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XXXXXX XXXX LLC
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Xxx Xxxx, Xxx Xxxx 00000
MASTER AGREEMENT AMONG UNDERWRITERS
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January 2, 1996
Gentlemen:
In connection with certain public offerings of securities after the date
hereof for which we are acting as representative or one of the representatives
of the members of the underwriting syndicate, you may be offered the opportunity
to join the underwriting syndicate. This will confirm our mutual agreement as
to the general terms and conditions applicable to your participation in any such
underwriting syndicate.
1. Applicability of this Agreement. The terms and conditions of this
Agreement shall be applicable to any negotiated offering of securities
("Securities"), pursuant to a registration statement filed under the Securities
Act of 1933, as amended (the "Securities Act"), or exempt from registration
thereunder, wherein we are responsible for managing or otherwise implementing
the sale of the Securities and organizing an underwriting syndicate (including
any such offering where we are acting with others as representatives of the
underwriters) and have expressly informed you that the terms and conditions of
this Agreement shall be applicable. This Agreement shall not apply to any
offering of securities effected wholly outside the United States of America.
Any such offering in which you have been invited to participate as an
underwriter and with respect to which we have informed you that the terms and
conditions of this Agreement apply is hereinafter called an "Offering."
We shall advise you by telecopy, telegram, telex, graphic scanning
communication or other written form of communication that you have been invited
to participate in an Offering (the "Invitation"). The Invitation will also
contain information regarding certain terms of the Securities which are the
subject of the Offering, and the amount of the Securities which you are invited
to underwrite. The Invitation will include instructions for advising us of your
acceptance (the "Acceptance") of the Invitation.
Prior to the time of the Offering, we shall also advise you, to the extent
applicable, of the amount of Securities to be underwritten by you, the
anticipated offering and closing dates, the initial offering price or prices,
the interest or dividend
rate (or the method by which such rate is to be determined), the conversion
price and certain other terms relating to the Securities, whether the
underwriters will be granted an option to purchase additional Securities (the
"Additional Securities"), and, if so, the amount of Additional Securities which
you will be obligated to purchase, whether the seller of the Securities proposes
to authorize the Underwriters (as hereinafter defined) to solicit offers to
purchase Securities from the seller pursuant to delayed delivery contracts (such
contracts being hereinafter called "Delayed Delivery Contracts" and such an
Offering being hereinafter called a "Delayed Delivery Offering"), whether the
seller of the Securities proposes to offer Securities through one or more
underwriting syndicates (which may be composed of a single underwriter) other
than the underwriting syndicate composed of the Underwriters and the extent to
which the Underwriters may become obligated to purchase Securities from, or sell
Securities to, such other underwriting syndicate or syndicates pursuant to one
or more agreements between the Representatives (as hereinafter defined) and the
representatives or managers of such other syndicate or syndicates (or such
single underwriter) (any such agreement being hereinafter referred to as an
"Inter-Syndicate Agreement," and any Securities subject to purchase by the
Underwriters pursuant to an Inter-Syndicate Agreement being referred to herein
as "Other Securities"), and the gross spread and breakdown of management fee,
underwriting compensation and selling concession, and the dealer's reallowance,
except that, if the initial offering price of the Securities is to be determined
by a formula based upon the market price of certain securities (such procedure
being hereinafter called "Formula Pricing"), we shall so indicate in lieu of
specifying an initial offering price or prices (and other applicable terms of
the Securities) and shall specify only the maximum gross spread and maximum
management fee, instead of the initial fixed amounts and components thereof. The
foregoing information will be included in the Invitation or be conveyed to you
in one or more separate written communications (collectively, the "Final
Communication"). The Invitation and the Final Communication may also contain
additional provisions which supplement or amend the terms of this Agreement as
they apply to the Offering.
The terms and conditions of this Agreement, as amended or supplemented by
the Invitation and the Final Communication, shall become effective with respect
to your participation in an Offering if we have received your Acceptance and if
we do not receive a written communication revoking your Acceptance prior to the
date and time specified in the Invitation or the Final Communication (your
unrevoked Acceptance after expiration of such date and time being hereinafter
referred to as your "Final Acceptance").
