MASTER AGREEMENT AMONG UNDERWRITERS
March 1, 1993
XXXXXXXXX. XXXXXX & XXXXXXXX
SECURITIES CORPORATION
000 Xxxxxxxx
Xxx Xxxx, X.X. 00000
Dear Sirs:
We understand that from time to time you may act as Representative or as one
of the Representatives of the several underwriters of offerings of securities of
various issuers. This Agreement shall apply to any offering of securities in
which we elect to act as an underwriter after receipt of an invitation from you
identifying the issuer, containing information regarding certain terms of the
securities to be offered, specifying the amount of our proposed participation
and the names of the other Representatives, if any, and stating that our
participation as an underwriter in the offering shall be subject to the
provisions of this Agreement. Your invitation will include instructions for our
acceptance of such invitation. At or prior to the time of an offering, you will
advise us, to the extent applicable, as to the expected offering date, the
expected closing date, the initial public offering price, the interest or
dividend rate (or the method by which such rate is to be determined), the
conversion price, the underwriting discount, the management fee, the selling
concession and the reallowance, except that if the public offering price of the
securities is to be determined by a formula based upon the market price of
certain securities (such procedure being hereinafter referred to as Formula
Pricing), you shall so advise us and shall specify the maximum underwriting
discount, management fee and selling concession. Such information may be
conveyed by you in one or more communications (such communications received by
us with respect to the offering are hereinafter collectively referred to as the
Invitation). You will notify us, in the Invitation, if the Underwriting
Agreement (as hereinafter defined) provides for (x) the granting of an option to
purchase additional securities to cover overallotments or (y) two syndicates of
underwriters, a syndicate of underwriters that will offer and sell securities in
the U.S. and Canada to U.S. and Canadian Persons (as such terms are defined the
Agreement Between U.S. Underwriters and International Managers referred to
below) and a syndicate of underwriters (the International Managers) that will
offer and sell securities outside the U.S. and Canada to persons other than U.S.
and Canadian Persons (a Two-Tranche Offering).
This Agreement, as amended or supplemented by the Invitation, shall become
effective with respect to our participation in an offering of securities if your
Syndicate Department receives our oral or written acceptance prior to the time
and date specified in the Invitation (our acceptance being hereinafter referred
to as our Acceptance). Our Acceptance will constitute our confirmation that,
except as otherwise stated in such Acceptance, each statement included in the
Master Underwriters' Questionnaire set forth as Exhibit A hereto (or otherwise
furnished to us) is correct. The issuer of the securities in any offering of
securities made pursuant to this Agreement is hereinafter referred to as the
Issuer. If the Underwriting Agreement does not provide for an over-allotment
option, the securities to be purchased are hereinafter referred to as the
Securities; if the Underwriting Agreement provides for an over-allotment option,
the securities the Underwriters (as herein defined) are initially obligated to
purchase pursuant to the Underwriting Agreement are hereinafter called the Firm
Securities and any additional securities which may be purchased by the
Underwriters upon exercise of the over-allotment option are hereinafter called
the Additional Securities. In the case of a Two-Tranche Offering, the securities
the International Managers are initially obligated to purchase pursuant to the
Underwriting Agreement are hereinafter referred to as the International Firm
Securities and any additional securities which may be purchased by the
International Managers upon exercise of any over-allotment option are
hereinafter referred to as the International Additional Securities with the Firm
Securities, the Additional Securities, the International Firm Securities and the
International Additional Securities being hereinafter collectively referred to
as the Securities. Any underwriters of Securities under this Agreement,
including the Representatives (as hereinafter defined), are hereinafter
collectively referred to as the Underwriters. In the case of a Two-Tranche
Offering, the International Managers will not purchase pursuant to this
Agreement in their capacity as International Managers and accordingly will not
be "Underwriters" for the purposes hereof. All references herein to "you" or to
the "Representatives" shall mean Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation and the other firms, if any, which are named as Representatives or,
in the case of a Two-Tranche Offering, as U.S. Representatives in the
Invitation. It
is understood and agreed that Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation may act on behalf of all Representatives. The Securities to be
offered may, but need not, be registered for a delayed or continuous offering
pursuant to Rule 415 under the Securities Act of 0000 (xxx 0000 Xxx).
The following provisions of this Agreement shall apply separately to each
offering of Securities. This Agreement may be supplemented or amended by you by
a written notice to us and, except for supplements or amendments set forth in an
Invitation relating to a particular offering of Securities, any such supplement
or amendment to this Agreement shall be effective with respect to any offering
of Securities to which this Agreement applies after this Agreement is so amended
or supplemented.
1. Registration Statement and Prospectus; Offering Circular. In the case of
an Invitation regarding an offering of Securities registered under the 1933 Act
(a Registered Offering), you will furnish to us, to the extent made available to
you by the Issuer, copies of the registration statement relating to the
Securities filed with the Securities and Exchange Commission (the Commission)
pursuant to the 1933 Act and each amendment thereto (excluding exhibits but
including any documents incorporated by reference therein). If the registration
statement relates to securities to be offered on a delayed or continuous basis
pursuant to Rule 415 under the 1933 Act, the term Registration Statement means
such registration statement as amended to the date of the Underwriting
Agreement. Otherwise, the term Registration Statement means such registration
statement as amended at the time when it becomes effective (including the
information, if any, deemed to be a part of such Registration Statement at the
time of effectiveness pursuant to Rule 430A under the 1933 Act). The term
Prospectus means the prospectus, together with a final prospectus supplement, if
any, relating to the offering of the Securities, and in the form first used to
confirm sales of the Securities, except that in the case of a Two-Tranche
Offering, the term Prospectus means, collectively, the U.S. prospectus relating
to the Securities to be offered and sold in the U.S. and Canada to U.S. and
Canadian Persons and the international prospectus relating to the Securities to
be offered and sold outside the U.S. and Canada to persons other than U.S. and
Canadian Persons, in each case, together with a final prospectus supplement, if
any, and in the respective forms first used to confirm sales of the Securities.
