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EXHIBIT 1.2
XXXX.XXX, INC.
(a Delaware corporation)
7,500,000 Shares of Common Stock
INTERSYNDICATE AGREEMENT
_______________, 2000
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INTERSYNDICATE AGREEMENT
Agreement dated _____________ among (A) Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx (NY)"), Bear, Xxxxxxx & Co. Inc.,
Xxxxxx Xxxxxx Partners LLC and Warburg Dillon Read LLC (together, the "U.S.
Representatives") for the U.S. Underwriters (the "U.S. Underwriters") listed in
Schedule A to the U.S. Purchase Agreement (the "U.S. Purchase Agreement") of
even date herewith with Xxxx.xxx, Inc., a Delaware corporation (the "Company")
and (B) Xxxxxxx Xxxxx International ("MLI") for the International Managers (the
"International Managers") listed in Schedule A to the International Purchase
Agreement (the "International Purchase Agreement") of even date herewith with
the Company. The U.S. Purchase Agreement and the International Purchase
Agreement are together referred to herein as the "Purchase Agreements". Terms
not defined herein are used as defined in the Purchase Agreements referred to
above.
The U.S. Underwriters, pursuant to the U.S. Purchase Agreement, have agreed
to purchase the Initial U.S. Securities and have been granted an option by the
Company to purchase the U.S. Option Securities to cover over-allotments
(together, the Initial U.S. Securities and the U.S. Option Securities are
defined as the "U.S. Securities") and the International Managers, pursuant to
the International Purchase Agreement, have agreed to purchase the Initial
International Securities and have been granted an option by the Company to
purchase the International Option Securities to cover over-allotments (together,
the Initial International Securities and the International Option Securities are
defined as the "International Securities"). In connection with the foregoing,
the U.S. Underwriters and the International Managers deem it necessary and
advisable that certain of the activities of the U.S. Underwriters and the
International Managers be coordinated pursuant to this Agreement.
Section 1. The U.S. Underwriters, acting through Xxxxxxx (NY) and the
International Managers, acting through MLI agree that they will consult each
other as to the availability for sale of the shares of Common Stock purchased
from the Company pursuant to the U.S. Purchase Agreement and the International
Purchase Agreement from time to time until the termination of the selling
restrictions applicable to the respective offerings involving the U.S.
Underwriters and the International Managers. Based upon information received
from the U.S. Underwriters and the International Managers, respectively, MLI
agrees to advise Merrill (NY) and Merrill (NY) agrees to advise MLI from time to
time upon request during the consultation period contemplated above, of the
respective number of shares of Common Stock purchased pursuant to the
International Purchase Agreement and shares of Common Stock purchased pursuant
to the U.S. Purchase Agreement remaining unsold. From time to time as mutually
agreed upon by Merrill (NY) and MLI: (a) Merrill (NY) will sell for the account
of one or more U.S. Underwriters to MLI, for the account of one or more
International Managers, such number of shares of Common Stock purchased pursuant
to the U.S. Purchase Agreement and remaining
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unsold and (b) MLI will sell for the account of one or more International
Managers to Merrill (NY), for the account of one or more U.S. Underwriters, such
number of shares of Common Stock purchased pursuant to the International
Purchase Agreement and remaining unsold.
Unless otherwise determined by mutual agreement of Xxxxxxx (NY) and MLI,
the price of any share of Common Stock so purchased or sold shall be the initial
public offering price per share less the selling concession per share, as set
forth in the U.S. Prospectus. Settlement between any of Xxxxxxx (NY) and MLI
with respect to shares of Common Stock transferred hereunder at least three
business days prior to the Closing Time shall be made at the Closing Time and,
in the case of purchases and sales made thereafter, as promptly as practicable
but in no event later than three business days after the transfer date.
Certificates representing the shares of Common Stock so purchased shall be
delivered on or about the respective settlement dates. The liability for payment
to the Company of the purchase price of the shares of Common Stock being
purchased by the U.S. Underwriters and the International Managers under the
Purchase Agreements shall not be affected by the provisions of this Agreement.