2. Underwriting Arrangements. In connection with each Offering, the
issuer, any other seller (a "Selling Securityholder") and any guarantor of the
Securities shall enter
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into an underwriting agreement (the "Underwriting Agreement") (with such
additions, modifications and deletions as we shall, acting as sole
representative or as lead representative of one or more other representatives of
the Underwriters, in our sole discretion deem appropriate) which we shall as
soon as practicable send to you (or make available for your review in our
office) or which shall have been filed with, and publicly available from, the
Securities and Exchange Commission (the "Commission"), with us acting either as
sole representative or as lead representative of one or more other
representatives of the underwriters named in the Underwriting Agreement (the
"Underwriters"). We, in either such capacity, and one or more other
representatives of the Underwriters as are named in the Invitation or the Final
Communication, as the case may be, are herein referred to as the
"Representatives". By your Final Acceptance, you agree and authorize us to agree
on your behalf to purchase, in accordance with the terms of the Underwriting
Agreement or any Inter-Syndicate Agreements, as the case may be, (a) the amount
of the Securities (the "Firm Securities") set forth opposite your name in the
Underwriting Agreement (which amount may exceed the amount set forth in the
Invitation or Final Communication by not more than 20% as a result of an
increase in the aggregate amount of the Securities or a reallotment of the
Securities among the Underwriters), exclusive of any Additional Securities (the
maximum amount of which, after a corresponding increase, will also be set forth
opposite your name therein), plus such amount of Securities, if any, which you
may become obligated to purchase pursuant to Section 15 hereof (the "Initial
Commitment"), plus (b) such amount of Additional Securities, if any, which you
may become obligated to purchase by reason of the exercise of the option
provided in the Underwriting Agreement, plus (c) the amount of Other Securities,
if any, which you may, subject to the limitation provided in Section 4 hereof,
become obligated to purchase by reason of purchases for your account made
pursuant to such Inter-Syndicate Agreements, less (d) such amount, if any, of
Securities as are contracted to be sold pursuant to any Delayed Delivery
Contracts ("Contract Securities") allocated to you in accordance with the last
paragraph of Section 5 hereof. The Securities which, after any such increase or
reduction of your Initial Commitment, you are obligated to purchase pursuant to
the Underwriting Agreement and such Inter-Syndicate Agreements are referred to
herein as "your Securities.
In the event that the Securities consist in whole or in part of debt
obligations maturing serially, the serial Securities being purchased by each
Underwriter pursuant to the Underwriting Agreement will consist, subject to
adjustment as provided in the Underwriting Agreement, of serial Securities of
each maturity in a principal amount which bears the same proportion to the
aggregate principal amount of serial Securities of such maturity to be purchased
by all the Underwriters as the respective principal amount of serial Securities
set forth opposite such Underwriter's name in the Underwriting Agreement bears
to the
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aggregate principal amount of the serial Securities to be purchased by all the
Underwriters.