The term preliminary prospectus means any preliminary prospectus relating to the
offering of the Securities or any preliminary prospectus supplement together
with a prospectus relating to the offering of the Securities. As used herein the
terms Registration Statement, Prospectus and preliminary prospectus shall
include in each case the material, if any, incorporated by reference therein.
With respect to Securities for which no Registration Statement is filed with
the Commission, you will furnish to us, to the extent made available to you by
the Issuer, copies of any offering circular or other offering materials to be
used in connection with the offering of the Securities and of each amendment
thereto (the Offering Circular).
We understand that it is our responsibility to examine the Registration
Statement, the Prospectus, the Offering Circular, any amendment or supplement
thereto relating to the offering of the Securities, any preliminary prospectus
or offering circular and the material, if any, incorporated by reference therein
and we will familiarize ourself with the terms of the Securities and the other
terms of the offering thereof which are to be reflected in the Prospectus or
Offering Circular and the Invitation. You are authorized, with the approval of
counsel for the Underwriters, to approve on our behalf any amendments or
supplements to the Registration Statement or the Prospectus or Offering
Circular.
2. Underwriting Agreement. We authorize you to execute and deliver an
underwriting or purchase agreement and any amendment or supplement thereto and
any associated Terms Agreement or other similar agreement (collectively, the
Underwriting Agreement) on our behalf with the Issuer and any selling
securityholder with respect to the Securities in such form as you determine. We
will be bound by all terms of the Underwriting Agreement as executed. The term
"original underwriting commitment", as used in this Agreement with respect to
any Underwriter, shall refer to the amount of Firm Securities set forth opposite
such Underwriter's name in the Underwriting Agreement plus any Additional Firm
Securities which such Underwriter may become obligated to purchase pursuant to
the provisions of the Underwriting Agreement or Section 12 hereof and, as used
in this Agreement with respect to any International Manager, shall refer to the
amount of International Firm Securities set forth opposite such International
Manager's name in the Underwriting Agreement plus any additional International
Firm Securities which such International Manager may become obligated to
purchase pursuant to the provisions of the Underwriting Agreement. The ratio
which the original underwriting commitment of any Underwriter bears to the
aggregate amount of Firm
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Securities to be purchased by all the Underwriters is referred to in this
Agreement as the underwriting proportion of such Underwriter.
In the case of a Two-Tranche Offering, we authorize you (i) to execute and
deliver an agreement between the Underwriters and the International Managers
(the Agreement Between U.S. Underwriters and International Managers) on our
behalf with respect to the Securities in such form as you determine, (ii) to
make representations on our behalf as set forth in the Agreement Between U.S.
Underwriters and International Managers and (iii) to purchase or sell Securities
for the account of the Underwriters pursuant to the Agreement Between U.S.
Underwriters and International Managers. We shall be bound by all terms of the
Agreement Between U.S. Managers and International Underwriters as executed.
It is understood that, if so specified in the Invitation, arrangements may
be made for the sale of Securities by the Issuer pursuant to delayed delivery
contracts (herein referred to as Delayed Delivery Contracts). References herein
to delayed delivery and Delayed Delivery Contracts apply only to offerings to
which delayed delivery is applicable.
If the Securities consist in whole or in part of debt obligations maturing
serially, the serial Securities being purchased by each Underwriter pursuant to
the Underwriting Agreement will consist, subject to adjustment as provided in
the Underwriting Agreement, of serial Securities of each maturity in a principal
amount which bears the same proportion to the aggregate principal amount of the
serial Securities of such maturity to be purchased by all the Underwriters as
the principal amount of serial Securities set forth opposite such Underwriter's
name in the Underwriting Agreement bears to the aggregate principal amount of
the serial Securities to be purchased by all the Underwriters.
3. Authorization Under Underwriting Agreement. You are also authorized in
your sole discretion to take the following action with respect to the
Underwriting Agreement and the Agreement Between U.S. Underwriters and
International Managers:
(a) To postpone any closing date or option closing date or to extend any
other time or date specified in the Underwriting Agreement or the Agreement
Between U.S. Underwriters and International Managers.
(b) To exercise any right of cancellation or termination.
(c) To arrange for the purchase by other persons (including yourselves or
any other Underwriters) of any of the Securities (including any Securities
purchased from the International Managers pursuant to the Agreement Between U.S.
Underwriters and International Managers) not taken up by any defaulting
Underwriter or by the other Underwriters as provided in the Underwriting
Agreement.
(d) To give notice on our behalf of the determination to purchase any
Additional Securities.
(e) With respect to offerings using Formula Pricing, to determine the
initial public offering price and the price at which the Securities are to be
purchased in accordance with the Underwriting Agreement.
(f) To consent to any other additions to, changes in or waivers of
provisions of the Underwriting Agreement or the Agreement Between U.S.
Underwriters and International Managers, and to take such other action in
connection with the offering of the Securities, as may seem advisable to you in
respect thereof.
