MASTER AGREEMENT AMONG UNDERWRITERS
Registered SEC Offerings
(including Multiple Syndicate Offerings),
Standby Underwritings and Exempt Offerings
(other than Offerings of Municipal Securities)
July 1, 1999
Ladies and Gentlemen:
From time to time Xxxxxxx Xxxxx Xxxxxx Inc. ("Xxxxxxx
Xxxxx Barney") may invite you (and others) to participate on the
terms set forth herein as an underwriter or an initial purchaser,
or in a similar capacity, in connection with certain offerings of
securities that are managed solely by us or with one or more
other co-managers. If we invite you to participate in a specific
offering and sale (an "Offering") to which this Master Agreement
Among Underwriters (the "Xxxxxxx Xxxxx Xxxxxx Master AAU") shall
apply, we will send the information set forth below in Section
1.1 to you by one or more wires, telexes, facsimile or electronic
data transmissions or other written communications (each a "Wire"
and collectively, an "AAU"). Each Wire will indicate that it is
a Wire pursuant to the Xxxxxxx Xxxxx Barney Master AAU. The Wire
inviting you to participate in an Offering is referred to herein
as the "Invitation Wire". You and we hereby agree that by the
terms hereof the provisions of this Xxxxxxx Xxxxx Xxxxxx Master
AAU automatically shall be incorporated by reference in each AAU,
except that any such AAU may also exclude or revise any provision
of this Xxxxxxx Xxxxx Barney Master AAU or may contain such
additional provisions as may be specified in such AAU.
I. GENERAL
1.1. Terms of AAU; Certain Definitions; Construction.
Each AAU shall relate to an Offering and shall identify (i) the
securities to be offered in the Offering (the "Securities"),
their principal terms, the issuer or issuers (each an "Issuer")
and any guarantor (each a "Guarantor") thereof and, if different
from the Issuer, the seller or sellers (each a "Seller") of the
Securities, (ii) the underwriting agreement, purchase agreement,
standby underwriting agreement, distribution agreement or similar
agreement (as identified in such AAU and as amended or
supplemented, including a terms agreement or pricing agreement
pursuant to any of the foregoing, collectively, the "Underwriting
Agreement") providing for the purchase, on a several and not
joint basis, of the Securities by the several underwriters,
initial purchasers or others acting in a similar capacity on
whose behalf the Manager (as defined below) executes the
Underwriting Agreement (including the Manager and the Co-Managers
(as defined below), the "Underwriters"), (iii) if applicable,
that the Underwriting Agreement includes an option (an "Over-
allotment Option") to purchase Additional Securities (as defined
below) to cover over-allotments, if any, (iv) if applicable, that
the Offering is part of an offering that includes concurrent
offerings by two or more syndicates (an "International
Offering"), each of which will offer and sell Securities subject
to such restrictions as shall be specified in any Intersyndicate
Agreement (as defined below) referred to in such AAU, (v) the
price at which the Securities are to be purchased by the several
Underwriters from any Issuer or Seller thereof (the "Purchase
Price"), (vi) the offering terms, including, if applicable, the
price or prices at which the Securities initially will be offered
by the Underwriters (the "Offering Price"), any selling
concession to dealers (the "Selling Concession"), reallowance
(the "Reallowance"), management fee, global coordinators' fee,
praecipium or other similar fees, discounts or commissions
(collectively, the "Fees and Commissions") with respect to the
Securities, (vii) the proposed pricing date ("Pricing Date") and
settlement date (the "Settlement Date"), (viii) any contractual
restrictions on the offer and sale of the Securities pursuant to
the Underwriting Agreement, Intersyndicate Agreement or
otherwise, (ix) any co-managers for such Offering (the "Co-
Managers"), (x) your proposed participation in the Offering, (xi)
if applicable, the trustee, fiscal agent or similar agent (the
"Trustee") for the indenture, trust agreement, fiscal agency
agreement or similar agreement (the "Indenture") under which such
Securities will be issued and (xii) any other principal terms of
the Offering.
The term "Manager" means Xxxxxxx Xxxxx Xxxxxx. The term
"Underwriters" includes the Manager and the Co-Managers. The
term "Firm Securities" means the number or amount of Securities
that the several Underwriters are initially committed to purchase
under the Underwriting Agreement (which may be expressed as a
percentage of an aggregate number or amount of Securities to be
purchased by the Underwriters as in the case of a standby
Underwriting Agreement). The term "Additional Securities" means
the Securities, if any, that the several Underwriters have an
option to purchase under the Underwriting Agreement to cover
over-allotments, if any. The number, amount or percentage of
Firm Securities set forth opposite each Underwriter's name in the
Underwriting Agreement plus any additional Firm Securities that
such Underwriter has become obligated to purchase under the
Underwriting Agreement or Article XI hereof is hereinafter
referred to as the "Original Purchase Obligation" of such
Underwriter and the ratio which such Original Purchase Obligation
bears to the total of all Firm Securities set forth in the
Underwriting Agreement (or, in the case of a standby Underwriting
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Agreement, to 100%) is hereinafter referred to as the
"Underwriting Percentage" of such Underwriter.
References herein to statutory sections, rules,
regulations, forms and interpretive materials shall be deemed to
include any successor provisions.
1.2. Acceptance of AAU. You shall have accepted an AAU
for an Offering if we receive your acceptance, prior to the time
specified in the Invitation Wire for such Offering, by wire,
telex, facsimile or electronic data transmission or other written
communication (any such manner of communication being deemed "In
Writing") (or orally, if promptly confirmed In Writing) in the
manner specified in the Invitation Wire, of our invitation to
participate in the Offering. If we receive your timely
acceptance of the invitation to participate, such AAU shall
constitute a valid and binding contract between us. Your
acceptance of the Invitation Wire shall also constitute
acceptance by you of the terms of subsequent Wires to you
relating to the Offering unless we receive In Writing, within the
time and in the manner specified in such subsequent Wire, a
notice from you to the effect that you do not accept the terms of
such subsequent Wire, in which case you shall be deemed to have
elected not to participate in the Offering.
1.3. Underwriters' Questionnaire. Your acceptance of
the Invitation Wire shall confirm that you have no exceptions to
the Underwriters' Questionnaire attached as Exhibit A hereto (or
to any other questions addressed to you in any Wires relating to
the Offering previously sent to you), other than exceptions noted
by you In Writing in connection with the Offering and received
from you by us before the time specified in the Invitation Wire
or any subsequent Wire.
II. OFFERING MATERIALS
2.1. Registered Offerings. In the case of an Offering
that will be registered in whole or in part (a "Registered
Offering") under the United States Securities Act of 1933, as
amended (the "1933 Act"), you understand that the Issuer has
filed with the Securities and Exchange Commission (the
"Commission") a registration statement including a prospectus
relating to the Securities. The term "Registration Statement"
means such registration statement as amended or deemed to be
amended to the effective date of the Underwriting Agreement and,
in the event that the Issuer files an abbreviated registration
statement to register additional Securities pursuant to Rule
462(b) under the 1933 Act, such abbreviated registration
statement. The term "Prospectus" means the prospectus, together
with the final prospectus supplement, if any, relating to the
Offering first used to confirm sales of Securities and, in the
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case of a Registered Offering that is an International Offering,
the term "Prospectus" shall mean, collectively, each prospectus
or offering circular, together with each final prospectus
supplement or final offering circular supplement, if any,
relating to the Offering, in the respective forms first used or
made available for use to confirm sales of Securities. The term
"Preliminary Prospectus" means any preliminary prospectus
relating to the Offering or any preliminary prospectus supplement
together with a prospectus relating to the Offering and, in the
case of a Registered Offering that is an International Offering,
the term "Preliminary Prospectus" shall mean, collectively, each
preliminary prospectus or preliminary offering circular relating
to the Offering or each preliminary prospectus supplement or
preliminary offering circular supplement, together with a
prospectus or offering circular, respectively, relating to the
Offering. As used herein the terms "Registration Statement",
"Prospectus" and "Preliminary Prospectus" shall include in each
case the material, if any, incorporated by reference therein.
