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_______________ Shares
PEPS TRUST-AJL
PREMIUM PARTICIPATING EXCHANGEABLE SHARES
INTERNATIONAL DEALER AGREEMENT
November __, 1995
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XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
XXXXXXX XXXXX INTERNATIONAL LIMITED
c/o MORGAN XXXXXXX &CO. INTERNATIONAL LIMITED
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs:
We understand that PEPS Trust-AJL, a trust created under the
laws of the State of New York (the "Trust"), proposes to issue and sell to the
several Underwriters (as defined below) an aggregate of [400,000] shares (the
"Firm Shares") of its Premium Exchangeable Preferred Shares ("PEPS") pursuant to
an underwriting agreement (the "Underwriting Agreement") with you as
representatives (the "International Representatives") of the international
underwriters named in Schedule II thereto (the "International Underwriters"),
and with Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated as representatives (the "U.S. Representatives") of the U.S.
underwriters named in Schedule I thereto (the "U.S. Underwriters"). The Firm
PEPS Shares to be sold to the several U.S. Underwriters and to the several
International Underwriters shall hereinafter be referred to, respectively, as
the "U.S. Firm PEPS Shares" and the "International PEPS Shares." The
International Underwriters and the U.S. Underwriters are hereinafter
collectively referred to as the "Underwriters."
In addition, the several U.S. Underwriters will have an option
to purchase from the Trust an additional [60,000] shares (the "Additional
Shares") to provide for over-allotments. The term "U.S. PEPS Shares" shall mean
the U.S. Firm PEPS Shares and the Additional PEPS Shares. The U.S. PEPS Shares
and the International PEPS Shares are hereinafter collectively referred to as
the "PEPS Shares."
Each PEPS Share will be exchanged for American Depository
Shares ("ADSs") or, at the option of the holder thereof, Common Stock ("Common
Stock") of Amway Japan Limited, a Japanese corporation (the "Company"), on
November __, 1998 to be delivered pursuant to purchase contracts
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between the Trust and each of HDV GRIT Holdings, Inc., a ________ corporation,
and the Xxx Xxx Xxxxx Trust, a trust created under the laws of the State of
_________ (collectively, the "Sellers").
We acknowledge receipt of the Prospectus dated November __,
1995 relating to the offering of the International PEPS Shares including the
Prospectus dated November __, 1995 relating to the ADSs (hereinafter such
prospectuses are called the "International Prospectus").
We understand that the International Underwriters are
severally offering, through you, certain of the PEPS Shares for sale to certain
dealers at the offering price of U.S. $_____ less a concession not in excess of
U.S. $_____ under the offering price, and that any International Underwriter may
allow, and dealers may reallow, a concession not in excess of U.S. $_____ under
the offering price to other International Underwriters or to other dealers who
enter into an agreement in this form.
We hereby agree with you as follows with respect to any
purchase of PEPS Shares from you or from any other International Underwriter or
from any dealer at a concession from the offering price.
In purchasing PEPS Shares, we will rely only on the
International Prospectus and on no other statements whatsoever, written or oral.
I.
We understand that no action has been or will be taken in any
jurisdiction by the International Underwriters, the Trust or the Company that
would permit a public offering of the PEPS Shares, or possession or distribution
of the International Prospectus, in preliminary or final form, in any
jurisdiction where, or in any circumstances in which, action for that purpose is
required, other than the United States. We agree that we will comply with all
applicable laws and regulations, and make all necessary filings and obtain all
necessary consents or approvals, in each jurisdiction in which we purchase,
offer, sell or deliver PEPS Shares (including, without limitation, any
applicable requirements relating to the delivery of the International
Prospectus, in preliminary or final form), in each case at our own expense. In
connection with sales of and offers to sell PEPS Shares made by us we will
either furnish to each person to whom any such sale or offer is made a copy of
the
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then-current International Prospectus (in preliminary or final form and as then
amended or supplemented if the Trust or the Company shall have furnished any
amendments or supplements thereto), or inform such person that such
International Prospectus will be made available upon request and we will keep an
accurate record of the names and addresses of all persons to whom we give copies
of the registration statements relating to the Prospectus (collectively, the
"Registration Statement"), the International Prospectus, in preliminary or final
form, or any amendment or supplement thereto, and, when finished with any
subsequent amendment to such Registration Statement, any subsequent prospectus
or any medium outlining changes in the Registration Statement or any prospectus,
we will upon request of the International Representatives, promptly forward
copies thereof to such persons.