3. Registration Statement and Prospectus. With respect to each Offering
of Securities, we shall either (i) provide you with the file numbers of the
registration statement and any additional registration statement pursuant to
Rule 462(b) under the Securities Act which are filed with the Commission with
respect to the Securities or (ii) as soon as practicable send to you (or make
available for your review in our office) a copy of such registration statement
and any such additional registration statement (other than any documents
incorporated by reference in either of the foregoing). Your Final Acceptance
shall constitute your acknowledgment that you are familiar with such
registration statement, as amended to the date of the Offering, including any
documents incorporated therein by reference and the forms of Underwriting
Agreement and indenture or other document describing the terms of the Securities
filed as exhibits thereto, with any such additional registration statement, as
amended to the date of the Offering, including any documents incorporated
therein by reference, with any preliminary prospectus, prospectus supplement,
prospectus, term sheet or abbreviated term sheet relating to the Securities
theretofore filed with the Commission and with the information to be set forth
in an amendment to such registration statement, any such additional registration
statement or a prospectus, prospectus supplement, term sheet or abbreviated term
sheet proposed to be filed with the Commission. Further, your Final Acceptance
shall constitute your representation that the information to be set forth in
such amendments, prospectus supplement, prospectus, term sheet or abbreviated
term sheet is correct and is not misleading insofar as it relates to you and
your consent to being named as an Underwriter therein. By your Acceptance, you
agree that, if requested by the Representatives, you will furnish a copy of any
amended preliminary prospectus, prospectus supplement, prospectus, term sheet or
abbreviated term sheet to each person to whom you shall have furnished a
previous preliminary prospectus, prospectus supplement, prospectus, term sheet
or abbreviated term sheet. By your Final Acceptance, you confirm that you have
delivered and agree that you will deliver all preliminary and final
prospectuses, all supplements thereto, and all term sheets and abbreviated term
sheets required for compliance with the provisions of Rule 15c2-8 (or any
successor provision) under the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
4. Authority and Compensation of Representatives. You authorize the
Representatives on your behalf (a) to execute and deliver the Underwriting
Agreement with the issuer, any Selling Securityholder and any guarantor of the
Securities with such changes therein as in their judgment will not be materially
adverse to the Underwriters (except as to the purchase price (unless the initial
offering price is to be determined by Formula Pricing) and the amount of your
Securities (except for increases
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in such amount permitted under Section 2 hereof)), (b) to execute and deliver
any Inter-Syndicate Agreements with the representatives or managers of such
other syndicate or syndicates (or a single underwriter), in the form that shall
have been filed with, and be publicly available from, the Commission or any such
other regulatory authority as we shall specify in the Invitation or that we
shall send to you as soon as practicable (or make available for your review in
our office), with such changes therein as in their judgment will not be
materially adverse to the Underwriters, (c) to exercise all the authority and
discretion vested in the Underwriters and in them by the provisions of the
Underwriting Agreement and any Inter-Syndicate Agreements, (d) to take all such
action as they in their discretion may deem necessary or advisable in order to
carry out the provisions of the Underwriting Agreement, of any Inter-Syndicate
Agreement and of this Agreement, and the sale and distribution of the
Securities, including the right to determine the terms of the proposed Offering,
the concession to Selected Dealers (as hereinafter defined) and the reallowance,
if any, to other dealers, the right to exercise any option in the Underwriting
Agreement relating to the purchase of Additional Securities and the right to
make any judgment relating to the satisfaction of the conditions to the
obligations of the Underwriters under the Underwriting Agreement or any Inter-
Syndicate Agreement, and (e) to determine all matters relating to the public
advertisement of the Securities.
You also authorize the Representatives on your behalf (a) to determine
whether to purchase, and, if such determination is made, to purchase, any Other
Securities for the account of the Underwriters pursuant to the terms of any
Inter-Syndicate Agreement and (b) to determine whether to sell, and, if such
determination is made, to sell, Securities for the account of the Underwriters
pursuant to any Inter-Syndicate Agreement. Any Other Securities purchased or
any Securities sold pursuant to any Inter-Syndicate Agreement shall be purchased
or sold, as the case may be, at the offering price then in effect for the
Securities less all or any part of the concession to Selected Dealers, all as
determined by the Representatives. In the event of the exercise by the
Representatives of an option to purchase any Other Securities or to sell any
Securities pursuant to any Inter-Syndicate Agreement, the Representatives shall
promptly so notify each Underwriter and advise each Underwriter of the number of
Other Securities to be purchased or the number of Securities to be sold. The
Representatives shall not, without your consent, make net purchases of Other
Securities for your account in excess of 20% of your Initial Commitment, except
as may be provided in the Invitation or Final Communication. In connection with
any Offering involving one or more Inter-Syndicate Agreements, you agree to be
bound by, and all offers to sell and sales by you of Securities shall be subject
to, such limitations on offers to sell and sales of Securities as may be
contained in the Invitation or Final Communication or in the Underwriting
Agreement or any Inter-Syndicate Agreement as executed and you
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further agree that any sales made by you to dealers shall be made only to such
dealers as agree, in their offers to sell and sales, to be bound by the same
limitations.
