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_______________ Shares
PEPS TRUST-AJL
AGREEMENT AMONG INTERNATIONAL UNDERWRITERS
Exhibit A - Underwriting Agreement
Exhibit B - Agreement Between U.S. and
International Underwriters
Exhibit C - 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 PEPS Shares") of its Premium Exchangeable Preferred Shares ("PEPS")
pursuant to an underwriting agreement (the "Underwriting Agreement"),
substantially in the form attached hereto as Exhibit A, with you as
representatives (the "International Representatives") of the international
underwriters named in Schedule II thereto (the "International Underwriters"),
and Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx,
as representatives (the "U.S. Representatives") of the U.S. underwriters named
in Schedule I thereto (the "U.S. Underwriters"). The International Underwriters
and the U.S. Underwriters are hereinafter collectively referred to as the
"Underwriters."
Of such Firm PEPS Shares ________ shares are to be offered
outside the United States and Canada by the International Underwriters (the
"International PEPS Shares") and _______ shares are to be offered by the U.S.
Underwriters in the United States and Canada (the "U.S. Firm PEPS Shares").
In addition, the several U.S. Underwriters will have an option
to purchase from the Company an additional [60,000] shares (the "Additional PEPS
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 Depositary
Shares ("ADSs") or, at the option of the holder thereof, the equivalent in
shares of Common Stock, of Amway Japan Limited (the "Company") on November __,
1998 to be delivered pursuant to purchase contracts between the Trust and each
of HDV GRIT Holdings, Inc., a [__________] corporation, and the Xxx Xxx Xxxxx
Trust, a trust organized
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under the laws of the State of [__________] (collectively, the "Sellers").
We further understand that the Trust has filed with the U.S.
Securities and Exchange Commission (the "Commission") a registration statement
including a U.S. prospectus and an international prospectus relating to the PEPS
Shares and that the Company has filed a registration statement including a
prospectus relating to the ADSs.
I.
We hereby confirm our agreement with you that the
International PEPS Shares shall be purchased by you and the other several
International Underwriters, including ourselves, pursuant to the terms of and as
set forth in the Underwriting Agreement. We further understand that the
International Representatives propose to enter into an agreement with the U.S.
Representatives (the "Agreement Between U.S. and International Underwriters"),
substantially in the form attached hereto as Exhibit B, pursuant to Article I of
which, and subject to the conditions thereof, the several International
Underwriters, including ourselves, could become obligated to purchase PEPS
Shares from, or sell PEPS Shares to, the U.S. Underwriters.
We authorize you (a) to execute and deliver the Underwriting
Agreement and the Agreement Between U.S. and International Underwriters on our
behalf in substantially the forms of Exhibits A and B hereto, respectively, and
to make representations and agreements on our behalf as set forth therein, (b)
to vary the offering terms of the International PEPS Shares in effect at any
time, including the offering price, the concession and the reallowance (other
than a change in the purchase price of the International PEPS Shares), (c) to
agree to the price at which the International PEPS Shares are to be purchased
from the Trust, (d) to agree, on our behalf, to any addition to, change in or
waiver of any provision of the Underwriting Agreement (other than a change in
the purchase price of the International PEPS Shares and the respective numbers
of International PEPS Shares set forth opposite our names in Schedule II
thereto) or of the Agreement Between U.S. and International Underwriters (other
than a change in the purchase price of the International PEPS Shares pursuant to
Article I thereof) and (e) to take any other action as may seem advisable to you
in respect of the offering of the International PEPS Shares. The number of PEPS
Shares set forth opposite each Underwriter's name in Schedule I or in
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Schedule II of the Underwriting Agreement (or such amount increased as provided
in Section 9 of the Underwriting Agreement) or the aggregate purchase price
thereof, as the context requires, is hereinafter referred to as the "Original
Purchase Obligation" of such Underwriter, and the ratio that such Original
Purchase Obligation of any International Underwriter bears to the total number
of International PEPS Shares, expressed as a percentage, is hereinafter referred
to as the "International Underwriting Percentage" of such International
Underwriter.
II.
We authorize you to act as the Lead Managers of the offering
by the International Underwriters of the International PEPS Shares outside of
the United States and Canada and to take such action as may seem advisable to
you in respect thereof. The offering of the International PEPS Shares is to be
made as soon after the Registration Statements (as defined in the Underwriting
Agreement) become effective as in your judgment and the judgment of the U.S.