The Manager will furnish to you, or make arrangements for you to
obtain, copies of each Prospectus and Preliminary Prospectus (but
excluding for this purpose, unless otherwise required pursuant to
regulations under the 1933 Act, documents incorporated therein by
reference) as soon as practicable after sufficient quantities
thereof have been made available by the Issuer.
2.2. Unregistered Offerings. In the case of an
Offering other than a Registered Offering, you understand that no
registration statement has been filed with the Commission. The
term "Offering Circular" means an offering circular or
memorandum, if any, or any other written materials authorized by
the Issuer to be used in connection with an Offering that is not
a Registered Offering. The term "Preliminary Offering Circular"
means any preliminary offering circular or memorandum, if any, or
any other written preliminary materials authorized by the Issuer
to be used in connection with such an Offering. As used herein,
the terms "Offering Circular" and "Preliminary Offering Circular"
shall include the material, if any, incorporated by reference
therein. We will either, as soon as practicable after the later
of the date of the Invitation Wire or the date made available to
us by the Issuer, furnish to you (or make available for your
review in our office) a copy of any Preliminary Offering Circular
or any proof or draft of the Offering Circular. In any event, in
any Offering involving an Offering Circular, the Manager will
furnish to you, or make arrangements for you to obtain, as soon
as practicable after sufficient quantities thereof are made
available by the Issuer, copies of the final Offering Circular,
as amended or supplemented, if applicable (but excluding for this
purpose documents incorporated therein by reference).
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III. MANAGER'S AUTHORITY
3.1. Authority of Manager to Determine Form of
Documents, Terms of Offering, Etc. You authorize the Manager to
act as lead manager of the Offering of the Securities by the
Underwriters (the "Underwriters' Securities") or by the Issuer or
Seller pursuant to delayed delivery contracts (the "Contract
Securities"), if any, contemplated by the Underwriting Agreement.
You authorize the Manager, on your behalf, (a) to determine the
form of the Underwriting Agreement, (b) to execute and deliver
the Underwriting Agreement to the Issuer, Guarantor or Seller,
(c) to determine the form of any agreement or agreements between
or among the syndicates participating in the International
Offering of which the Offering is a part (each an "Intersyndicate
Agreement"), and (d) to execute and deliver any such
Intersyndicate Agreement. You authorize the Manager (i) to
exercise any Over-allotment Option for the purchase any of or all
the Additional Securities for the accounts of the several
Underwriters pursuant to the Underwriting Agreement, (ii) to
agree, on your behalf and on behalf of the Co-Managers, to any
addition to, change in or waiver of any provision of, or the
termination of, the Underwriting Agreement or any Intersyndicate
Agreement (other than an increase in the Purchase Price or in
your Original Purchase Obligation to purchase Securities, in
either case from that contemplated by the applicable AAU), (iii)
to add or remove prospective Underwriters to or from the
syndicate, (iv) to exercise, in the Manager's discretion, all the
authority vested in the Manager in the Underwriting Agreement and
(v) except as described below in this Section 3.1, to take any
other action as may seem advisable to the Manager in respect of
the Offering (including, without limitation, actions and
communications with the Commission, the National Association of
Securities Dealers, Inc. (the "NASD"), state blue sky or
securities commissions, stock exchanges and other regulatory
bodies or organizations). If, in accordance with the terms of
the applicable AAU, the Offering of the Securities is at varying
prices based on prevailing market prices or prices related to
prevailing market prices or at negotiated prices, you authorize
the Manager to determine, on your behalf in the Manager's
discretion, any Offering Price and the Fees and Commissions
applicable to the Offering from time to time. You authorize the
Manager on your behalf to arrange for any currency transactions
(including forward and hedging currency transactions) as the
Manager deems necessary to facilitate settlement of the purchase
of the Securities, but you do not authorize the Manager on your
behalf to engage in any other forward or hedging transactions in
connection with the Offering unless such transactions are
specified in an applicable AAU or are otherwise consented to by
you. You further authorize the Manager, subject to the provisions
of Section 1.2 hereof, (i) to vary the offering terms of the
Securities in effect at any time, including, if applicable, the
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Offering Price and Fees and Commissions set forth in the
applicable AAU, (ii) to determine, on your behalf, the Purchase
Price and (iii) to increase or decrease the number, amount or
percentage of Securities being offered. Notwithstanding the
foregoing provisions of this Section 3.1, the Manager shall
notify the Underwriters, prior to the signing of the Underwriting
Agreement, of any provision in the Underwriting Agreement that
could result in an increase in the amount or percentage of Firm
Securities set forth opposite each Underwriter's name in the
Underwriting Agreement by more than 25% (or such other percentage
as shall have been specified in the applicable Invitation Wire or
otherwise consented to by you) as a result of the failure or
refusal of another Underwriter or Underwriters to perform its or
their obligations thereunder.
3.2. Offering Date. The Offering is to be made as soon
after the Underwriting Agreement is entered into by the Issuer,
Guarantor or Seller and the Manager as in the Manager's judgment
is advisable, on the terms and conditions set forth in the
Prospectus or the Offering Circular, as the case may be, and the
applicable AAU. You agree not to sell any Securities prior to
the time the Manager releases such Securities for sale to
purchasers. The date on which such Securities are released for
sale is referred to herein as the "Offering Date".
3.3. Advertising; Supplemental Offering Material. Any
public advertisement of the Offering shall be made by the Manager
on behalf of the Underwriters on such date as the Manager shall
determine. You agree not to advertise the Offering prior to the
date of the Manager's advertisement thereof without the Manager's
consent. If the offering is made in whole or in part in reliance
on Rule 144A (or upon another exemption from registration), you
agree not to engage in any general solicitation and to abide by
any other restrictions in the AAU or the Underwriting Agreement
in connection therewith relating to any advertising or publicity.
Any advertisement you may make of the Offering after such date
will be your own responsibility and at your own expense and risk.
In addition to your agreement to comply with restrictions on the
Offering pursuant to Sections 10.10 and 10.11 hereof, you also
agree that you will not, in connection with the offer and sale of
the Securities in the Offering, without the consent of the
Manager, give to any prospective purchaser of the Securities or
other person not in your employ any written information
concerning the Offering, the Issuer, the Guarantor or the Seller,
other than information contained in any Preliminary Prospectus,
Prospectus, Preliminary Offering Circular or Offering Circular or
in any computational materials ("Computational Materials") or
other offering materials prepared by or with the consent of the
Manager for use by the Underwriters in connection with the
Offering and, in the case of a Registered Offering, filed with
the Commission or the NASD, as applicable (the "Supplemental
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Offering Materials"). You further agree to cease distribution of
any Computational Materials on the Offering Date.
3.4. Institutional and Retail Sales. You authorize the
Manager to sell to institutions or retail purchasers such
Securities purchased by you pursuant to the Underwriting
Agreement as the Manager shall determine. The Selling Concession
on any such sales shall be credited to the accounts of the
Underwriters as the Manager shall determine.
3.5. Sales to Dealers. You authorize the Manager to
sell to Dealers (as defined below) such Securities purchased by
you pursuant to the Underwriting Agreement as the Manager shall
determine. A "Dealer" shall be a person who is (a) a broker or
dealer (as defined in the By-Laws of the NASD) actually engaged
in the investment banking or securities business and (i) a member
in good standing of the NASD or (ii) a foreign bank, broker,
dealer or other institution not eligible for membership in the
NASD that, in the case of either clause (a)(i) or (a)(ii), makes
the representations and agreements applicable to such
institutions contained in Section 10.6 hereof or (b) in the case
of Offerings of Securities that are exempt securities under
Section 3(a)(12) of the Securities Exchange Act of 1934, as
amended (the "1934 Act"), and such other Securities as from time
to time may be sold by a "bank" (as defined in Section 3(a)(6) of
the 1934 Act (a "Bank")), a Bank that is not a member of the NASD
and that makes the representations and agreements applicable to
such institutions contained in Section 10.6 hereof. If the price
for any such sales by the Manager to Dealers exceeds an amount
equal to the Offering Price less the Selling Concession set forth
in the applicable AAU, the amount of such excess, if any, shall
be credited to the accounts of the Underwriters as the Manager
shall determine.