Each U.S. Underwriter, acting through Xxxxxxx (NY), agrees that, except for
purchases and sales pursuant to this Agreement and stabilization transactions
contemplated hereunder, it will offer, sell or deliver shares of Common Stock,
directly or indirectly, only to United States Persons or Canadian Persons (as
such terms are defined below) and to persons it believes intend to reoffer,
resell or deliver directly or indirectly the same to a United States Person or a
Canadian Person, and any bank, broker or dealer to which such U.S. Underwriter
may sell shares of Common Stock will agree that it will only offer, resell or
deliver shares of Common Stock, directly or indirectly, to United States Persons
or Canadian Persons or at a reallowance only to other banks, brokers or dealers
who so agree.
Each International Manager, acting through MLI, agrees that, except for
purchases and sales pursuant to this Agreement and stabilization transactions
contemplated hereunder, it will not offer, sell or deliver shares of Common
Stock, directly or indirectly, to any United States Person, Canadian Person or
any person it believes may intend to reoffer, resell or deliver directly or
indirectly the same to any United States Person or Canadian Person, and any
bank, broker or dealer to which such International Manager may sell shares of
Common Stock will agree that it will not offer, resell or deliver any shares of
Common Stock, directly or indirectly, to any United States Person or Canadian
Person nor at a reallowance to any bank, broker or dealer which does not so
agree.
As used herein, "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 States or
Canadian Person), and shall include any United States or Canadian branch of a
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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 and "Canada" shall mean Canada and all
areas subject to its jurisdiction.
Section 2. All stabilization transactions shall be conducted at the
direction and subject to the control of Xxxxxxx (NY) as hereinafter provided, so
that stabilization activities worldwide shall be coordinated and conducted in
compliance with any applicable laws and regulations. From time to time upon the
request of MLI, Xxxxxxx (NY) will inform MLI of stabilization transactions
effected pursuant to this Section.
(a) MLI undertakes, and agrees to cause all International Managers,
respectively, to undertake, that in connection with the distribution of the
shares of Common Stock they will comply: (i) with the applicable rules and
regulations of the United States National Association of Securities
Dealers, Inc.; (ii) with the prohibitions against trading by persons
interested in a distribution; (iii) with the requirements for the filing of
all notices and reports relating thereto set forth in Rule 17a-2 under the
United States Securities Exchange Act of 1934, as amended (the "1934 Act");
and (iv) with the requirements of the Agreement Among International
Managers entered into by the International Managers (the "AAIM"). MLI will
cause each bank, broker or dealer which has agreed to participate or is
participating in the distribution to give a similar undertaking.
(b) Xxxxxxx (NY) shall have sole responsibility with respect to any
action which it may take to make over-allotments in arranging for sales of
U.S. Option Securities, International Option Securities and shall have
direction and control of any action taken for stabilizing the market price
of the shares of Common Stock, whether in the United States, or otherwise.
All stabilization transactions shall be for the respective accounts of the
several U.S. Underwriters and International Managers in the proportions set
forth in Section 4 hereof. The net commitment for long or short accounts of
the U.S. Underwriters and the International Managers pursuant to such
over-allotment and stabilization transactions shall not exceed 20% of the
number of Initial U.S. Securities or Initial International Securities, as
the case may be, to be purchased by the U.S. Underwriters or the
International Managers, respectively, as set forth in the U.S. Purchase
Agreement or the International Purchase Agreement, respectively. The
exercise by the U.S. Underwriters and the International Managers of their
respective options to purchase U.S. Option Securities and International
Option Securities shall be at the direction of Xxxxxxx (NY).
Section 3. Xxxxxxx (NY) shall consult with MLI as to the reservations for
sale of the shares of Common Stock made under the AAIM, and upon reaching
agreement with respect thereto, MLI shall reserve for sale and sell to the U.S.
