning such matters and shall be responsible for
making its own independent investigation and appraisal of the
transactions contemplated hereby, and the Underwriters shall have
no responsibility or liability to the Company with respect thereto.
Any review by the Underwriters of the Company, the transactions
contemplated hereby or other matters relating to such transactions
will be performed solely for the benefit of the Underwriters and
shall not be on behalf of the Company.
4. Representations and Warranties
of the Underwriters.
(a) Each Underwriter severally
represents, warrants and agrees that it is not subject to any
pending proceeding under Section 8A of the Securities Act with
respect to the offering of the Offered Securities (and will
promptly notify the Company if any such proceeding against it is
initiated during the period specified in
Section 6(d)).
(b) Each Underwriter severally
represents, warrants and agrees that: in relation to each Member
State of the European Economic Area which has implemented the
Prospectus Directive (each, a “Relevant Member State”),
it has not made and will not make an offer of the Offered
Securities to the public in that Relevant Member State, except that
it may make an offer of Offered Securities to the public in that
Relevant Member State at any time under the following exemptions
under the Prospectus Directive (as defined below), if they have
been implemented in that Relevant Member State: (i) 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; (ii) to
any legal entity which has two or more of the following:
(1) an average of at least 250 employees during the last
financial year, (2) a total balance sheet of more than
€43,000,000 and (3) an annual net turnover of more than
€50,000,000, as shown in its last annual or consolidated
accounts; (iii) to fewer than 100 natural or legal persons
(other than qualified investors as defined in the Prospectus
Directive) subject to obtaining the prior consent of the
Representatives for any such offer; or (iv) in any other
circumstances falling within Article 3(2) of the Prospectus
Directive, provided that no such offer of Offered
-10-
Securities to the public