3.6. Direct Sales. The Manager will advise you
promptly, on the date of the Offering, as to the Securities
purchased by you pursuant to the Underwriting Agreement that you
shall retain for direct sale. At any time prior to the
termination of the applicable AAU, any such Securities that are
held by the Manager for sale but not sold, may, on your request
and at the Manager's discretion, be released to you for direct
sale, and Securities so released to you shall no longer be deemed
held for sale by the Manager. You may allow, and Dealers may
reallow, a discount on sales to Dealers in an amount not in
excess of the Reallowance set forth in the applicable AAU. You
may not purchase Securities from, or sell Securities to, any
other Underwriter or Dealer at any discount or concession other
than the Reallowance, except with the consent of the Manager.
3.7. Release of Unsold Securities. From time to time
prior to the termination of the applicable AAU, on the request of
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the Manager, you shall advise the Manager of the amount of
Securities remaining unsold which were retained by or released to
you for direct sale and of the amount of Securities and Other
Securities (as defined below) purchased for your account
remaining unsold which were delivered to you pursuant to Article
V hereof or pursuant to any Intersyndicate Agreement, and, on the
request of the Manager, you shall release to the Manager any such
Securities and Other Securities remaining unsold (i) for sale by
the Manager to institutions, Dealers or retail purchasers, (ii)
for sale by the Issuer or Seller pursuant to delayed delivery
contracts or (iii) if, in the Manager's opinion, such Securities
or Other Securities are needed to make delivery against sales
made pursuant to Article V hereof or any Intersyndicate
Agreement.
3.8. International Offerings. In the case of an
International Offering, you authorize the Manager (i) to make
representations on your behalf as set forth in any Intersyndicate
Agreement or Underwriting Agreement and (ii) to purchase or sell
for your account pursuant to the Intersyndicate Agreement (a)
Securities, (b) any other securities of the same class and
series, or any securities into which the Securities may be
converted or for which the Securities may be exchanged or
exercised and (c) any other securities designated in the
applicable AAU or applicable Intersyndicate Agreement (the
securities referred to in clauses (b) and (c) above being
referred to collectively as the "Other Securities").
IV. DELAYED DELIVERY CONTRACTS
4.1. Arrangements for Sales. You agree that
arrangements for sales of Contract Securities will be made only
through the Manager acting either directly or through Dealers
(including Underwriters acting as Dealers), and you authorize the
Manager to act on your behalf in making such arrangements. The
aggregate amount of Securities to be purchased by the several
Underwriters shall be reduced by the respective amounts of
Contract Securities attributed to such Underwriters as
hereinafter provided. Subject to the provisions of Section 4.2,
the aggregate amount of Contract Securities shall be attributed
to the Underwriters as nearly as practicable in their respective
Underwriting Percentages, except that, as determined by the
Manager in its discretion, (i) Contract Securities directed and
allocated by a purchaser to specific Underwriters shall be
attributed to such Underwriters and (ii) Contract Securities for
which arrangements have been made for sale through Dealers shall
be attributed to each Underwriter approximately in the proportion
that Securities of such Underwriter held by the Manager for sales
to Dealers bear to all Securities so held. The fee with respect
to Contract Securities payable to the Manager for the accounts of
the Underwriters pursuant to the Underwriting Agreement shall be
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credited to the accounts of the respective Underwriters in
proportion to the Contract Securities attributed to such
Underwriters pursuant to the provisions of this Section 4.1,
less, in the case of each Underwriter, the concession to Dealers
on Contract Securities sold through Dealers and attributed to
such Underwriter.
4.2. Excess Sales. If the amount of Contract
Securities attributable to an Underwriter pursuant to Section 4.1
would exceed such Underwriter's Original Purchase Obligation
reduced by the amount of Underwriters' Securities sold by or on
behalf of such Underwriter, such excess shall not be attributed
to such Underwriter, and such Underwriter shall be regarded as
having acted only as a Dealer with respect to, and shall receive
only the concession to Dealers on, such excess.
V. PURCHASE AND SALE OF SECURITIES;
FACILITATION OF DISTRIBUTION
5.1. Purchase and Sale of Securities; Facilitation of
Distribution. In order to facilitate the distribution and sale
of the Securities, you authorize the Manager to buy and sell
Securities and any Other Securities, in addition to Securities
sold pursuant to Article III hereof, in the open market or
otherwise (including, without limitation, pursuant to any
Intersyndicate Agreement), for long or short account, on such
terms as it shall deem advisable, and to over-allot in arranging
sales. Such purchases and sales and over-allotments shall be
made for the accounts of the several Underwriters as nearly as
practicable in their respective Underwriting Percentages or, in
the case of an International Offering, such purchases and sales
shall be for such accounts as set forth in the applicable
Intersyndicate Agreement. Any securities which may have been
purchased by the Manager for stabilizing purposes in connection
with the Offering prior to the execution of the applicable AAU
shall be treated as having been purchased pursuant to this
Section 5.1 for the accounts of the several Underwriters or, in
the case of an International Offering, for such accounts as are
set forth in the applicable Intersyndicate Agreement. Your net
commitment pursuant to the foregoing authorization shall not
exceed at the close of business on any day an amount equal to 20%
of your Underwriting Percentage of the aggregate initial Offering
Price of the Firm Securities, it being understood that, in
calculating such net commitment, the initial Offering Price shall
be used with respect to the Securities so purchased or sold and,
in the case of all Other Securities, shall be the purchase price
thereof. Your net commitment for short account (i.e., "naked
short") shall be calculated by assuming that all Securities that
may be purchased upon exercise of any over-allotment option then
exercisable are acquired (whether or not actually acquired) and,
in the case of an International Offering, after giving effect to
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the purchase of any Securities or Other Securities that the
Manager has agreed to purchase for your account pursuant to any
applicable Intersyndicate Agreement. On demand you shall take up
and pay for any Securities or Other Securities so purchased for
your account and any Securities released to you pursuant to
Section 3.7 hereof and you shall deliver to the Manager against
payment any Securities or Other Securities so sold or over-
allotted for your account or released to you. The Manager agrees
to notify you if it engages in any stabilization transaction
requiring reports to be filed pursuant to Rule 17a-2 under the
1934 Act and to notify you of the date of termination of
stabilization. You agree not to stabilize or engage in any
syndicate covering transaction (as defined in Rule 100 of
Regulation M under the 1934 Act ("Regulation M")) in connection
with the Offering without the prior consent of the Manager. You
further agree to provide to Xxxxxxx Xxxxx Xxxxxx any reports
required of you pursuant to Rule 17a-2 not later than the date
specified therein and you authorize Xxxxxxx Xxxxx Barney to file
on your behalf with the Commission any reports required by such
Rule.
If the limitations of Rule 101 of Regulation M ("Rule
101") do not apply to you with respect to the Securities, Other
Securities or other reference securities (as defined in Rule 100
of Regulation M) because they satisfy the exception for actively-
traded securities in subsection (c)(1) of Rule 101 or the
exception for Rule 144A securities in subsection (b)(10) of Rule
101, you agree that promptly upon notice from the Manager (or, if
later, at the time stated in the notice) you will comply with
Rule 101 as though such exception were not available but the
other provisions of Rule 101 (as interpreted by the Commission
and after giving effect to any applicable exemptions) did apply.
If the securities in question are NASDAQ securities (as defined
in Rule 100 of Regulation M) you may engage in passive market
making in accordance with Rule 103 of Regulation M (except that
the daily net purchase volume limitation will not apply and the
maximum displayed bid size shall be 5,000 shares excluding
transactions effected in the SOES system) unless the notice from
the Manager also states that passive market making is not
permitted.