4. Method of Offering. We authorize you to manage the underwriting and the
public offering of the Securities and to take such action in connection
therewith and in connection with the purchase, carrying and resale of the
Securities, including without limitation the following, as you in your sole
discretion deem appropriate or desirable:
(a) To determine the time of the initial public offering of the Securities,
the initial public offering price and the Underwriters' gross spread and whether
to purchase any Additional Securities and the amount, if any, of Additional
Securities to be so purchased.
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(b) To make any changes in the public offering price or other terms of the
offering.
(c) To make changes in those who are to be Underwriters and in the
respective amounts of the Firm Securities to be purchased by them, provided that
our original underwriting commitment shall not be changed without our consent.
(d) To determine all matters relating to advertising and communications with
dealers or others.
(e) To reserve for sale and to sell to institutions or other retail
purchasers, for our account, such of our Securities (including any Securities
purchased from the International Managers pursuant to the Agreement Between U.S.
Underwriters and International Managers) as you may determine; provided,
however, that such reservations and sales shall be made for the respective
accounts of the several Underwriters as nearly as practicable in their
respective underwriting proportions, except for such sales for the account of a
particular Underwriter designated by such a purchaser.
(f) To reserve for sale and to sell to dealers, for our account, such of our
Securities (including any Securities purchased from the International Managers
pursuant to the Agreement Between U.S. Underwriters and International Managers)
as you may determine; provided, however, that such dealers shall be actually
engaged in the investment banking or securities business and shall be either
members in good standing of the National Association of Securities Dealers, Inc.
(the NASD) or dealers with their principal place of business located outside the
United States, it's territories or its possessions and not registered as a
broker-dealer under Section 15 of the Securities Exchange Act of 0000 (xxx 0000
Xxx) who agree to make no sales within the United States, its territories or its
possessions or to persons who are nationals thereof or residents therein; and
provided, further, that each dealer shall agree to comply with the provisions of
Section 24 of Article III of the Rules of Fair Practice of the NASD, and each
foreign dealer who is not a member of the NASD also shall agree to comply with
the NASD's interpretation with respect to free-riding and withholding, to
comply, as though it were a member of the NASD, with the provisions of Section 8
and 36 of Article III of such Rules of Fair Practice, and to comply with Section
25 of Article III thereof as that Section applies to a non-member foreign
dealer.
(g) To apportion such sales to dealers among the Underwriters as nearly as
practicable in the ratio that Securities (including any Securities purchased
from the International Managers pursuant to the Agreement Between U.S.
Underwriters and International Managers) of each Underwriter so reserved bears
to the total amount of Securities (including any Securities purchased from the
International Managers pursuant to the Agreement Between U.S. Underwriters and
International Managers) of all Underwriters so reserved; provided, however, that
if such ratio is to be revised by reason of the release for direct sale as
hereinafter provided, sales may be apportioned by you from day to day on the
basis of the ratio existing at the end of the preceding day.
(h) To fix the concession to dealers and the reallowance to dealers and,
after the initial public offering of the Securities, to make changes in the
concession and reallowance.
(i) At any time with respect to unsold Securities retained by us (including
any Securities purchased from the International Managers pursuant to the
Agreement Between U.S. Underwriters and International Managers): (A) to reserve
any of such Securities for sale by you for our account or (B) to purchase any of
such Securities which in your opinion are needed to enable you to make
deliveries for the accounts of the several Underwriters pursuant to this
Agreement. Such purchases may be made at the public offering price or, at your
option, at such price less all or any part of the concession to dealers.
We understand that you will advise us when the Securities are released for
public offering and of the amount of Securities sold or reserved for sale for
our account. We shall retain for direct sale any Securities purchased by us
(including any Securities purchased from the International Managers pursuant to
the Agreement Between U.S. Underwriters and International Managers) and not so
sold or reserved. Direct sales will be made in accordance with the terms of
offering set forth in the Prospectus or Offering Circular. With your consent, we
may obtain release from you for direct sale of any Securities held by you for
sale pursuant to subparagraphs (e) and (f) above but not sold and paid for. To
the extent Securities so released had been reserved for sale to dealers, the
amount of Securities reserved for our account for sale to dealers shall be
correspondingly reduced. We will advise you from time to time, at your
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request, of the amount of Securities retained by us which remain unsold and of
the amount of Securities remaining unsold which were delivered to us pursuant to
the last paragraph of this Section 4.
If so directed in the Invitation, we agree that without your consent we will
not sell to any account over which we exercise discretionary authority any of
our Securities. We will also comply with any other restriction which may be set
forth in the Invitation.
If, prior to the termination of this Agreement with respect to the offering
of the Securities, you shall purchase or contract to purchase any of the
Securities sold directly by us, in your discretion you may (i) sell for our
account the Securities so purchased and debit or credit our account for the loss
or profit resulting from such sale, (ii) charge our account with an amount equal
to the concession to dealers with respect thereto and credit such amount against
the cost thereof or (iii) require us to purchase such Securities at a price
equal to the total cost of such purchase, including commissions, accrued
interest, amortization of original issue discount or dividends and transfer
taxes on redelivery
5. Delayed Delivery Arrangements. We authorize you to act on our behalf in
making all arrangements for the solicitation of offers to purchase Securities
from the Issuer pursuant to Delayed Delivery Contracts, and we agree that all
such arrangements will be made only through you (directly or through
Underwriters or dealers). You may allow to dealers in respect of such Securities
a commission equal to the concession allowed to dealers pursuant to Section 4.