Representatives is advisable, at the offering price set forth in, and on the
other terms and conditions as you shall determine in accordance with, the
Underwriting Agreement. The offering of the International PEPS Shares is to be
made on the terms and conditions to be set forth in the Underwriting Agreement,
the Agreement Between U.S. and International Underwriters and in the
prospectuses first used to confirm sales of the International PEPS Shares (the
"International Prospectus"), whether or not filed pursuant to Rule 424 under the
U.S. Securities Act of 1933, as amended (the "Act"). During the term of this
Agreement, advertisement of the offering outside of the United States and Canada
will be made only by Xxxxxx Xxxxxxx & Co. International Limited. Such
advertisement will be made on behalf of the International Underwriters on such
dates and in such countries as Xxxxxx Xxxxxxx & Co. International Limited shall
determine.
We authorize Xxxxxx Xxxxxxx & Co. International Limited to
determine whether to purchase, and, if such determination is made, to purchase,
any PEPS Shares for the account of the International Underwriters pursuant to
the Agreement Between U.S. and International Underwriters. We further authorize
Xxxxxx Xxxxxxx & Co. International Limited to determine whether to sell, and, if
such determination is made, to sell, PEPS Shares for the account of the
International Underwriters pursuant to such Agreement.
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We authorize Xxxxxx Xxxxxxx & Co. International Limited to
offer or to sell for our account, in conformity with the immediately succeeding
paragraph, to dealers selected by it (among whom may be included any
International Underwriter) such PEPS Shares purchased by us from the Trust or
pursuant to the Agreement Between U.S. and International Underwriters as Xxxxxx
Xxxxxxx & Co. International Limited shall determine. Sales of PEPS Shares to
dealers shall be made for the account of each International Underwriter
approximately in the proportion that PEPS Shares of such International
Underwriter held by Xxxxxx Xxxxxxx & Co. International Limited for such sales
bear to the total PEPS Shares so held. Such sales shall be made pursuant to
dealer agreements substantially in the form attached as Exhibit C hereto.
We authorize Xxxxxx Xxxxxxx & Co. International Limited to
offer or sell for our account to certain persons (other than the persons to whom
PEPS Shares are sold pursuant to the terms of the immediately preceding
paragraph) such PEPS Shares purchased by us from the Trust or pursuant to the
Agreement Between U.S. and International Underwriters as it shall determine at
the offering price set forth in the International Prospectus. Except for sales
for the accounts of International Underwriters designated by a purchaser,
aggregate sales of PEPS Shares to such persons shall be made for the accounts of
the several International Underwriters as nearly as practicable in their
respective International Underwriting Percentages.
Xxxxxx Xxxxxxx & Co. International Limited will advise us
promptly as to the number of PEPS Shares purchased by us that we shall retain
for direct sale. At any time prior to the termination of this Agreement, any
PEPS Shares purchased by us that are held by Xxxxxx Xxxxxxx & Co. International
Limited for sale for our account as set forth above but not sold may, upon our
request and at Xxxxxx Xxxxxxx & Co. International Limited's discretion, be
released to us for direct sale, and PEPS Shares so released to us shall no
longer be deemed held for sale by you.
From time to time prior to the termination of this Agreement,
at Xxxxxx Xxxxxxx & Co. International Limited's request, we will advise it of
the number of PEPS Shares remaining unsold that were retained by or released to
us for direct sale and of the number of PEPS Shares remaining unsold that were
delivered to us pursuant to Article III hereof and, at Xxxxxx Xxxxxxx & Co.
International Limited's request, we will release to it any such PEPS Shares
remaining unsold for sale by it (i) for our account to dealers or certain other
persons or (ii) if in its opinion,
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such PEPS Shares are needed to make delivery against sales made pursuant to
Article III hereof.
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.