5.2. Penalty With Respect to Securities Repurchased by
the Manager. If pursuant to the provisions of Section 5.1 and
prior to the termination of the Manager's authority to cover any
short position incurred under the applicable AAU or such other
date as the Manager shall specify in a Wire, either (A) the
Manager purchases or contracts to purchase for the account of any
Underwriter in the open market or otherwise any Securities which
were retained by, or released to, you for direct sale or any
Securities sold pursuant to Section 3.4 for which you received a
portion of the Selling Concession set forth in the applicable
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AAU, or any Securities which may have been issued on transfer or
in exchange for such Securities, and which Securities were
therefore not effectively placed for investment or (B) if the
Manager has advised you by Wire that trading in the Securities
will be reported to the Manager pursuant to the "Initial Public
Offering Tracking System" of The Depository Trust Company ("DTC")
and the Manager determines, based on notices from DTC, that your
customers sold an amount of Securities during any day that
exceeds the amount previously notified to you by Wire, then you
authorize the Manager either to charge your account with an
amount equal to such portion of the Selling Concession set forth
in the applicable AAU received by you with respect to such
Securities or, in the case of clause (B), such Securities as
exceed the amount specified in such Wire or to require you to
repurchase such Securities or, in the case of clause (B), such
Securities as exceed the amount specified in such Wire, at a
price equal to the total cost of such purchase, including
transfer taxes, accrued interest, dividends and commissions, if
any.
5.3. Compliance with Regulation M. You represent that,
at all times since you were invited to participate in the
Offering, you have complied with the provisions of Regulation M
applicable to such Offering, in each case as interpreted by the
Commission and after giving effect to any applicable exemptions.
If you have been notified in a Wire that the Underwriters may
conduct passive market making in compliance with Rule 103 of
Regulation M in connection with the Offering, you represent that,
at all times since your receipt of such Wire, you have complied
with the provisions of such Rule applicable to such Offering, as
interpreted by the Commission and after giving effect to any
applicable exemptions.
5.4. Standby Underwritings. You authorize the Manager
in its discretion, at any time on, or from time to time prior to,
the expiration of the conversion right of convertible securities
identified in the applicable AAU in the case of securities called
for redemption, or the expiration of rights to acquire securities
in the case of rights offerings, for which, in either case,
standby underwriting arrangements have been made: (i) to
purchase convertible securities or rights to acquire Securities
for your account, in the open market or otherwise, on such terms
as the Manager determines and to convert convertible securities
or exercise rights so purchased; and (ii) to offer and sell the
underlying common stock or depositary shares for your account, in
the open market or otherwise, for long or short account (for
purposes of such commitment, such common stock or depositary
shares being considered the equivalent of convertible securities
or rights), on such terms consistent with the terms of the
Offering set forth in the Prospectus or Offering Circular as the
Manager determines. On demand you shall take up and pay for any
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securities so purchased for your account or you shall deliver to
the Manager against payment any securities so sold, as the case
may be. During such period you may offer and sell the underlying
common stock or depositary shares, but only at prices set by the
Manager from time to time, and any such sales shall be subject to
the Manager's right to sell to you the underlying common stock or
depositary shares as above provided and to the Manager's right to
reserve your Securities purchased, received or to be received
upon conversion. You agree not to bid for, purchase, attempt to
induce others to purchase, or sell, directly or indirectly, any
convertible securities or rights or underlying common stock or
depositary shares, provided, however, that no Underwriter shall
be prohibited from (a) selling underlying common stock owned
beneficially by such Underwriter on the day the convertible
securities were first called for redemption, (b) converting
convertible securities owned beneficially by such Underwriter on
such date or selling underlying common stock issued upon
conversion of convertible securities so owned, (c) exercising
rights owned beneficially by such Underwriter on the record date
for a rights offering or selling the underlying common stock or
depositary shares issued upon exercise of rights so owned or (d)
purchasing or selling convertible securities or rights or
underlying common stock or depositary shares as a broker pursuant
to unsolicited orders.
VI. PAYMENT AND SETTLEMENT
6.1. Payment and Settlement. You shall deliver to the
Manager on the date and at the place and time specified in the
applicable AAU (or on such later date and at such place and time
as may be specified by the Manager in a subsequent Wire) the
funds specified in the applicable AAU, payable to the order of
Xxxxxxx Xxxxx Xxxxxx Inc., for (i) an amount equal to the
Offering Price plus (if not included in the Offering Price)
accrued interest, amortization of original issue discount or
dividends, if any, specified in the Prospectus or Offering
Circular, less the applicable Selling Concession in respect of
the Firm Securities to be purchased by you, (ii) an amount equal
to the Offering Price plus (if not included in the Offering
Price) accrued interest, amortization of original issue discount
or dividends, if any, specified in the Prospectus or Offering
Circular, less the applicable Selling Concession in respect of
such of the Firm Securities to be purchased by you as shall have
been retained by or released to you for direct sale as
contemplated by Section 3.6 hereof or (iii) the amount set forth
or indicated in the applicable AAU, as the Manager shall advise.
You shall make similar payment as the Manager may direct for
Additional Securities, if any, to be purchased by you on the date
specified by the Manager for such payment. The Manager will make
payment to the Issuer or Seller against delivery to the Manager
for your account of the Securities to be purchased by you, and
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the Manager will deliver to you the Securities paid for by you
which shall have been retained by or released to you for direct
sale. If the Manager determines that transactions in the
Securities are to be settled through the facilities of DTC or
other clearinghouse facility, payment for and delivery of
Securities purchased by you shall be made through such
facilities, if you are a member, or, if you are not a member,
settlement shall be made through your ordinary correspondent who
is a member.
VII. EXPENSES
7.1. Management Fee. You authorize the Manager to
charge your account as compensation for the Manager's and Co-
Managers' services in connection with the Offering, including the
purchase from the Issuer or Seller of the Securities, as the case
may be, and the management of the Offering, the amount, if any,
set forth as the management fee, global coordinators fee,
praecipium or other similar fee in the applicable AAU. Such
amount shall be divided among the Manager and any Co-Managers
named in the applicable AAU as they may determine.
7.2. General Expenses. You authorize the Manager to
charge your account with your Underwriting Percentage of all
expenses of a general nature incurred by the Manager and Co-
Managers under the applicable AAU in connection with the
Offering, including the negotiation and preparation thereof, or
in connection with the purchase, carrying, marketing and sale of
any securities under the applicable AAU and any Intersyndicate
Agreement, including, without limitation, legal fees and
expenses, transfer taxes, costs associated with approval of the
Offering by the NASD and the costs of currency transactions
(including forward and hedging currency transactions) entered
into to facilitate settlement of the purchase of Securities
permitted under Section 3.1 hereof.
VIII. MANAGEMENT OF SECURITIES AND FUNDS
8.1. Advances; Loans; Pledges. You authorize the
Manager to advance the Manager's own funds for your account,
charging current interest rates, or to arrange loans for your
account for the purpose of carrying out the provisions of the
applicable AAU and any Intersyndicate Agreement and in connection
therewith, to hold or pledge as security therefor all or any
securities which the Manager may be holding for your account
under the applicable AAU and any Intersyndicate Agreement, to
execute and deliver any notes or other instruments evidencing
such advances or loans and to give all instructions to the
lenders with respect to any such loans and the proceeds thereof.
The obligations of the Underwriters under loans arranged on their
behalf shall be several in proportion to their respective
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Original Purchase Obligations and not joint. Any lender is
authorized to accept the Manager's instructions as to the
disposition of the proceeds of any such loans. In the event of
any such advance or loan, repayment thereof shall, in the
discretion of the Manager, be effected prior to making any
remittance or delivery pursuant to Section 8.2, 8.3 or 9.2
hereof.
8.2. Return of Amount Paid for Securities. Out of
payment received by the Manager for Securities sold for your
account which have been paid for by you, the Manager will remit
to you promptly an amount equal to the price paid by you for such
Securities.