The commitments of the Underwriters shall be reduced in the aggregate by the
principal amount of Securities covered by Delayed Delivery Contracts made by the
Issuer, the commitment of each Underwriter to be reduced by the principal amount
of such Securities, if any, allocated to you by such Underwriter. Your
determination of the allocation of Securities covered by Delayed Delivery
Contracts among the several Underwriters shall be final and conclusive, and we
agree to be bound by any notice delivered by you to the Issuer setting forth the
amount of the reduction in our commitment as a result of Delayed Delivery
Contracts.
Upon receiving payment from the Issuer of the fee for arranging Delayed
Delivery Contracts, you will credit our account with the portion of such fee
applicable to the Securities covered by Delayed Delivery Contracts allocated to
us. You will charge our account with any commission allocated to dealers in
respect of Securities covered by Delayed Delivery Contracts allocated to us.
6. Trading Authorizations. We authorize Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation, during the term of this Agreement relating to the
offering of the Securities in its discretion:
(a) To make purchases and sales of Securities, any securities of the Issuer
of the same class and series as the Securities, any securities into which the
Securities are convertible or for which the Securities are exchangeable and any
other securities of the Issuer or any guarantor of the Securities specified in
the Invitation, in the open market or otherwise (in addition to purchases and
sales made under the authority of Section 4 and, in the case of a Two-Tranche
Offering, under the authority of the Agreement Between U.S. Underwriters and
International Managers), either for long or short account, on such terms and at
such prices as it may determine.
(b) In arranging for sales of the Securities pursuant to Section 4, to
over-allot, and to make purchases for the purpose of covering any over-allotment
so made.
It is understood that, in connection with the offering of the Securities,
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation may have made purchases of
any such securities for stabilizing purposes prior to the time when we became
one of the Underwriters and we agree that any such securities so purchased shall
be treated as having been purchased pursuant to the foregoing authorization.
All such purchases and sales and over-allotments shall be made for the
respective accounts of the several Underwriters as nearly as practicable in
their respective underwriting proportions except in the case of a Two-Tranche
Offering, in which case, they shall be made for the respective accounts of the
several Underwriters and the several International Managers as set forth in the
Agreement Between U.S. Underwriters and International Managers; provided,
however, that at no time shall our net commitment resulting from such purchases
and sales, either for long or short
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account, or pursuant to such over-allotments, exceed 15% (or such other amount
as may be specified in the Invitation) of our original underwriting commitment
and provided, further, that in determining our net commitment for short account
there shall be subtracted the maximum amount of Additional Securities which we
are entitled to purchase. We agree to take up at cost on demand any securities
so purchased for our account and to deliver on demand any securities so sold or
so over-allotted for our account. Without limiting the generality of the
foregoing, Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation may buy or take
over for the respective accounts of the several Underwriters, all in the
proportion and within the limits set forth, at the price at which reserved, any
of the Securities reserved for sale by it but not sold and paid for, for such
purposes as it may determine, including, but not limited to, the covering of
over-allotments and short sales.
If Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation engages in any
stabilization transaction pursuant to this Section, it will notify us promptly
of the date and time of the first stabilizing purchase and the date and time of
termination of stabilization. Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation shall prepare and maintain such records as are required to be
maintained by it as manager pursuant to Rule 17a-2 under the 1934 Act.
7. Limitation on Transactions by Underwriters. If the Securities are shares
of common stock (Common Stock) of the Issuer or securities of the Issuer that
may be exchanged for or converted into Common Stock, we agree that we will not,
without the advance approval of Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, buy, sell, deal or trade in (i) any Common Stock, (ii) any security
of the Issuer convertible into Common Stock or (iii) any right or option to
acquire or sell Common Stock or any security of the Issuer convertible into
Common Stock, for our own account or for the account of a customer, except:
(a) as provided for in this Agreement or the Underwriting Agreement;
(b) that we may convert any security of the Issuer convertible into Common
Stock owned by us and sell the Common Stock acquired upon such conversion and
that we may deliver 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
Securities, we may execute covered writing transactions in options to acquire
Common Stock, when such transactions are covered by Securities, for the accounts
of customers.
An opening uncovered writing transaction in options to acquire Common Stock
for our account or for the account of a customer shall be deemed, for purposes
of this Section 7, to be a sale of Common Stock which is not unsolicited. The
term "opening uncovered 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 Common Stock which he does not own. An opening uncovered purchase
transaction in options to sell 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
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 Common Stock which he
does not own.
If the Securities are not shares of Common Stock or securities of the Issuer
that may be exchanged for or converted into Common Stock, we agree that we not
bid for or purchase, or attempt to induce any other person to purchase, any
Securities or any other securities of the Issuer designated in the Invitation
other than (i) as provided for in this Agreement or the Underwriting Agreement,
(ii) as approved by Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation or (iii)
as a broker in executing unsolicited orders.
We represent that we have not participated in any transaction prohibited by
the preceding paragraphs of this Section 7 and that we have at all times
complied with and will at all times comply with the provisions of Rule 10b-6 of
the Commission applicable to the offering of the Securities.
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We may, with your prior consent, make purchases of the Securities from and
sales to other Underwriters at the public offering price, less all or any part
of the concession to dealers.