We confirm that, pursuant to the Agreement Between U.S. and
International Underwriters, the International Underwriters are authorizing
Xxxxxx Xxxxxxx & Co. Incorporated to buy and sell PEPS, ADSs or both for the
accounts of the several Underwriters, including the International Underwriters,
in the open market or otherwise, for long or short account, on such terms as it
shall deem advisable and to over-allot in arranging sales. Any PEPS or ADSs that
may have been purchased by the U.S. Representatives for stabilizing purposes in
connection with the offering of the PEPS Shares prior to the execution of this
Agreement and the Agreement Between U.S. and International Underwriters shall be
treated as having been purchased pursuant to this paragraph and the Agreement
Between U.S. and International Underwriters for the accounts of the several
Underwriters. We authorize Xxxxxx Xxxxxxx & Co. International Limited to
over-allot in arranging sales. We recognize that the International Primary
Market Association (IPMA) limits will not be complied with in connection with
stabilization losses and expenses. Subject to the provisions of the Agreement
Between U.S. and International Underwriters, all such purchases, sales and
over-allotments for the International Underwriters as a group shall be for the
accounts of the several International Underwriters as nearly as practicable in
their respective International Underwriting Percentages. At no time shall our
net commitment pursuant to the foregoing authorization exceed 15% of our
Original Purchase Obligation, and, in determining our net commitment for short
account, there shall be subtracted any PEPS Shares that you have agreed to
purchase for our account pursuant to Article I of the Agreement Between U.S. and
International Underwriters. On demand we will take up and pay for any shares of
PEPS of ADSs so purchased for our account and deliver against payment any PEPS
or ADSs so sold or over-allotted for our account. The International
Representatives agree to notify us of the date of termination of stabilization
when so notified by Xxxxxx Xxxxxxx & Co. Incorporated pursuant to the Agreement
Between U.S. and International Underwriters.
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If pursuant to the provisions of the preceding paragraph and
prior to the termination of this Agreement (or prior to such earlier date as the
International Representatives may have determined), the U.S. Representatives
purchase or contract to purchase in the open market or otherwise any PEPS Shares
that were retained by or released to us for direct sale, or any PEPS Shares that
may have been issued on transfer of or in exchange for such PEPS Shares, and
which PEPS Shares were therefore not effectively placed for investment by us, we
authorize the International Representatives either to charge our account with an
amount equal to the selling concession with respect thereto, which amount 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
commissions, if any, and any taxes on redelivery.
IV.
On the Closing Date (as defined in the Underwriting
Agreement), at the office of Xxxxxx Xxxxxxx & Co. Incorporated, One Pierrepont
Plaza, Brooklyn, New York, prior to 8:45 A.M. (New York City time) we will
deliver to you a certified or official bank check, payable to the order of
Xxxxxx Xxxxxxx & Co. International Limited in New York Clearing House funds (or
other next day funds), for (i) an amount equal to the offering price less the
selling concession in respect of the PEPS Shares to be purchased by us, (ii) an
amount equal to the offering price less the selling concession in respect of
such of the PEPS Shares to be purchased by us as shall have been retained by or
released to us for direct sale or (iii) the amount set forth or indicated in a
telex to us, as you shall advise. You will make payment to the Trust against
delivery to you for our account of the PEPS Shares to be purchased by us and you
will deliver to us the PEPS Shares paid for by us which shall have been retained
by or released to us for direct sale. Unless we promptly give you written
instructions 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.
V.
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We authorize you as Lead Managers to charge our account, as
compensation for your services in connection with this issue, including the
purchase from the Trust and the management of the offering, $____ a share for
each PEPS Share that we have agreed to purchase pursuant to Article I of the
Underwriting Agreement.
We authorize you to charge to our account (i) our
International Underwriting Percentage of all expenses incurred by you under the
terms of this Agreement or in connection with the purchase, carrying and sale of
PEPS Shares pursuant to this Agreement and (ii) all transfer taxes paid or
payable on our behalf on purchases, sales or transfers made for our account
pursuant to this Agreement.
VI.
We authorize you to advance your own funds for our account,
charging interest rates prevailing from time to time, or to arrange loans for
our account for the purpose of carrying out the provisions of this Agreement and
in connection therewith to hold or pledge as security therefor all or any PEPS
Shares which you may be holding for our account under this Agreement.
Out of payment received by you for PEPS Shares sold for our
account which have been paid for by us, you will remit to us promptly an amount
equal to the price paid by us for such PEPS Shares.