8.3. Delivery and Redelivery of Securities for Carrying
Purposes. The Manager may deliver to you from time to time prior
to the termination of the applicable AAU pursuant to Section 9.1
hereof against payment, for carrying purposes only, any
Securities or Other Securities purchased by you under the
applicable AAU or any Intersyndicate Agreement which the Manager
is holding for sale for your account but which are not sold and
paid for. You shall redeliver to the Manager against payment any
Securities or Other Securities delivered to you for carrying
purposes at such times as the Manager may demand.
IX. TERMINATION; INDEMNIFICATION
9.1. Termination. Each AAU shall terminate at the
close of business on the later of the date on which the
Underwriters pay the Issuer or Seller for the Securities and 45
full days after the applicable Offering Date, unless sooner
terminated by the Manager. The Manager may in its discretion by
notice to you prior to the termination of such AAU alter any of
the terms or conditions of the Offering to the extent permitted
by Articles III or IV hereof, or terminate or suspend the
effectiveness of Article V hereof, or any part thereof. No
termination or suspension pursuant to this paragraph shall affect
the Manager's authority under Section 3.1 hereof to take actions
in respect of the Offering or under Article V hereof to cover any
short position incurred under such AAU or in connection with
covering any such short position to require you to repurchase
Securities as specified in Section 5.2 hereof.
9.2. Delivery or Sale of Securities; Settlement of
Accounts. Upon termination of each AAU or prior thereto at the
Manager's discretion, the Manager shall deliver to you any
Securities paid for by you pursuant to Section 6.1 hereof and
held by the Manager for sale pursuant to Section 3.4 or 3.5
hereof but not sold and paid for and any Securities or Other
Securities that are held by the Manager for your account pursuant
to the provisions of Article V hereof or any Intersyndicate
14
Agreement. Notwithstanding the foregoing, at the termination of
such AAU, if the aggregate initial Offering Price of any such
Securities and the aggregate purchase price of any Other
Securities so held and not sold and paid for does not exceed an
amount equal to 20% of the aggregate initial Offering Price of
the Securities, the Manager may, in its discretion, sell such
Securities and Other Securities for the accounts of the several
Underwriters, at such prices, on such terms, at such times and in
such manner as it may determine. Within the period specified by
applicable NASD Rules or, if no period is so specified, as soon
as practicable after termination of such AAU, your account shall
be settled and paid. The Manager may reserve from distribution
such amount as the Manager deems advisable to cover possible
additional expenses. The determination by the Manager of the
amount so to be paid to or by you shall be final and conclusive.
Any of your funds in the Manager's hands may be held with the
Manager's general funds without accountability for interest
Notwithstanding any provision of this Master AAU other
than Section 10.12, upon termination of each AAU or prior thereto
at the Manager's discretion, the Manager (i) may allocate to the
accounts of the Underwriters the expenses described in Section
7.2 hereof and any losses incurred upon the sale of Securities or
Other Securities pursuant to the applicable AAU or any
Intersyndicate Agreement (including any losses incurred upon the
sale of securities referred to in Section 5.4(ii) hereof), (ii)
may deliver to the Underwriters any unsold Securities or Other
Securities purchased pursuant to Section 5.1 hereof or any
Intersyndicate Agreement and (iii) may deliver to the
Underwriters any unsold Securities purchased pursuant to the
applicable Underwriting Agreement, in each case in the Manager's
discretion. The Manager shall have full discretion to allocate
expenses and Securities to the accounts of any Underwriter as the
Manager decides, except that (a) no Underwriter (other than the
Manager or a Co-Manager) shall bear more than its share of such
expenses, losses or Securities (such share shall not exceed such
Underwriter's Underwriting Percentage and shall be determined pro
rata among all such Underwriters based on their Underwriting
Percentages), (b) no such Underwriter shall receive Securities
that, together with any Securities purchased by such Underwriter
pursuant to Section 6.1 (but excluding any Securities that such
Underwriter is required to repurchase pursuant to Section 5.2)
exceed such Underwriter's Original Purchase Obligation and (c) no
Co-Manager shall bear more than its share, as among the Manager
and the other Co-Managers, of such expenses, losses or Securities
(such share to be determined pro rata among the Manager and all
Co-Managers based on (1) their relative Underwriting Percentages
as a percentage of the total combined Underwriting Percentages of
the Manager and all Co-Managers, or (2) if the Manager so
determines, their relative Offering Economics (as hereinafter
defined) as a percentage of the combined Offering Economics of
15
the Manager and all Co-Managers together. The Manager's or a Co-
Manager's "Offering Economics" equals the sum of its Management
Fee Share, its Underwriting Fee Share and its Selling Concession
Share (each as hereinafter defined). The Manager's or a Co-
Manager's "Management Fee Share" is the dollar amount of its
share, as agreed among the Manager and any Co-Managers, of the
amount payable by all Underwriters to some or all of the Manager
and any Co-Manager as a global coordinators' fee, praecipium,
management fee or other fee. The Manager's or a Co-Manager's
"Underwriting Fee Share" is the dollar amount of its Underwriting
Percentage of the aggregate initial Offering Price of the Firm
Securities less the Purchase Price thereof, less the Selling
Concession thereon. The Manager's or a Co-Manager's "Selling
Concession Share" is the dollar amount of any Selling Concession
credited to it on sales from the institutional pot or on sales
made for the account of any other Underwriter. If any Securities
or Other Securities returned to you pursuant to clause (ii) or
(iii) above were not paid for by you pursuant to Section 6.1
hereof, you shall pay to the Manager an amount per security equal
to the amount set forth in Section 6.1(i), in the case of
Securities returned to you pursuant to clause (iii) above, or the
purchase price of such securities, in the case of Securities or
Other Securities returned to you pursuant to clause (ii) above.
9.3. Post-Settlement Expenses. Notwithstanding any
settlement on the termination of the applicable AAU, you agree to
pay any transfer taxes which may be assessed and paid after such
settlement on account of any sales or transfers under such AAU or
any Intersyndicate Agreement for your account and your
Underwriting Percentage of (i) all expenses incurred by the
Manager in investigating, preparing to defend or defending
against any action, claim or proceeding which is asserted or
instituted by any party (including any governmental or regulatory
body) relating to (a) the Registration Statement, any Preliminary
Prospectus or Prospectus (or any amendment or supplement
thereto), any Preliminary Offering Circular or Offering Circular
(or any amendment or supplement thereto) or Supplemental Offering
Materials, (b) the violation of any applicable restrictions on
the offer, sale, resale or purchase of Securities or Other
Securities imposed by United States Federal or state laws or
foreign laws and the rules and regulations of any regulatory body
promulgated thereunder or pursuant to the terms of such AAU, the
Underwriting Agreement or any Intersyndicate Agreement or (c) any
claim that the Underwriters constitute a partnership, an
association or an unincorporated business or other separate
entity and (ii) any liability, including attorneys' fees,
incurred by the Manager in respect of any such action, claim or
proceeding, whether such liability shall be the result of a
judgment or arbitrator's determination or as a result of any
settlement agreed to by the Manager, other than any such expense
or liability as to which the Manager actually receives indemnity
16
pursuant to Section 9.4, contribution pursuant to Section 9.5,
indemnity or contribution pursuant to the Underwriting Agreement
or damages from an Underwriter for breach of its representations,
warranties, agreements, or covenants contained in the applicable
AAU. None of the foregoing provisions of this Section 9.3 shall
relieve any defaulting or breaching Underwriter from liability
for its defaults or breach.