We will not give any information or make any representation
other than as contained in the International Prospectus, or act for the Trust,
any International Underwriter or you.
We represent and agree that, except for (x) sales between the
U.S. Underwriters and the International Underwriters pursuant to Article I of
the Agreement Between U.S. and International Underwriters of even date herewith
(hereinafter called the "Agreement Between U.S. and International Underwriters")
and (y) stabilization transactions contemplated in Article IV of the Agreement
Between U.S. and International Underwriters conducted through the U.S.
Representatives as part of the distribution of the Shares, (a) we are not
purchasing and have not purchased and will not purchase any of the PEPS Shares
for the account of any United States or Canadian Person and (b) we have not
offered or sold, and will not offer or sell, directly or indirectly, any of the
PEPS Shares or distribute any prospectus relating to the PEPS Shares, in the
United States or Canada or to any United States or Canadian Person and any
dealer to whom we may sell any of the PEPS Shares will represent that it is not
purchasing any of the PEPS Shares for the account of any United States or
Canadian Person and will agree that it will not offer or resell such PEPS Shares
directly or indirectly in the United States or Canada or to any United States or
Canadian Person or to any other dealer who does not so represent and agree.
"United States or Canadian Person" shall mean any national or resident of the
United States or Canada, or any corporation, pension, profit-sharing or other
trust or other entity organized under the laws of the United States or Canada or
of any political subdivision thereof (other than a branch located outside the
United States and Canada of any United
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States or Canadian Person), and shall include any United States or Canadian
branch of a person who is otherwise not a United States or Canadian Person.
"United States" shall mean the United States of America, its territories, its
possessions and all areas subject to its jurisdiction. Our agreement set forth
in this paragraph shall terminate upon the earlier of (a) notice from you to
such effect and (b) 30 days after the date of the initial offering of the PEPS
Shares, unless you have given notice that the distribution of the PEPS Shares
has not yet been completed. If such latter notice is given, the agreement set
forth in this paragraph shall survive until the earlier of (x) the notice of
termination referred to in (a) above and (y) 30 days after the date of any
notice that the distribution of the PEPS Shares has not yet been completed.
We further represent that we have not offered or sold, and
agree not to offer or sell, directly or indirectly, in Japan or to or for the
account of any resident thereof, any of the PEPS Shares acquired in connection
with the distribution contemplated hereby, except for offers or sales to
Japanese International Underwriters or dealers. We further agree to send to any
dealer who purchases from us any of such PEPS Shares a notice stating in
substance that, by purchasing such PEPS Shares, such dealer represents and
agrees that it has not offered or sold, and will not offer or sell, any of such
PEPS Shares, directly or indirectly, in Japan or to or for the account of any
resident thereof and that such dealer will send to any other dealer to whom it
sells any of such PEPS Shares a notice containing substantially the same
statement as is contained in this sentence.
We further represent and agree that (i) it has not offered or
sold and will not offer or sell any PEPS Shares to persons in the United Kingdom
except to persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the purpose of
their businesses or otherwise in circumstances which have not resulted and will
not result in an offer to the public in the United Kingdom within the meaning of
the Public Offers of Securities Regulations 1995 (the "Regulations"); (ii) it
has complied and will comply with all applicable provisions of the Financial
Services Xxx 0000 and the Regulations with respect to anything done by it in
relation to the PEPS Shares in, from or otherwise involving the United Kingdom;
and (iii) it has only issued or passed on and will only issue or pass on to any
person in the United Kingdom any document received by it in connection with the
issue of the PEPS Shares if such person is of a kind described in Article 11(3)
of the Financial Services
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Xxx 0000 (Investment Advertisements) (Exemptions) Order 1995 or is a person to
whom such document may otherwise lawfully be issued or passed on.
We represent that we are a foreign bank or dealer not eligible
for membership in the U.S. National Association of Securities Dealers, Inc.