As compensation for the Representatives' services, you agree to pay to them
with respect to each Offering, and authorize them to charge your account with, a
management commission not in excess of such management fee as they shall advise
you in the Invitation or the Final Communication. If there is more than one
Representative, such compensation will be divided among the Representatives in
such proportions as they shall determine.
5. Public Offering of Securities. The sale of the Securities to the
public is to be made, as herein provided, as soon after the registration
statement relating to the Securities and any additional registration statement
relating to the Securities which may be filed with the Commission pursuant to
Rule 462(b) become effective as in the Representatives' judgment is advisable.
The purchase price to be paid by the Underwriters for the Securities and the
initial public offering price are to be determined by agreement between the
Representatives and the issuer. The Securities shall be first offered to the
public at the initial public offering price as so determined. The
Representatives will advise you by telex, telecopy, telegraph or telephone when
the Securities shall be released for offering, when the registration statement
and any additional registration statement relating to the Securities shall
become effective, the price at which the Securities are initially to be offered
and the date that payment for the Securities shall be made to the seller or
sellers pursuant to the Underwriting Agreement. You agree not to sell any of
the Securities until the Representatives have released them for that purpose.
You authorize the Representatives, after the initial public offering, to change
the public offering price, the concession and the reallowance if, in their sole
discretion, such action becomes desirable by reason of changes in general market
conditions or otherwise. The public offering price at the time in effect is
herein called the "Offering Price." After notice from the Representatives that
the Securities are released for public sale, you will offer to the public in
conformity with the provisions hereof and with the terms of the Offering set
forth in the prospectus those Securities as the Representatives advise you are
not reserved.
In the case of a Delayed Delivery Offering, you authorize the
Representatives to make all arrangements for the solicitation of offers to
purchase Securities from the issuer pursuant to Delayed Delivery Contracts. To
the extent that the Representatives in their sole discretion shall determine,
Contract Securities which have been directed by institutional investors to
particular Underwriters or which were contracted for pursuant to arrangements
made by particular Underwriters through them shall be allocated to such
Underwriters and all other Contract Securities shall be allocated to the
accounts of the respective Underwriters as nearly as practicable in proportion
to
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their respective Initial Commitments; provided, however, that the amount of
Contract Securities so allocated to any Underwriter shall not exceed such
Underwriter's Initial Commitment, and any Contract Securities which would
otherwise have been allocated to such Underwriter (the "Excess Contract
Securities") shall be allocated among the other Underwriters in such manner as
the Representatives shall, in their sole discretion, determine to be equitable
and practicable. The Representatives may pay a commission to any Selected
Dealer for services rendered in respect of Contract Securities.
6. Offering to Dealers and Retail Sales. You authorize the
Representatives to reserve for offering and sale, and on your behalf to sell, to
retail purchasers (such sales being herein called "Retail Sales") and to dealers
selected by them (such dealers, among whom any Underwriter may be included,
being herein called "Selected Dealers") all or any part of your Securities as
they, in their sole discretion, shall determine. Such sales, if any, shall be
made (a) in the case of Retail Sales, at the Offering Price, and (b) in the case
of sales to Selected Dealers, at the Offering Price less such concession or
concessions as the Representatives, in their sole discretion, shall determine.
Except for such sales as are designated by a purchaser to be for the account of
a particular Underwriter or Selected Dealer, any sales to Selected Dealers made
for your account shall be as nearly as practicable in the ratio that the
Securities reserved for your account for offering to Selected Dealers bears to
the aggregate of all Securities of all Underwriters so reserved.