Xxxxxx Xxxxxxx & Co. International Limited may deliver to us
or transfer to our account from time to time against payment, for carrying
purposes only, any PEPS Shares purchased by us or for our account under this
Agreement that it is holding for sale for our account but that are not sold and
paid for. We will transfer back to Xxxxxx Xxxxxxx & Co. International Limited
against payment at such times as it may demand any PEPS Shares so transferred to
us for carrying purposes.
VII.
This Agreement shall terminate 30 days from the date hereof,
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. You may at your discretion on notice to us prior to
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the termination of this Agreement alter any of the terms or conditions of
offering determined pursuant to Article II hereof or Article III of the
Agreement Between U.S. and International Underwriters, or terminate or suspend
in whole or in part the effectiveness of Article III hereof or paragraphs five
through nine of Article IV thereof. No termination or suspension pursuant to
this paragraph shall affect your authority under Article III to cover any short
or close any long position incurred under this Agreement prior to such
termination or suspension.
Upon termination of this Agreement, or prior thereto at your
discretion, Xxxxxx Xxxxxxx & Co. International Limited shall deliver to us or
transfer to our account any PEPS Shares purchased by us from the Trust or
pursuant to the Agreement Between U.S. and International Underwriters and held
by Xxxxxx Xxxxxxx & Co. International Limited for sale for our account to
dealers or others but not sold and paid for and any shares of PEPS which are
held by Xxxxxx Xxxxxxx & Co. International Limited for our account pursuant to
Article III. As soon as practicable after termination of this Agreement our
account hereunder shall be settled and paid. Xxxxxx Xxxxxxx & Co. International
Limited may reserve from distribution such amount as it deems advisable to cover
possible additional amounts due from us. Determination by Xxxxxx Xxxxxxx & Co.
International Limited of amounts to be paid to or by us shall be final and
conclusive. Any of our funds in Xxxxxx Xxxxxxx & Co. International Limited's
hands may be held with its general funds without accountability for interest.
Notwithstanding any settlement on the termination of this
Agreement, each International Underwriter agrees to pay its International
Underwriting Percentage of (i) all expenses incurred by you in investigating or
defending against any claim or proceeding which is asserted or instituted by any
party (including any governmental or regulatory body) other than an Underwriter
relating to the Registration Statements or the Prospectuses (as defined in the
Underwriting Agreement) (or any amendment or supplement thereto) or any
preliminary prospectus and (ii) any liability, including attorneys' fees,
incurred by you in respect of any such claim or proceeding, whether such
liability shall be the result of a judgment or as a result of any settlement
agreed to by you, other than any such expense or liability as to which you
receive indemnity payments pursuant to the following paragraph, Article III of
the Agreement Between U.S. and International Underwriters or Section 7 of the
Underwriting Agreement.
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We agree to indemnify and hold harmless each other Underwriter
and each person, if any, who controls any such Underwriter within the meaning of
either Section 15 of the Act or Section 20 of the U.S. Securities Exchange Act
of 1934, as amended, to the extent and upon the terms which we agree to
indemnify and hold harmless the Trust, the Company, the Sellers, the directors,
the officers or the trustees, as the case may be, of the Trust and the Company
who sign the Registration Statements, any person controlling the Trust, the
Company or the Sellers as set forth in the Underwriting Agreement.
Our agreements contained in the second through fourth
paragraphs of Article II and this Article VII shall remain operative and in full
force and effect regardless of any termination of this Agreement or the
occurrence of any of the events described in clauses (i) through (iii) of the
last paragraph of Article VII of the Underwriting Agreement.
VIII.
We have examined each prospectus included in the Registration
Statements as amended to date and we are familiar with the terms of the
securities being offered and the other terms of offering which are to be
reflected in the proposed amendment to the Registration Statements. In addition,
we confirm that the information relating to us which has been furnished to the
Trust or the Company for use therein is correct. You are authorized, with the
approval of counsel for the Underwriters, to approve on our behalf such proposed
amendment and any further amendments or supplements to the Registration
Statements or the International Prospectus.
We represent that our commitment to purchase PEPS Shares
hereunder and under the Agreement Between U.S. and International Underwriters
will not result in a violation of any financial responsibility requirements of
any laws, rules or regulations applicable to us, including applicable rules of
any securities exchange.