(hereinafter called the "NASD"), and we agree not to offer to sell or sell any
PEPS Shares in, or to persons who are nationals or residents of, the United
States, except for offers and PEPS Shares referred to in clause (x) of the third
paragraph of this Article I. In making sales of PEPS Shares, we agree to comply
with the NASD's Interpretation with Respect to Free-Riding and Withholding and
Sections 8, 24 and 36 of Article III of the NASD's Rules of Fair Practice as
though we were a member in good standing of the NASD and Section 25 of such
Article as it applies to a non-member broker or dealer in a foreign country.
We represent that we have not and agree that we will not,
during the period continuing until the International Representatives shall have
notified us of the completion of the distribution of the PEPS Shares, buy, sell,
deal or trade in (i) any PEPS, ADSs or Common Stock, (ii) any security
convertible into PEPS, ADSs or Common Stock or (iii) any right or option to
acquire or sell PEPS, ADSs or Common Stock or any security convertible into
PEPS, ADSs or Common Stock for our own account or for the account of a customer,
except (a) as provided in the Agreement Among International Underwriters, the
Master Agreement Among Underwriters, this Agreement or the Underwriting
Agreement, (b) that we may convert any security convertible into PEPS, ADSs or
Common Stock owned by us and sell the PEPS, ADSs or Common Stock acquired upon
such conversion and that we may deliver PEPS, ADSs or Common Stock owned by us
upon the exercise of any option written by us as permitted by the provisions set
forth herein, (c) in brokerage transactions on unsolicited orders which have not
resulted from activities on our part in connection with the solicitation of
purchases and which are executed by us in the ordinary course of our brokerage
business and (d) that on or after the date of the initial public offering of the
PEP Shares, we may execute covered writing transactions in options to acquire
PEPS, ADSs or Common Stock, when such transactions are covered by PEPS Shares,
for the accounts of customers.
An opening uncovered writing transaction in options to acquire
PEPS, ADSs or Common Stock for our account or for the account of a customer
shall be deemed, for purposes of this Article I, to be a sale of PEPS or ADSs
which is not unsolicited. The term "opening uncovered
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writing transaction in options to acquire" as used above means a transaction
where the seller intends to become a writer of an option to purchase any PEPS,
ADSs or Common Stock which it does not own. An opening uncovered purchase
transaction in options to sell PEPS, ADSs or Common Stock for our account or for
the account of a customer shall be deemed, for purposes of this paragraph, to be
a sale of PEPS, ADSs or Common Stock which is not unsolicited. The term "opening
uncovered purchase transaction in options to sell" as used above means a
transaction where the purchaser intends to become an owner of an option to sell
PEPS, ADSs or Common Stock which it does not own.
We represent that we have not participated, since we were
invited to participate in the offering of the PEPS Shares, in any transaction
prohibited by this Article I and that we have at all times complied and agree
that we will at all times comply with the provisions of Rule 10b-6 of the U.S.
Securities Exchange Act of 1934, as amended, applicable to this offering.
We agree to indemnify and hold harmless the Trust, the
Company, the Sellers, each Underwriter and each person controlling the Trust,
the Company, the Sellers or any Underwriter from and against any and all losses,
claims, damages and liabilities (including fees and disbursements of counsel)
arising from any breach by us of any of the provisions of this Article I.
II.
PEPS Shares purchased by us at a concession from the offering
price shall be promptly offered upon the terms set forth in the International
Prospectus or for sale at a concession not in excess of the reallowance
concession under the offering price to any International Underwriter or to any
other dealer who enters into an agreement with you in this form with respect to
this offering that, among other things, sets forth such dealer's agreement that
it is not purchasing PEPS Shares for the account of any United States or
Canadian Persons and that it will not offer or resell PEPS Shares in the United
States and Canada. Prior to offering PEPS Shares to any dealer at the public
offering price less the reallowance, you must either ascertain that such dealer
has entered into such an agreement or assure that such dealer will enter into
such an agreement.
We agree to advise you from time to time upon request, prior
to the termination of this Agreement, of the
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number of PEPS Shares remaining unsold which were purchased by us from you or
from any other International Underwriter or dealer at a concession from the
offering price and, on your request, we will resell to you any such PEPS Shares
remaining unsold at the purchase price thereof if, in your opinion, such PEPS
Shares are needed to make delivery against sales made to others.