The Representatives agree to notify you promptly on the date of the public
offering as to the amount of Securities, if any, which you may retain for direct
sale by you. Prior to the termination of the provisions referred to in Section
16 hereof, the Representatives may reserve for offering and sale as hereinbefore
provided any Securities theretofore retained by you remaining unsold and you
may, with their consent, retain any Securities theretofore reserved by them
remaining unsold.
You agree that, from time to time prior to the termination of the
provisions referred to in Section 16 hereof, you shall furnish to the
Representatives such information as they may request in order to determine the
amount of Securities purchased by you under the Underwriting Agreement which
then remain unsold, and you shall upon their request sell to them for the
account of any Underwriter as many of such unsold Securities as they may
designate at the Offering Price, less all or any part of the concession to
Selected Dealers as they in their sole discretion, shall determine. The
provisions of Section 7 hereof shall not be applicable in respect of any such
sale.
You authorize the Representatives to determine the form and manner of any
communications or agreements with Selected Dealers. In the event that there
shall be any agreements with Selected Dealers, the Representatives are
authorized to act as manager
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thereunder and they agree, in such event, to be governed by the terms and
conditions of such agreements.
It is understood that any Selected Dealer to whom an offer may be made as
hereinbefore provided shall be actually engaged in the investment banking or
securities business and shall be either (i) a member in good standing of the
National Association of Securities Dealers, Inc. (the "NASD") or (ii) a dealer
with its principal place of business located outside the United States, its
territories and its possessions and not registered as a broker or dealer under
the Exchange Act, who agrees not to make any sales within the United States, its
territories or its possessions or to persons who are nationals thereof or
residents therein. Each Selected Dealer shall agree to comply with the
provisions of Section 24 of Article III of the Rules of Fair Practice of the
NASD, and each foreign Selected Dealer who is not a member of the NASD also
shall agree to comply with the NASD's interpretation with respect to free-riding
and withholding, to comply, as though it were a member of the NASD, with the
provisions of Sections 8 and 36 of Article III of such Rules of Fair Practice,
and to comply with Section 25 of Article III thereof as that Section applies to
a non-member foreign dealer. The several Underwriters may allow, and the
Selected Dealers, if any, may re-allow, such concession or concessions as the
Representatives may determine from time to time on sales of Securities to any
qualified dealer, all subject to the Rules of Fair Practice of the NASD.
The Representatives, and any of the several Underwriters with their prior
consent, may make purchases or sales of Securities from or to any of the other
Underwriters, at the offering Price less all or any part of the gross spread,
and from or to any of the Selected Dealers at the Offering Price less all or any
part of the concession to Selected Dealers.
Upon the request of the Representatives, you will advise them of the
identity of any dealer to whom you allow such a discount and any Underwriter or
Selected Dealer from whom you receive such a discount.
7. Repurchase in the Open Market. Any Securities sold by you (otherwise
than through the Representatives) which shall be contracted for or purchased in
the open market by the Representatives on behalf of any Underwriter or
Underwriters shall be repurchased by you on demand at a price equal to the cost
of such purchase plus commissions and taxes on redelivery. Any Securities
delivered on such repurchase need not be the identical Securities originally
sold by you. In lieu of delivery of such Securities to you, the Representatives
may sell such Securities in any manner for your account and charge you with the
amount of any loss or expense or credit you with the amount of any profit, less
any expense, resulting from such sale, or charge your account with an amount not
in excess of the concession to Selected Dealers.
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8. Delivery and Payment. Upon the request of the Representatives, you
shall deliver to them, as and at such time and place as they direct in the
Invitation or Final Communication, a certified or official bank check in such
clearing house funds as indicated therein, as payment for the Securities to be
purchased by you under the Underwriting Agreement in an amount equal to the
Offering Price for such Securities plus any accrued interest, amortization of
original issue discount or accumulated dividends required to be paid to the
seller or sellers pursuant to the Underwriting Agreement less the concession to
Selected Dealers (or, in the case of Other Securities to be purchased by you
under any Inter-Syndicate Agreement, the price specified in such Inter-Syndicate
Agreement). Such payment shall be made in such form and at such time and place
as may be specified in such request, and you authorize the Representatives to
make payment for your Securities against delivery thereof for your account
hereunder. You authorize the Representatives to accept delivery of your
Securities in definitive form upon exchange of any Securities in temporary form
received by them on the Closing Date pursuant to the preceding sentence. If you
are a member of or clear through a member of The Depository Trust Company
("DTC"), the Representatives may, in their discretion, deliver your Securities
through the facilities of DTC.
