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FORM OF 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 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 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).
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
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 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 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 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 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 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 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 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 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 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 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
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 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 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
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 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 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 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 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: _____________________________
_____________________________
_____________________________
Telephone: ___________________________
Fax: ___________________________
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, 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", "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).
(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.