8. Delivery and Payment. At or before such time, on such dates and at such
places as you may specify in the Invitation, we will deliver to you a certified
or official bank check in such funds as are specified in the Invitation, payable
to the order of Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation (unless
otherwise specified in the Invitation) in an amount equal to, as you direct, (i)
the public offering price or prices plus accrued interest, amortization of
original issue discount or dividends, if any, set forth in the Prospectus or
Offering Circular less the selling concession to dealers in respect of the
amount of Securities to be purchased by us in accordance with the terms of this
Agreement, or (ii) the public offering price or prices plus accrued interest,
amortization of original issue discount or dividends, if any, set forth in the
Prospectus or Offering Circular less the selling concession in respect of such
of the Securities to be purchased by us as shall have been retained by or
released to us for direct sale, or (iii) the amount set forth in the Invitation
with respect to the Securities to be purchased by us. You shall use such funds
to make payment on our behalf of the purchase price for the Securities to be
purchased by us. Any balance shall be held by you for our account. If you have
not received our funds as requested, you may in your discretion make any such
payment on our behalf and we will promptly deliver funds to you in the amount so
requested. Any such payment by you will not relieve us from any of our
obligations under this Agreement or under the Underwriting Agreement.
We authorize you, in carrying out the provisions of this Agreement, in your
discretion, to arrange loans for our account, to advance your funds for our
account, charging current interest rates, and to hold or pledge as security
therefor all or any part of the Securities which you may be holding for our
account. Any lender is hereby authorized to accept your instructions with
respect to such loans, and we authorize you to execute and deliver notes or
other instruments in connection therewith.
You shall promptly remit to us or credit to our account (i) the proceeds of
any loan taken down on our behalf and (ii) upon payment to you for any
Securities sold for our account, an amount equal either to the purchase prices
paid by us or the price received by you therefor, as you may determine. If the
Underwriting Agreement for an offering provides for the payment of a commission
or other compensation to the Underwriters, we authorize you to receive such
commission or other compensation for our account.
We authorize you to take delivery of certificates for our Securities (which
may, in the case of Securities which are debt obligations, be in temporary
form), registered as you may direct in order to facilitate deliveries, and to
deliver any Securities reserved for us against sales. You will deliver to us
certificates for our unreserved Securities and certificates for our reserved but
unsold Securities as soon as practicable after the termination of the provisions
referred to in Section 11. If we are a member of the Depositary Trust Company,
you may at your discretion arrange for payment for and/or delivery of our
participation through the facilities of such Company or, if we are not a member,
such settlement may be made through our ordinary correspondent who is a member.
Certificates for all other Securities which you then hold for our account
shall be delivered to us upon termination of this Agreement with respect to the
offering of the Securities, or prior thereto in our discretion, and certificates
for any such Securities may at any time be delivered to us for carrying in
purposes only, subject to redelivery upon demand. If, upon termination of this
Agreement with respect to the offering of the Securities, an aggregate of not
more than 15% of the Securities remains unsold, Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation may, in its discretion, sell such Securities at such
prices as it may determine.
9. Blue Sky Qualification. Upon request, you will inform us as to the
jurisdictions in which you have been advised by counsel that the Securities have
been registered or qualified for sale under the respective securities or Blue
Sky laws, but you do not assume any responsibility or obligation as to our right
to sell the Securities in any jurisdiction.
You are authorized to file or cause to be filed a Further State Notice with
the Department of State of New York.
10. Indemnification and Certain Claims. With respect to each offering of
Securities pursuant to this Agreement, we agree to indemnify and hold harmless
each of the other Underwriters, and each person, if any, who controls any other
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act and to reimburse
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their expenses, all to the extent, if any, and upon the terms that we agree to
indemnify and hold harmless the Issuer and other specified persons and to
reimburse their expenses, as set forth in the Underwriting Agreement.
With respect to each offering of Securities pursuant to this Agreement, we
agree that in respect of any matter connected with or action taken by you
pursuant to this Agreement you shall act only as agent of the Underwriters and
you shall be under no liability to us in any such respect or in respect of the
form of, or the statements contained in, or the validity of, any preliminary
prospectus or offering circular or the Registration Statement or Prospectus or
Offering Circular, or any amendment or supplement to any of them, or for any
report or other filing made by you for us on our behalf under this Agreement,
except for want of good faith and for obligations expressly assumed by you
herein and no obligations on your part will be implied or inferred from
confirmation or acceptance of this Agreement.
With respect to each offering of Securities pursuant to this Agreement, we
will pay our proportionate share (based on our underwriting proportion) of (a)
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 based upon the claim
that the Underwriters constitute an association, unincorporated business or
other separate entity, or relating to the Registration Statement or Prospectus
or Offering Circular (or any amendment or supplement thereto) or any preliminary
prospectus or offering circular and (b) any liability 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
liability as to which you actually receive indemnity pursuant to the first
paragraph of this Section 10 or indemnity or contribution pursuant to the
Underwriting Agreement.
11. Termination and Settlement. With respect to each offering of Securities
pursuant to this Agreement, this Agreement shall terminate (i) on the thirtieth
business day after the initial public offering of the Securities, (ii) on such
earlier date as you may determine or (iii) on the termination of the
Underwriting Agreement if the Underwriting Agreement shall be terminated as
permitted by its terms. You may at your discretion, on notice to us prior to the
termination of this Agreement with respect to the offering of the Securities,
terminate or suspend the effectiveness of Sections 4, 6 and 7 hereof or any part
of them, or alter any of the terms or conditions of offering determined pursuant
to Section 4 hereof. No termination or suspension pursuant to this Section shall
affect your authority under Section 6 hereof to cover any short position under
this Agreement.