The Representatives shall remit to you, as promptly as practicable, the
amounts received by them from Selected Dealers and retail purchasers as payment
in respect of Securities sold by them for your account pursuant to Section 6
hereof for which payment has been received. Securities purchased by you under
the Underwriting Agreement and not reserved or sold by the Representatives for
your account pursuant to Section 6 hereof shall be delivered to you as promptly
as practicable after receipt by them. Any Securities purchased by you and so
reserved which remain unsold at any time prior to the settlement of accounts
hereunder may, in the Representatives' discretion, and shall, upon your request,
be delivered to you, but, until termination of the Selected Dealer agreements
pursuant to their terms, such delivery shall be for carrying purposes only. In
case any Securities reserved for sale in Retail Sales or to Selected Dealers
shall not be purchased and paid for in due course as contemplated hereby, you
agree (a) to accept delivery when tendered by the Representatives of any
Securities so reserved for your account and not so purchased and paid for, and
(b) in case you shall have received payment from the Representatives in respect
of any such Securities, to reimburse them on demand for the full amount which
they shall have paid you in respect of such Securities.
In the case of a Delayed Delivery Offering, the commission payable by the
issuer in respect of any Contract Securities allocated to you pursuant to the
last paragraph of Section 5 hereof shall be credited (after deducting any
commissions paid by the Representatives to any Selected Dealer for services
rendered
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in respect of such Contract Securities) to your account and, in addition, you
shall be treated as a Selected Dealer in respect of your Excess Contract
Securities, if any.
In the event of your failure to tender payment for Securities as provided
in the Underwriting Agreement, the Representatives shall have the right under
the provisions thereof to arrange for other persons, who may include them and
any other Underwriter, to purchase such Securities which you had agreed to
purchase, but without relieving you from liability for your default.
9. Authority to Borrow. You authorize the Representatives to advance
their funds for your account (charging current interest rates) and to arrange
loans for your account or the account of the Underwriters for the purpose of
carrying out this Agreement and the Underwriting Agreement, and in connection
therewith to execute and deliver any notes or other instruments and to hold or
pledge as security therefor all or any part of your Securities and Securities
purchased hereunder for your account. Any lender is hereby authorized to accept
the Representatives' instructions in all matters relating to such loans. Any
part of your Securities and Securities so held by the Representatives may be
delivered to you for carrying purposes and, if so delivered, will be redelivered
to them, upon demand.
10. Allocation of Expenses and Liability. You authorize the
Representatives to charge your account with and you agree to pay (a) all
transfer taxes on sales made by the Representatives for your account, except as
herein otherwise provided, and (b) your proportionate share (based on your
Initial Commitment) of all expenses incurred by the Representatives in
connection with the purchase, carrying, sale and distribution of the Securities
(including, without limitation, any expenses to be borne by the Underwriters in
accordance with any Inter-Syndicate Agreements) and all other expenses arising
under the terms of the Underwriting Agreement, this Agreement or any Inter-
Syndicate Agreements. The Representatives' determination of all such expenses
and your allocation thereof shall be final and conclusive. The Representatives
may at any time make partial distributions of credit balances or call for
payment of debit balances. Funds for your account at any time in the
Representatives' hands may be held in their general funds without accountability
for interest. As soon as practicable after such time as this Agreement shall no
longer be applicable to an Offering, the net credit or debit balance in your
account, after proper charge and credit for all interim payments and receipts,
shall be paid to or paid by you, provided that the Representatives may establish
such reserves as they, in their sole discretion, shall deem advisable to cover
possible additional expenses chargeable to the several Underwriters.