Underwriters, dealers, banks, brokers and others indicated by Merrill (NY), for
the account of the respective International Managers,
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International Securities to be purchased by such International Managers, in the
manner and at the price contemplated by Section 1 hereof.
Section 4. Xxxxxxx (NY) and MLI shall agree as to the expenses that will
constitute expenses of the underwriting and distribution of the shares of Common
Stock common to the U.S. Underwriters and the International Managers, which
expenses, as well as any stabilizing profits or losses, shall be allocated among
the U.S. Underwriters and the International Managers in the same proportion as
the number of shares of Common Stock purchased under the U.S. Purchase Agreement
and the number of shares of Common Stock purchased under the International
Purchase Agreement bear to the aggregate number of shares of Common Stock
purchased under the Purchase Agreements. Except with respect to such common
expenses, the U.S. Underwriters will pay the aggregate expenses incurred in
connection with the purchase, carrying or sale of the shares of Common Stock
purchased by the U.S. Underwriters from the Company and the International
Managers will pay the aggregate expenses incurred in connection with the
purchase, carrying or sale of the shares of Common Stock purchased by the
International Managers from the Company.
Section 5. Xxxxxxx (NY) and MLI agree that:
(a) if the Closing Time is not on the day provided in the Purchase
Agreements, Merrill (NY) and MLI will mutually agree on a postponed date
within the time permitted by the Purchase Agreements and the settlement
dates herein provided shall be adjusted accordingly;
(b) changes in the public offering price or in the concession and
reallowance to banks, brokers or dealers will be made only after
consultation, but in accordance with the directions of Merrill (NY), during
the consultation period specified in the first sentence of Section 1
hereof;
(c) Merrill (NY) and MLI will each keep the others fully informed of
the progress of the offering and distribution of the ADSs and shares of
Common Stock, as the case may be;
(d) MLI agrees that it will cause the termination of the AAIM at such
time as Merrill (NY) shall determine; and
(e) advertising with respect to the offering shall be as mutually
agreed upon by Merrill (NY) and MLI.
Section 6. This Agreement may be amended prior to the Closing Time by
mutual written consent of the parties hereto.
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Section 7. This Agreement may be signed in various counterparts which
together shall constitute one and the same instrument.
Section 8. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAW OF THE STATE OF NEW YORK.
Section 9. Any legal suit, action or proceeding arising out of or relating
to this Agreement, any of the transactions contemplated hereby or any document
referred to herein may be instituted in any state or federal court of competent
jurisdiction located in the Borough of Manhattan of The City of New York, New
York, and by execution and delivery of this Agreement, each of the U.S.
Underwriters and each of the International Managers accepts for itself and in
connection with its properties, generally and unconditionally, the nonexclusive
jurisdiction of the aforesaid courts, and irrevocably agrees to be bound by any
final judgment rendered thereby in connection with this Agreement from which no
appeal has been taken or is available. Each of the U.S. Underwriters and each of
the International Managers irrevocably waives, to the fullest extent permitted
by applicable law, any objection, including, without limitation, any objection
of the laying of venue or based upon the grounds of forum non conveniens, which
it may now or hereafter have to the bringing of any such action or proceeding in
any jurisdiction set forth above. Nothing herein shall limit the right of
Merrill (NY) or MLI to bring proceedings against any U.S. Underwriter or any
International Manager in the courts of any other competent jurisdiction.
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IN WITNESS WHEREOF, this Agreement has been executed as of the date and
year first above written.
Acting on behalf of themselves and the other U.S. Underwriters:
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Xxxxxx Partners LLC
Warburg Dillon Read LLC
By Xxxxxxx Xxxxx & Co.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
By
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Name:
Title:
Acting on behalf of itself and the other International Managers:
XXXXXXX XXXXX INTERNATIONAL
By Xxxxxxx Xxxxx International
By
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Name:
Title:
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