Upon termination of this Agreement with respect to the offering of the
Securities, all authorizations, rights and obligations hereunder shall cease,
except (i) the mutual obligations to settle accounts hereunder, (ii) our
obligation to pay any transfer taxes which may be assessed and paid on account
of any sales hereunder for our account, (iii) our obligation with respect to
purchases which may be made by you from time to time thereafter to cover any
short position incurred under this Agreement, (iv) our agreements contained in
the first and third paragraphs of Section 10 hereof and (v) the obligations of
any defaulting Underwriter, all of which shall continue until fully discharged.
The accounts arising pursuant to this Agreement with respect to the offering
of the Securities shall be settled and paid as soon as practicable after
termination hereof with respect to such offering, except that you may reserve
such amount as you deem advisable to cover any additional contingent expenses.
You are authorized at any time:
(a) To make partial distributions of credit balances or call for the payment
of debit balances.
(b) To determine the amounts to be paid to or by us, which determination
will be final and conclusive.
(c) As compensation for your services in connection with this Agreement with
respect to the offering of the Securities, to charge our account and pay to
yourselves, when final accounting is made, an amount per security to be
determined by you (not to exceed the amount or the percentage of the
Underwriters' gross spread per security specified in the Invitation) for each
Security which we have agreed or shall become committed to purchase pursuant to
the Underwriting Agreement.
8
(d) To charge our account with (i) all transfer taxes on sales made for our
account and (ii) our underwriting proportion of all expenses (other than
transfer taxes) incurred by you, as Representatives of the several Underwriters,
in connection with the transaction contemplated by this Agreement with respect
to the offering of the Securities.
(e) To hold any of our funds at any time in your hands with your general
funds without accountability for interest.
12. Default by Underwriters. Default by any Underwriter in respect of its
obligations hereunder or under the Underwriting Agreement shall not release us
from any of our obligations or in any way affect the liability of such
defaulting Underwriter to the other Underwriters or defaulting International
Manager, if any, to the other Underwriters or International Managers, if any,
for damages resulting from such default. If one or more Underwriters or, in the
case of a Two-Tranche Offering, International Managers default under the
Underwriting Agreement, if provided in the Underwriting Agreement you may (but
shall not be obligated to) arrange for the purchase by others, which may include
yourselves or other non-defaulting Underwriters or other non-defaulting
International Managers, if any, of all or a portion of the Securities not taken
up by the defaulting Underwriters or International Managers, as the case may be.
If such arrangements are made, the respective original underwriting
commitments of the non-defaulting Underwriters and the amounts of the Securities
to be purchased by others, if any, shall be as the basis for all rights and
obligations hereunder; but this shall not in any way, affect the liability of
any defaulting Underwriter or defaulting International Manager, if any, to the
other Underwriters or International Managers, if any, for damages resulting from
its default, nor shall any such default relieve any other Underwriter or other
International Manager, if any, of any of its obligations hereunder or under the
Underwriting Agreement except as herein or therein provided. In addition, in the
event of default by one or more Underwriters or International Managers, if any,
in respect of their obligations under the Underwriting Agreement to purchase the
Securities agreed to be purchased by them thereunder and, to the extent that
arrangements shall not have been made by you for any person to assume the
obligations of such defaulting Underwriter or Underwriters or International
Manager or International Managers, we agree, if provided in the Underwriting
Agreement, to assume our proportionate share, based upon the ratio of our
original underwriting commitment to the aggregate original underwriting
commitments of the other non-defaulting Underwriters except in the case of a
Two-Tranche Offering, in which case, to the aggregate original underwriting
commitments of the other non-defaulting Underwriters and non-defaulting
International Managers, of the obligations of each such defaulting Underwriter
and defaulting International Manager (subject to the limitations contained in
the Underwriting Agreement) without relieving such defaulting Underwriter or
defaulting International Manager of its liability therefor.
In the event of default by one or more Underwriters in respect of their
obligations under this Agreement to take up and pay for any securities
purchased, or to deliver any securities sold or over-allotted by you for the
respective accounts of the Underwriters, or to bear their proportion of expenses
or liabilities pursuant to this Agreement, and to the extent that arrangements
shall not have been made by you for any persons to assume the obligations of
such defaulting Underwriter or Underwriters, we agree to assume our
proportionate share, based upon the ratio of our original underwriting
commitment to the aggregate original underwriting commitments of the other
non-defaulting Underwriters of the obligations of each defaulting Underwriter
without relieving any such defaulting Underwriter of its liability therefor.
13. Distribution of Prospectuses; Offering Circulars. We are familiar with
Securities Act of 1933 Release No. 4968 and Rule 15c2-8 under the 1934 Act,
relating to the distribution of preliminary and final prospectuses, and we
confirm that we will comply therewith, to the extent applicable, in connection
with any sale of Securities. You shall cause to be made available to us, to the
extent made available to you by the Issuer, such number of copies of the
Prospectus as we may reasonably request for purposes contemplated by the 1933
Act, the 1934 Act and the rules and regulations thereunder.
If an Invitation states that the offering is subject to the 48-hour
prospectus delivery requirement set forth in Rule 15c2-8(b), our Acceptance of
the Invitation shall be deemed to constitute confirmation that we have delivered
(or we will deliver) a copy of the preliminary prospectus to all persons to whom
we expect to confirm a sale of Securities and that such delivery was effected
(or will be effected) at least 48 hours prior to the mailing of such
confirmations of sale.