IX.
If the Underwriting Agreement is terminated as permitted by
the terms thereof, our obligations hereunder shall immediately terminate except
that (i) our obligations as set forth in the last paragraph of Article VII shall
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remain in full force and effect, (ii) we shall remain liable for our
International Underwriting Percentage of all expenses and for any purchases or
sales which may have been made for our account pursuant to the provisions of
Article III, including any taxes on any such purchases or sales and (iii) such
termination shall not affect any obligation of any defaulting International
Underwriter.
In the event that any International Underwriter shall default
in its obligations (i) pursuant to the second paragraph of Article II or the
first paragraph of Article III, (ii) to pay amounts owed by it pursuant to
Article V or (iii) pursuant to the third or fourth paragraph of Article VII or
the first paragraph of this Article IX, we will assume our proportionate share
(determined on the basis of the International Underwriting Percentages of the
non-defaulting International Underwriters) of such obligations, but no such
assumption shall affect any obligation of any defaulting International
Underwriter.
If any one or more of the Underwriters shall fail or refuse to
purchase any PEPS Shares which it or they have agreed to purchase under the
Underwriting Agreement, we agree, in the proportion which the number of Firm
PEPS Shares set forth opposite our name in Schedule II to the Underwriting
Agreement bears to the aggregate number of Firm PEPS Shares set forth opposite
the names of all non-defaulting Underwriters, or in such other proportions as
you may specify, to purchase the PEPS Shares which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase; provided that, in no
event shall the PEPS Shares that any International Underwriter has agreed to
purchase pursuant to the Underwriting Agreement be increased pursuant to this
Article IX by an amount in excess of one-ninth of the number of such PEPS
Shares, without the written consent of such International Underwriter. Xxxxxx
Xxxxxxx & Co. International Limited is authorized to arrange for the purchase by
others (including itself and any other International Underwriter) of any PEPS
Shares not purchased by any defaulting International Underwriter or by the other
International Underwriters as provided in this paragraph and in Section 9 of the
Underwriting Agreement. If such arrangements are made, the respective numbers of
PEPS Shares to be purchased by the remaining International Underwriters and such
other person or persons, if any, shall be taken as the basis for all rights and
obligations hereunder. Any action taken under this paragraph shall not relieve
any defaulting International Underwriter from liability in respect of any
default of such International Underwriter under the Underwriting Agreement or
this Agreement.
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Nothing herein contained shall constitute us partners with you
or with the other Underwriters and the obligations of ourselves and of each of
the other Underwriters are several and not joint. If for United States federal
income tax purposes the International Underwriters shall be deemed to constitute
a partnership, each International Underwriter elects to be excluded from the
application of Subchapter K, Chapter 1, Subtitle A, of the United States
Internal Revenue Code, as amended.
You shall be under no liability to us for any act or omission
except in respect of obligations expressly assumed by you herein.
This Agreement is being executed by us and delivered to you in
duplicate. Upon your confirmation hereof and agreements in identical form with
each of the other Underwriters, this Agreement shall constitute a valid and
binding contract between us.
Your authority hereunder and under the Underwriting Agreement
and the Agreement Between U.S. and International Underwriters may be exercised
by Xxxxxx Xxxxxxx & Co. International Limited and Xxxxxxx Xxxxx International
Limited, jointly or by Xxxxxx Xxxxxxx & Co. International Limited alone. The
authority of the U.S. Representatives hereunder and under the Agreement Between
U.S. and International Underwriters may be exercised by Xxxxxx Xxxxxxx & Co.
Incorporated and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, either
jointly or alone.
This Agreement may be executed in two or more counterparts
which together shall constitute one and the same instrument. If this Agreement
is executed by or on behalf of any party hereto by a person acting under the
power of attorney given him by such party, such person hereby states that at the
time of execution hereof he has no notice of revocation of the power of attorney
by which he has executed this Agreement as such attorney.
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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,
XXXXXX XXXXXXX & CO. INTERNATIONAL
LIMITED
By_______________________________
Attorney-in-fact for each
of the several International
Underwriters named in Schedule II
to the Underwriting Agreement
Confirmed, November __, 1995
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
XXXXXXX XXXXX INTERNATIONAL LIMITED
By XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
By____________________________
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