9.4. Indemnification. You 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 1933 Act or Section 20 of the 1934 Act, to the
extent and upon the terms which you agree to indemnify and hold
harmless any of the Issuer, the Guarantor, the Seller, any person
controlling the Issuer, the Guarantor, the Seller, its directors
and, in the case of a Registered Offering, its officers who
signed the Registration Statement and, in the case of an Offering
other than a Registered Offering, its officers, in each case as
set forth in the Underwriting Agreement. You further agree to
indemnify and hold harmless any investment banking firm
identified in a Wire as the qualified independent underwriter as
defined in Rule 2720 of the NASD's Conduct Rules ("QIU") for an
Offering and each person, if any, who controls such QIU within
the meaning of either Section 15 of the 1933 Act or Section 20 of
the 1934 Act, from and against any and all losses, claims,
damages and liabilities related to, arising out of or in
connection with such investment banking firm's activities as QIU
for the Offering. You agree with the other Underwriters to
reimburse such QIU for all expenses, including fees and expenses
of counsel as they are incurred, in connection with
investigating, preparing for, or defending any action, claim or
proceeding related to, arising out of, or in connection with such
QIU's activities as a QIU for the Offering. Each Underwriter
shall be responsible for its Underwriting Percentage of any
amount due to such QIU on account of the foregoing indemnity.
You agree that such QIU shall have no additional liability to any
Underwriter or otherwise as a result of its serving as QIU in
connection with the Offering. You further agree that to the
extent the indemnification provided to a QIU under this Section
9.4 is unavailable to such QIU or insufficient in respect of any
losses, claims, damages or liabilities (and expenses relating
thereto), whether as a matter of law or public policy or as a
result of the default of any Underwriter in performing its
obligations under this Section 9.4, you and each other
Underwriter shall contribute to the amount paid or payable by
such QIU as a result of such losses, claims, damages or
liabilities (and expenses relating thereto) in proportion to your
Underwriting Percentage.
9.5. Contribution. Notwithstanding any settlement on
the termination of the applicable AAU, you agree to pay upon
17
request of the Manager, as contribution, your Underwriting
Percentage of any losses, claims, damages or liabilities, joint
or several, paid or incurred by any Underwriter to any person
other than an Underwriter, arising out of or based upon any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, any Preliminary
Prospectus or Prospectus (or any amendment or supplement
thereto), any Preliminary Offering Circular or Offering Circular
(or any amendment or supplement thereto) or Supplemental Offering
Materials or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading (other than an untrue
statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information
furnished to the Company in writing by the Underwriter on whose
behalf the request for contribution is being made expressly for
use therein) and your Underwriting Percentage of any legal or
other expenses reasonably incurred by the Underwriter (with the
approval of the Manager) on whose behalf the request for
contribution is being made in connection with investigating or
defending any such loss, claim, damage or liability or any action
in respect thereof; provided that no request shall be made on
behalf of any Underwriter guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) from any
Underwriter who was not guilty of such fraudulent
misrepresentation. None of the foregoing provisions of this
Section 9.5 shall relieve any defaulting or breaching Underwriter
from liability for its defaults or breach.
9.6. Separate Counsel. If any claim is asserted or
action or proceeding commenced pursuant to which the indemnity
provided in Section 9.4 may apply, the Manager may take such
action in connection therewith as it deems necessary or
desirable, including retention of counsel for the Underwriters,
and in its discretion separate counsel for any particular
Underwriter or group of Underwriters, and the fees and
disbursements of any counsel so retained shall be allocated among
the several Underwriters as determined by the Manager. Any
Underwriter may elect to retain at its own expense its own
counsel and, on advice of such counsel but only with the consent
of the Manager, may settle or consent to the settlement of any
such claim, action or proceeding. The Manager may settle or
consent to the settlement of any such claim, action or
proceeding. Whenever the Manager receives notice of the assertion
of any claim, action or proceeding to which the provisions of
Section 9.4 would apply, it will give prompt notice thereof to
each Underwriter, and whenever you receive notice of the
assertion of any claim or commencement of any action or
proceeding to which the provisions of Section 9.4 would apply,
you will give prompt notice thereof to the Manager. The Manager
also will furnish each Underwriter with periodic reports, at such
18
times as it deems appropriate, as to the status of such claim,
action or proceeding, and the action taken by it in connection
therewith.
9.7. Survival of Agreements. Regardless of any
termination of an AAU, your agreements contained in Article V and
Sections 3.1, 9.3, 9.4, 9.5, 9.6 and 11.2 shall remain operative
and in full force and effect regardless of (i) any termination of
the Underwriting Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any
Underwriter or by or on behalf of the Issuer, the Guarantor, the
Seller, its directors or officers or any person controlling the
Issuer, the Guarantor or the Seller and (iii) acceptance of any
payment for any Securities.
X. REPRESENTATIONS AND COVENANTS OF UNDERWRITERS
10.1. Knowledge of Offering. You understand that it is
your responsibility to examine the Registration Statement, the
Prospectus or the Offering Circular, as the case may be, relating
to the Offering, any amendment or supplement thereto, any
Preliminary Prospectus or Preliminary Offering Circular and the
material, if any, incorporated by reference therein and any
Supplemental Offering Materials and you will familiarize yourself
with the terms of the Securities, any applicable Indenture and
the other terms of the Offering thereof which are to be reflected
in the Prospectus or the Offering Circular, as the case may be,
and the applicable AAU and Underwriting Agreement. The Manager
is authorized, with the advice of counsel for the Underwriters,
to approve on your behalf any amendments or supplements to the
Registration Statement and the Prospectus or the Offering
Circular, as the case may be.
10.2. Distribution of Materials. You will keep an
accurate record of the names and addresses of all persons to whom
you give copies of the Registration Statement, the Prospectus,
any Preliminary Prospectus (or any amendment or supplement
thereto) or any Offering Circular or any Preliminary Offering
Circular and, when furnished with any subsequent amendment to the
Registration Statement, any subsequent Prospectus, any subsequent
Offering Circular or any memorandum outlining changes in the
Registration Statement or any Prospectus or Offering Circular,
you will, upon request of the Manager, promptly forward copies
thereof to such persons.
10.3. Accuracy of Underwriters' Information. You
confirm that the information that you have given or are deemed to
have given in response to the Underwriters' Questionnaire
attached as Exhibit A hereto (and to any other questions
addressed to you in the Invitation Wire or other Wires), which
information has been furnished to the Issuer for use in the
19
Registration Statement and the Prospectus or the Offering
Circular, as the case may be, or has otherwise been relied upon
in connection with the Offering, is complete and accurate. You
shall notify the Manager immediately of any development before
the termination of the applicable AAU which makes untrue or
incomplete any information that you have given or are deemed to
have given in response to the Underwriters' Questionnaire (or
such other questions).
10.4. Name; Address. Unless you have promptly notified
the Manager in writing otherwise, your name as it should appear
in the Prospectus or the Offering Circular and any advertisement,
if different, and your address are as set forth on the signature
pages hereof.
10.5. Capital Requirements. You represent that your
commitment to purchase the Securities will not result in a
violation of the financial responsibility requirements of Rule
15c3-1 under the 1934 Act or of any similar provision of any
applicable rules of any securities exchange to which you are
subject or, if you are a financial institution subject to
regulation by the Board of Governors of the United States Federal
Reserve System, the United States Comptroller of the Currency or
the United States Federal Deposit Insurance Corporation, will not
place you in violation of any applicable capital requirements or
restrictions of such regulator or any other regulator to which
you are subject.
10.6. Compliance with NASD Requirements. You represent
that you are a member in good standing of the NASD, a Bank that
is not a member of the NASD or a foreign bank or dealer not
eligible for membership in the NASD. In making sales of
Securities, if you are such a member, you agree to comply with
all applicable interpretive material ("IM") and rules of the
NASD, including, without limitation, IM-2110-1 (the NASD's
interpretation with respect to free-riding and withholding) and
Rule 2740 of the NASD's Conduct Rules, or, if you are such a
foreign bank or dealer, you agree to comply, as applicable, with
IM-2110-1 and Rules 2730, 2740 and 2750 of the NASD's Conduct
Rules as though you were such a member and Rule 2420 of the
NASD's Conduct Rules as it applies to a nonmember broker or
dealer in a foreign country. If you are a Bank, you agree, to
the extent required by applicable law or the Conduct Rules of the
NASD, that you will not, in connection with the public offering
of any Securities that do not constitute "exempted securities"
within the meaning of Section 3(a)(12) of the 1934 Act or such
other Securities as from time to time may be sold by a Bank,
purchase any Securities at a discount from the Offering Price
from any Underwriter or dealer or otherwise accept any Fees and
Commissions from any Underwriter or Dealer, and you agree to
20
comply, as applicable, with Rule 2420 of the NASD's Conduct Rules
as though you were a member.