9
We will keep an accurate record of the names and addresses of all persons to
whom we give copies of the Registration Statement, the Prospectus, the Offering
Circular or any preliminary prospectus or offering circular (or any amendment or
supplement thereto), and, when furnished with any subsequent amendment to the
Registration Statement, any subsequent prospectus or offering circular or any
memorandum outlining changes in the Registration Statement or any prospectus or
offering circular, we will, upon your request, promptly forward copies thereof
to such persons.
Our Acceptance of an Invitation relating to an offering made pursuant to an
Offering Circular shall constitute our agreement that, if requested by you, we
will furnish a copy of any amendment to in preliminary or final Offering
Circular to each person to whom we shall have furnished a previous preliminary
or final Offering Circular. Our Acceptance shall constitute our confirmation
that we have delivered and our agreement that we will deliver all preliminary
and final Offering Circulars required for compliance with the applicable federal
and state laws and the applicable rules and regulations of any regulatory body
promulgated thereunder governing the use and distribution of offering circulars
by underwriters and, to the extent consistent with such laws, rules and
regulations, our Acceptance shall constitute our confirmation that we have
delivered and our agreement that we will deliver all preliminary and final
Offering Circulars which would be required if the provisions of Rule 15c2-8 (or
any successor provision) under the 1934 Act applied to such offering.
14. Miscellaneous. Nothing in this Agreement 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. Each Underwriter
elects to be excluded from the application of Subchapter K, Chapter 1, Subtitle
A, of the Internal Revenue Code of 1986, as amended. Default by any Underwriter
with respect to the Underwriter Agreement shall not release us from any of our
obligations thereunder or hereunder.
Unless we have promptly notified you in writing otherwise, our name as it
should appear in the Prospectus or Offering Circular and our address are set
forth below.
Any notice from you to us shall be deemed to have been given if mailed,
telegraphed or hand delivered, or telephoned and subsequently confirmed in
writing, to our address appearing below.
We confirm that we are a member in good standing of the NASD or that we are
a foreign bank or dealer, not eligible for membership in the NASD. In making
sales of Securities, if we are such a member, we agree to comply with all
applicable rules of the NASD, including, without limitation, the NASD's
Interpretation with Respect to Free-Riding and Withholding and Section 24 of
Article III of the NASD's Rules of Fair Practice, or, if we are such a foreign
bank or dealer, we agree to comply with Interpretation, Sections 8, 24 and 36 of
such Article as though we were such a member and Section 25 of such Article as
it applies to a non-member broker or dealer in a foreign country.
If we are a foreign bank or dealer and we are not registered as a
broker-dealer under Section 15 of the 1934 Act, we agree that while we are
acting as an Underwriter in respect of the Securities and in any event during
the term of this Agreement with respect of the offering of the Securities, we
will not directly or indirectly effect in, or with persons who are nationals or
residents of, the United States any transactions (except for the purchases
provided for in the Underwriting Agreement and transactions contemplated by
Sections 4, 6 and 7 hereof) in (i) Securities, (ii) Common Stock, if the
Securities are Common Stock or securities of the Issuer that may be exchanged
for or converted `Into Common Stock or (iii) any other securities of the Issuer
designated in the Invitation.
If we are a foreign bank or dealer, we represent that in connection with
sales and offers to sell Securities made by us outside the United States (a) we
will not offer or sell any Securities in any jurisdiction except in compliance
with applicable laws and (b) we will either furnish to each person to whom any
such sale or offer is made a copy of the then current preliminary prospectus or
offering circular, if any, or of the Prospectus or Offering Circular (as then
amended or supplemented), as the case may be, or inform such person that such
preliminary prospectus or offering circular, if any, or Prospectus or Offering
Circular will be available upon request. Any offering material in addition to
the then current preliminary prospectus or offering circular or the Prospectus
or Offering Circular furnished by us to any person in connection with any offers
or sales referred to in the preceding sentence (i) shall be prepared and so
furnished at our sole risk and expense and (ii) shall not contain information
relating to the Securities or the Issuer which is inconsistent in any respect
with the information contained in the then current preliminary prospectus or
offering circular, if any, or
10
in the Prospectus or Offering Circular (as then amended or supplemented), as the
case may be. It is understood that no action has been taken by you or the Issuer
or any seller of the Securities to permit a public offering in any jurisdiction
other than the United States where action would be required for such purpose.
We also confirm that our commitment to purchase Securities pursuant to the
Underwriting Agreement will not result in a violation of Rule 15c3-1 under the
1934 Act or of any similar provisions of any applicable rules of any securities
exchange to which we are subject or of any restriction imposed upon us by any
such exchange or any governmental authority.
We agree that we will notify you immediately of any development before the
termination of this Agreement with respect to the offering of the Securities
which makes untrue or incomplete any information that we have given or are
deemed to have given in response to the Underwriters' Questionnaire.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
Please confirm this Agreement and deliver a copy to us.
Very truly yours,
Name of Firm:
By
-------------------------------------------
Authorized Officer or Partner
Address:
---------------------------------------------
---------------------------------------------
---------------------------------------------
Confirmed as of the date first above written.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By
--------------------------------------------
Managing Director
11
EXHIBIT A
MASTER UNDERWRITERS' QUESTIONNAIRE
In connection with each offering of Securities pursuant to the Xxxxxxxxx,
Lufkin & Xxxxxxxx Securities Corporation Master Agreement Among Underwriters
dated March 1, 1993 (the "Agreement"), each Underwriter confirms the following
information, except as indicated in such Underwriter's Acceptance or other
written communication furnished to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation. Defined terms used herein have the same meaning as defined terms in
the Agreement.