If prior to the termination of this Agreement (or prior to
such earlier date as you have determined) a U.S. Representative purchases or
contracts to purchase in the open market or otherwise any PEPS Shares which were
purchased by us from you or from any other International Underwriter or dealer
at a concession from the offering price (including any PEPS Shares represented
by certificates which may have been issued on transfer or in exchange for
certificates originally representing such PEPS Shares), and which PEPS Shares
were therefore not effectively placed for investment by us, we authorize you
either to charge our account with an amount equal to such concession which shall
be credited against the cost of such PEPS Shares, or to require us to repurchase
such PEPS Shares at a price equal to the total cost of such purchase, including
any commissions and any taxes on redelivery.
We have not offered or sold, and we will not offer or sell,
directly or indirectly, PEPS Shares that were purchased by us from you or from
any other International Underwriter or dealer at a concession from the offering
price (including any PEPS Shares represented by certificates which may have been
issued on transfer or in exchange for certificates originally representing such
PEPS Shares) to any person at less than the offering price, other than to a
person whose business it is to buy or sell securities, or to act on behalf of
persons who buy or sell securities, and then only in conformity with the
provisions of the sixth paragraph of Article I hereof and at a price that is not
below the offering price less the maximum permissible reallowance to be
specified in the International Prospectus.
We agree that without your consent we will not sell to any
account over which we exercise discretionary authority any of the PEPS Shares.
III.
If we purchase any PEPS Shares from you hereunder, we agree
that such purchases will be evidenced by your
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written confirmation and will be subject to the terms and conditions set forth
in the confirmation and in the International Prospectus.
PEPS Shares purchased by us from you in connection with our
participation as dealer in the offering shall be paid for in full at (i) the
offering price, (ii) such price less the applicable concession or (iii) the
price set forth or indicated in the pricing wire, as you shall advise, at the
office of Xxxxxx Xxxxxxx & Co. Incorporated, One Pierrepont Plaza, Brooklyn, New
York, at such time and on such day as you may advise us, by certified or
official bank check payable in New York Clearing House funds (or other next day
funds) to the order of Xxxxxx Xxxxxxx & Co. International Limited against
delivery of the PEPS Shares. If we are called upon to pay the offering price for
the PEPS Shares purchased by us, the applicable concession will be paid to us,
less any amounts charged to our account pursuant to Article II above, after
termination of this Agreement. Unless we promptly give you written instruction
otherwise, if transactions in the PEPS Shares may be settled through the
facilities of The Depository Trust Company, payment for and delivery of PEPS
Shares purchased by us will be made through such facilities, if we are a member,
or, if we are not a member, settlement may be made through our ordinary
correspondent who is a member.
We authorize the International Representatives as principals
to advance, or to arrange the advance of, funds to us to cover any delay in the
receipt of funds necessary for payment for the PEPS Shares to be purchased by us
and to charge, or to arrange for the charging of, interest on such funds at
current rates.
IV.
You will advise us of the date and time of termination of this
Agreement or of any designated provisions hereof. This Agreement shall in any
event terminate 30 days after the date of the initial offering of the PEPS
Shares unless sooner terminated by you, provided that you may in your discretion
extend this Agreement for a further period or periods not exceeding an aggregate
of 30 days, and provided further that the provisions of Article I hereof shall
survive any termination of this Agreement.
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V.
We agree that you, as International Representatives, have full
authority to take such action as may seem advisable to you in respect of all
matters pertaining to the offering of the PEPS Shares. Neither you, as
International Representatives, nor any of the International Underwriters shall
be under any liability to us for any act or omission, except in respect of
obligations expressly assumed in this Agreement.
All communications to you relating to the subject matter of
this Agreement shall be addressed to the Syndicate Department, Xxxxxx Xxxxxxx &
Co. International Limited, 00 Xxxxx Xxxxxx, Xxxxxx Wharf, Xxxxxx X00 0XX,
Xxxxxxx, and any notices to us shall be deemed to have been duly given if mailed
or telegraphed to us at the address shown below.
VI.
GOVERNING LAW
This Agreement shall be governed by and construed in
accordance with the laws of the State of New York and United States federal law.
Very truly yours,
___________________________
___________________________
___________________________
(ADDRESS)
By_________________________
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