10.7. Further State Notice. The Manager will file a
Further State Notice with the Department of State of New York, if
required.
10.8. Compliance with Rule 15c2-8. In the case of a
Registered Offering and any other Offering to which the
provisions of Rule 15c2-8 under the 1934 Act are made applicable
pursuant to the AAU or otherwise, you agree to comply with such
Rule in connection with the Offering. In the case of an Offering
other than a Registered Offering, you agree to comply with
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.
10.9. Discretionary Accounts. In the case of a
Registered Offering of Securities issued by an Issuer that was
not, immediately prior to the filing of the Registration
Statement, subject to the requirements of Section 13(d) or 15(d)
of the 1934 Act, you agree that you will not make sales to any
account over which you exercise discretionary authority in
connection with such sale except as otherwise permitted by the
applicable AAU for such Offering.
10.10. Offering Restrictions. If you are a foreign
bank or dealer and you are not registered as a broker-dealer
under Section 15 of the 1934 Act, you agree that while you are
acting as an Underwriter in respect of the Securities and in any
event during the term of the applicable AAU, you will not
directly or indirectly effect in, or with persons who are
nationals or residents of, the United States, its territories or
possessions any transactions (except for the purchases provided
for in the Underwriting Agreement and transactions contemplated
by Articles III and V hereof) in Securities or any Other
Securities.
It is understood that, except as specified in the
applicable AAU, no action has been taken by the Manager, the
Issuer, the Guarantor or the Seller to permit you to offer
Securities in any jurisdiction other than the United States, in
the case of a Registered Offering, where action would be required
for such purpose.
10.11. Representations, Warranties and Agreements. You
agree to make to each other Underwriter participating in an
Offering the same representations, warranties and agreements, if
any, made by the Underwriters to the Issuer, the Guarantor or the
Seller in the applicable Underwriting Agreement or any
21
Intersyndicate Agreement and you authorize the Manager to make
such representations, warranties and agreements to the Issuer,
the Guarantor or the Seller on your behalf.
10.12. Limitation on the Authority of the Manager to
Purchase and Sell Securities for the Account of Certain
Underwriters. Notwithstanding any provision of this AAU
authorizing the Manager to purchase or sell any Securities or
Other Securities (including arranging for the sale of Contract
Securities) or over-allot in arranging sales of Securities for
the accounts of the several Underwriters, the Manager may not, in
connection with the Offering of any Securities, make any such
purchases, sales and/or over-allotments for the account of any
Underwriter that, not later than its acceptance of the Invitation
Wire relating to such Offering, has advised the Manager that, due
to its status as, or relationship to, a bank or bank holding
company such purchases, sales and/or over-allotments are
prohibited by applicable law. If any Underwriter so advises the
Manager, the Manager may allocate any such purchases, sales and
over-allotments (and the related expenses) which otherwise would
have been allocated to your account based on your respective
Underwriting Percentage to your account based on the ratio of
your Original Purchase Obligation to the Original Purchase
Obligations of all Underwriters other than the advising
Underwriter or Underwriters or in such other manner as the
Manager shall determine.
XI. DEFAULTING UNDERWRITERS
11.1. Effect of Termination. If the Underwriting
Agreement is terminated as permitted by the terms thereof, your
obligations hereunder with respect to the Offering of the
Securities shall immediately terminate except (i) as set forth in
Section 9.7, (ii) that you shall remain liable for your
Underwriting Percentage (or such other percentage as may be
specified pursuant to Section 9.2) of all expenses and for any
purchases or sales which may have been made for your account
pursuant to the provisions of Article V hereof or any
Intersyndicate Agreement and (iii) that such termination shall
not affect any obligations of any defaulting or breaching
Underwriter.
11.2. Sharing of Liability. If any Underwriter shall
default in its obligations (i) pursuant to Section 5.1, 5.2 or
5.4, (ii) to pay amounts charged to its account pursuant to
Section 7.1, 7.2 or 8.1 or (iii) pursuant to Section 9.2, 9.3,
9.4, 9.5, 9.6 or 11.1, you will assume your proportionate share
(determined on the basis of the respective Underwriting
Percentages of the non-defaulting Underwriters) of such
obligations, but no such assumption shall relieve any defaulting
22
Underwriter from liability to the non-defaulting Underwriters,
the Issuer, the Guarantor or the Seller for its default.
11.3. Arrangements for Purchases. The Manager is
authorized to arrange for the purchase by others (including the
Manager or any other Underwriter) of any Securities not purchased
by any defaulting Underwriter in accordance with the terms of the
applicable Underwriting Agreement or, if the applicable
Underwriting Agreement does not provide arrangements for
defaulting Underwriters, in the discretion of the Manager. If
such arrangements are made, the respective amounts of Securities
to be purchased by the remaining Underwriters and such other
person or persons, if any, shall be taken as the basis for all
rights and obligations hereunder, but this shall not relieve any
defaulting Underwriter from liability for its default.
XII. MISCELLANEOUS
12.1. Obligations Several. Nothing contained in this
Xxxxxxx Xxxxx Xxxxxx Master AAU or any AAU constitutes you
partners with the Manager or with the other Underwriters and the
obligations of you and 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 United
States Internal Revenue Code of 1986, as amended. Each
Underwriter authorizes the Manager, on behalf of such
Underwriter, to execute such evidence of such election as may be
required by the United States Internal Revenue Service.
12.2. Liability of Manager. The Manager shall be under
no liability to you for any act or omission except for
obligations expressly assumed by the Manager in the applicable
AAU.
12.3. Termination of Master Agreement Among
Underwriters. This Xxxxxxx Xxxxx Barney Master AAU may be
terminated by either party hereto upon five business days'
written notice to the other party; provided that with respect to
any Offering for which an AAU was sent prior to such notice, this
Xxxxxxx Xxxxx Xxxxxx Master AAU as it applies to such Offering
shall remain in full force and effect and shall terminate with
respect to such Offering in accordance with Section 9.1 hereof.
12.4. Governing Law. This Xxxxxxx Xxxxx Barney Master
AAU and each AAU shall be governed by and construed in accordance
with the laws of the State of New York applicable to contracts
made and to be performed in the State of New York.
12.5. Amendments. This Xxxxxxx Xxxxx Xxxxxx Master AAU
may be amended from time to time by consent of the parties
hereto. Your consent shall be deemed to have been given to an
23
amendment to this Xxxxxxx Xxxxx Barney Master AAU, and such
amendment shall be effective, five business days following
written notice to you of such amendment if you do not notify
Xxxxxxx Xxxxx Xxxxxx in writing prior to the close of business on
such fifth business day that you do not consent to such
amendment. Upon effectiveness, the provisions of this Xxxxxxx
Xxxxx Barney Master AAU as so amended shall apply to each AAU
thereafter entered into except as otherwise specifically provided
in any such AAU.
12.6. Notices. Any notice to any Underwriter shall be
deemed to have been duly given if mailed, sent by wire, telex,
facsimile or electronic transmission or other written
communication or delivered in person to such Underwriter at the
address which shall have been provided to Xxxxxxx Xxxxx Xxxxxx as
provided in Section 10.4 hereof. Any such notice shall take
effect upon receipt thereof.
Please confirm your acceptance of this Xxxxxxx Xxxxx
Barney Master AAU by signing and returning to us the enclosed
duplicate copy hereof.
Very truly yours,
Xxxxxxx Xxxxx Xxxxxx Inc.