(a) Neither such Underwriter nor any of its directors, officers or partners
have any material (as defined in Regulation C under the 0000 Xxx) relationship
with the Issuer, its parent (if any), any other seller of the Securities or any
guarantor of the Securities, nor has such Underwriter or any of such persons
been, at any time during the last three years, or are now, an officer or
director of the Issuer, its parent (if any), any other seller of the Securities
or any guarantor of the Securities or an associate (as "associate" is defined in
such Regulation C) of any officer or director of the Issuer, its parent (if
any), any other seller of the Securities or any guarantor of the Securities or
any other person who, to the knowledge of such Underwriter, owns (either
beneficially, determined in accordance with Rule 13d-3 under the 1934 Act, or of
record) more than 5% of the outstanding shares of any class of voting securities
of the Issuer, its parent (if any), any other seller of the Securities or any
guarantor of the Securities.
(b) Except as described or to be described in the Agreement, the
Underwriting Agreement, the Agreement Between U.S. Underwriters and
International Managers or the Invitation, such Underwriter does not know: (i) of
any discounts or commissions to be allowed or paid to dealers, including all
cash, securities, contracts, or other consideration to be received by any dealer
in connection with the sale of the Securities, or of any other discounts or
commissions to be allowed or paid to the Underwriters or of any other items that
would be deemed by the NASD to constitute underwriting compensation for purposes
of the NASD's Rules of Fair Practice, (ii) of any intention to over-allot, or
(iii) that the price of any security may be stabilized to facilitate the
offering of the Securities.
(c) No report or memorandum has been prepared by such Underwriter for
external use (i.e., outside such Underwriter's organization) in connection with
the proposed offering of Securities and, in the case of a Registered Offering
where the Registration Statement is on Form S-1, such Underwriter has not
prepared or had prepared for it, within the past twelve months, any engineering,
management or similar report or memorandum relating to broad aspects of the
business, operations or products of the Issuer, its parent (if any) or any
guarantor of the Securities. If any such report or memorandum has been prepared,
furnish to Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation three copies
thereof, together with a statement as to the distribution of the report or
memorandum, identifying each class of persons to whom the report or memorandum
was distributed, the number of copies distributed to each class and the period
of distribution.
(d) If the Securities are debt securities to be issued under an indenture to
be qualified under the Trust Indenture Act of 1939, neither such Underwriter nor
any of its directors, officers or partners is an "affiliate", as that term is
defined under the Trust Indenture Act of 1939, of the Trustee for the Securities
as specified in the Invitation, or of its parent (if any); neither the Trustee
nor its parent (if any) nor any of their directors or executive officers is a
director, officer, partner, employee, appointee or representative of such
Underwriter as those terms are defined in the Trust Indenture Act of 1939 or in
the relevant instructions to Form T-1; neither such Underwriter nor any of its
directors, partners or executive officers, separately owns, nor do such
Underwriter and such persons as a group own, beneficially 1% or more of the
shares of any class of voting securities of the Trustee or of its parent if
any); and if such Underwriter is a corporation, it does not have outstanding nor
has it assumed or guaranteed any securities issued otherwise than in its present
corporate name, and neither the Trustee nor its parent (if any) is a holder of
any such securities.
(e) If the Issuer is a public utility, such Underwriter is not a "holding
company" or a "subsidiary company" or an "affiliate" of a "holding company" or
of a "public utility" company, each as defined in the Public Utility Holding
Company Act of 1935.
(f) Neither such, Underwriter nor any "group" (as that term is defined in
Section 13(d)(3) of the 0000 Xxx) of which it is a member is the beneficial
owner (determined in accordance with Rule l3d-3 under the 0000 Xxx) of more than
5% of any class of voting securities of the Issuer, its parent (if any), any
other seller of the Securities or any guarantor of the Securities nor does it
have any knowledge that more than 5% of any class of voting securities of the
Issuer is held or to be held subject to any voting trust or other similar
agreement.
(g) If the Invitation states that the offering is subject to review by the
NASD pursuant to its Corporate Financing Rule, neither such Underwriter nor any
of its directors, officers, partners or "persons associated with it" (as defined
in the By Laws of the NASD), nor to its knowledge any "related person" (defined
by the NASD to include counsel, financial consultants and advisers, finders,
members of the selling or distribution groups and any other person associated
with or related to any of the foregoing) or any other broker-dealer (1) within
the last twelve months has purchased in private transactions, any securities of
the Issuer or any Issuer-Related Party (as hereinafter defined), or (2) during
the twelve months immediately preceding the filing of the Registration Statement
or if there is none, the Offering Document (including any Prospectus, any
Prospectus Supplement, any offering circular, any offering circular supplement
or any exhibit to any of the foregoing), has entered into any arrangement which
provided or provides for the receipt of any item of value (including, but not
limited to, cash payments and expense reimbursement) and/or the transfer of any
warrants, options or other securities from the Issuer or any Issuer-Related
Party to such Underwriter or any related person. For purposes of this paragraph
(g) the term "Issuer-Related Party" means any selling securityholder offering
securities to the public, any affiliate of the Issuer or a selling
securityholder and the officers or general partners, directors, employees and
securityholders thereof. (If there are any exceptions, state the identity of the
person with whom the affiliation or association exists and, if relevant, the
number of equity securities or the face value of debt securities owned by such
person, the date such securities were acquired and the price paid for such
securities).
2