By: _________________________
Name:
Title:
CONFIRMED: ______________________1999
--------------------------------------
(Name of Underwriter)
By: ----------------------------------
Name:
Title:
(If person signing is not an officer or a partner,
please attach instrument of authorization)
Address: -----------------------------
-----------------------------
-----------------------------
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Telephone: --------------------------
Fax: --------------------------
25
EXHIBIT A
June 1, 1999
XXXXXXX XXXXX BARNEY INC.
UNDERWRITERS' QUESTIONNAIRE
In connection with each Offering covered by the Xxxxxxx
Xxxxx Xxxxxx Inc. Master Agreement Among Underwriters dated June
1, 1999, we confirm that except as set forth in a timely reply by
us to the Invitation Wire:
(1) Neither we nor any of our directors, officers or
partners have a material relationship (as "material" is defined
in Regulation C under the 0000 Xxx) with the Issuer, the
Guarantor or any Seller.
(2) (If the offer and sale of the Securities are to be
registered under the 1933 Act pursuant to a Registration
Statement on Form S-1 of Form F-1:) Neither we nor any "group"
(as that term is used in Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act")) of which
we are a member is the beneficial owner (determined in accordance
with Rule 13d-3 under the Exchange Act) of more than 5% of any
class of voting securities of the Issuer or the Guarantor, nor do
we have any knowledge that more than 5% of any class of voting
securities of the Issuer or the Guarantor is held or to be held
subject to any voting trust or other similar agreement.
(3) Other than as may be stated in the Xxxxxxx Xxxxx
Barney Master Agreement Among Underwriters dated June 1, 1999,
the applicable AAU, the Intersyndicate Agreement or dealer
agreement, if any, the Prospectus, the Registration Statement or
the Offering Circular, we do not know and have no reason to
believe that there is an intention to over-allot or that the
price of any security may be stabilized to facilitate the
offering of the Securities.
(4) Except as described in the Prospectus or Offering
Circular, as the case may, be and the Invitation Wire, we do not
know 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.
(5) We have not prepared any report or memorandum for
external use in connection with the Offering. (If there are any
exceptions, (i) furnish four (4) copies of each report and
memorandum to Xxxxxxx Xxxxx Xxxxxx Inc., 000 Xxxxxxxxx Xxxxxx,
00
Xxx Xxxx, X.X. 00000, Attention: Investment Banking
Department/Transaction Structuring Group, (ii) identify each
class of person who received such material and the number of
copies distributed to each such class, and (iii) indicate when
such distribution commenced and ceased.)
(6) (If the offer and sale of the Securities are to be
registered under the 1933 Act pursuant to a Registration
Statement on Form S-1 or Form F-1:) We have not within the past
twelve months prepared or had prepared for us any engineering,
management or similar report or memorandum relating to broad
aspects of the business, operations or products of the Issuer or
the Guarantor. (The immediately preceding sentence does not
apply to reports solely comprised of recommendations to buy, sell
or hold the Issuer's or the Guarantor's securities, unless such
recommendations have changed within the past six months or to
information already contained in documents filed with the
Commission. If there are any exceptions, (i) furnish four (4)
copies of each report and memorandum to Xxxxxxx Xxxxx Barney Inc.
000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, X.X. 00000, Attention:
Investment Banking Department/Transaction Structuring Group, (ii)
identify each class of persons who received such material and the
number of copies distributed to each such class, and (iii)
indicate when such distribution commenced and ceased.)
(7) We are not an "affiliate" of the Issuer or the
Guarantor for purposes of Rule 2720 of the National Association
of Securities Dealers, Inc.'s ("NASD") Conduct Rules. We
understand that under Rule 2720 (except as provided in Rule
2720(b)(1)(C) thereof) two entities are "affiliates" of each
other if one entity controls, is controlled by, or is under
common control with, the second entity and that "control" is
presumed to exist if one entity (or, in the case of an NASD
member, the entity and all "persons associated with" it (as
defined in the NASD By-Laws)) beneficially owns 10% or more of
the second entity's outstanding voting securities or, if the
second entity is a partnership, if the first entity has a
partnership interest in 10% or more of the second entity's
distributable profits or losses.
(8) (If the Securities are not investment grade debt
securities or preferred stock, or equity securities for which
there exists a "bona fide independent market" (as defined in Rule
2720(b)(3) of the NASD's Conduct Rules) or otherwise exempted
under Rule 2720(b)(7)(D) of the NASD's Conduct Rules:) We do not
have a "conflict of interest" with the Issuer or the Guarantor
under Rule 2720 of the NASD's Conduct Rules. In that regard, we
specifically confirm that we, our "parent" (as defined in Rule
2720), affiliates and "persons associated with" us (as defined in
the NASD By-Laws), in the aggregate do not (i) beneficially own
10% or more of the Issuer's or the Guarantor's "common equity",
27
"preferred equity", or "subordinated debt" (as each such term is
defined in Rule 2720), or (ii) in the case of an Issuer or
Guarantor which is a partnership, beneficially own a general,
limited or special partnership interest in 10% or more of the
Issuer's or Guarantor's distributable profits or losses.
(9) (If filing with the NASD is required:) Neither we
nor any of our directors, officers, partners or "persons
associated with" us (as defined in the NASD By-Laws) nor, to our
knowledge, any "related person" (defined by the NASD to include
counsel, financial consultants and advisors, finders, members of
the selling or distribution group, any NASD member participating
in the offering and any other persons associated with or related
to and members of the immediate family of any of the foregoing)
or any other broker-dealer, (a) within the last 12 months have
purchased in private transactions, or intend before, at or within
six months after the commencement of the public offering of the
Securities to purchase in private transactions, any securities of
the Issuer, the Guarantor or any Issuer Related Party (as
hereinafter defined), (b) within the last 12 months had any
dealings with the Issuer, the Guarantor, any Seller or any
subsidiary or controlling person thereof (other than relating to
the proposed Underwriting Agreement) as to which documents or
information are required to be filed with the NASD pursuant to
its Corporate Financing Rule, or (c) during the 12 months
immediately preceding the filing of the Registration Statement
(or, if there is none, the Offering Circular), have 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 reimbursements) and/or the transfer of any warrants,
options or other securities from the Issuer, the Guarantor or any
Issuer Related Party to us or any related person.
(10) (If filing with the NASD is required:) There is no
association or affiliation between us and (i) any officer or
director of the Issuer, the Guarantor or any Issuer Related
Party, or (ii) any securityholder of five percent or more (or, in
the case of an initial public offering of equity securities, any
securityholder) of any class of securities of the Issuer, the
Guarantor or an Issuer Related Party; it being understood that
for purposes of paragraph (9) above and this paragraph (10), the
term "Issuer Related Party" includes any Seller, any affiliate of
the Issuer the Guarantor or a Seller 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 association or affiliation 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).
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(11) (If the Securities are not issued by a real estate
investment trust:) No portion of the net offering proceeds from
the sale of the Securities will be paid to us or any of our
affiliates or "persons associated with" us (as defined in the
NASD By-Laws) or members of the immediate family of any such
person.
(12) (If the Securities are debt securities and their
offer and sale is to be registered under the 1933 Act:) We are
not an affiliate (as defined in Rule 0-2 under the Trust
Indenture Act of 1939) of the Trustee for the Securities 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 ours
(as those terms are defined in the Trust Indenture Act of 1939 or
in the relevant instructions to Form T-1). We and our directors,
partners, and executive officers, taken as a group, did not on
the date specified in the Invitation Wire, and do not, own
beneficially 1% or more of the shares of any class of voting
securities of the Trustee or of its parent, if any. If we are a
corporation, we do not have outstanding and have not assumed or
guaranteed any securities issued otherwise than in our present
corporate name.
(13) (If the Issuer is a public utility:) We are 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.
(14) If we are, or we are affiliated with, a U.S. or
non-U.S. bank, we hereby represent that our participation in the
offering of the Securities on the terms contemplated in the
applicable AAU and the proposed Underwriting Agreement does not
contravene any U.S. or state banking law restricting the exercise
of securities powers in the United States.
Capitalized terms used but not defined herein shall have
the respective meanings given to them in the applicable AAU.
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00250209.AN7