Notwithstanding any settlement, you will remain liable for any taxes on
transfers for your account and for your proportionate share (based on your
Initial Commitment) of all expenses and
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liabilities that may be incurred for the accounts of the Underwriters.
11. Liability for Future Claims. Neither any statement by the
Representatives of any credit or debit balance in your account nor any
reservation from distribution to cover possible additional expenses relating to
the Securities shall constitute any representation by them as to the existence
or nonexistence of possible unforeseen expenses or liabilities of or charges
against the several Underwriters. Notwithstanding the distribution of any net
credit balance to you or after such time as this Agreement shall no longer be
applicable to an Offering or both, you shall be and remain liable for, and will
pay on demand, (a) your proportionate share (based on your Initial Commitment)
of all expenses and liabilities which may be incurred by or for the accounts of
the Underwriters, or any of them, based on the claim that the Underwriters (and
any underwriters, representatives or managers party to any Inter-Syndicate
Agreements) constitute an association, unincorporated business, partnership or
any separate entity, and (b) any transfer taxes paid after such settlement on
account of any sale or transfer for your account.
12. Stabilization and Over-Allotment. You authorize the Representatives
on your behalf and for your account, prior to the time that this Agreement shall
cease to be applicable to an Offering, in their discretion, and without
obligating them to do so, to buy and sell Securities, or any other securities of
the issuer or any guarantor of the Securities named in the Invitation or the
Final Communication, in the open market or otherwise for either long or short
account, on such terms and at such prices as they may determine and, in
arranging for sales, to over-allot and cover such over-allotments, provided that
at no time shall your net commitment under authority of this Section, either for
long or short account, exceed an amount equivalent to 20% of the aggregate
initial offering price of your Securities to be purchased by you under the
Underwriting Agreement. The Representatives may cover any short position
incurred under the preceding sentence by purchase of Additional Securities
pursuant to the option which may be contained in the Underwriting Agreement or
otherwise. All purchases, sales and over-allotments under authority of this
Section 12 shall be for the accounts of each of the several Underwriters as
nearly as practicable in proportion to their respective Initial Commitments.
You agree to take up at cost on demand any Securities so purchased for your
account and to deliver on demand any Securities so sold or over-allotted for
your account. You also authorize the Representatives to deliver your
Securities, and any other Securities purchased by them for your account pursuant
to this Section 12, against sales made by the Representatives for your account
pursuant to any provision of this Agreement.
In the event that the Representatives effect any stabilizing purchases
pursuant to this Section 12, they will notify each Underwriter promptly of the
date and time when the first
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stabilizing purchase is effected and the date and time when stabilizing is
terminated. You agree that if you effect any stabilizing purchases, you will,
not later than three business days following the day on which any such
stabilizing purchase is effected, notify the Representatives of the price, date
and time at which such stabilizing purchase was effected and you will promptly
notify them of the date and time when such stabilizing was terminated. You
authorize the Representatives to file with the Commission all notices and
reports which may be required as a result of any transactions made pursuant to
this Section 12.
You agree to advise the Representatives, from time to time upon their
request during the term of this Agreement with respect to an Offering, of the
amount of Securities retained by you or purchased by you from other Underwriters
and Selected Dealers remaining unsold, and you will, upon their request, release
to them for the accounts of one or more of the several Underwriters, such amount
of Securities as they may designate at such price, not less than the net price
to Selected Dealers nor more than the public offering price, as they may
determine.
If, pursuant to the provisions of the first paragraph of this Section 12
and prior to such time as this Agreement shall cease to be applicable to an
Offering (or such earlier date as the Representatives may have determined on
notice to the Underwriters), the Representatives purchase or contract to
purchase any Securities which were retained by or released to you for direct
sale, which Securities were theretofore not effectively placed for investment by
you, you authorize them in their discretion either to charge your account with
an amount equal to the concession to Selected Dealers with respect thereto or to
require you to repurchase such Securities at a price equal to the total cost of
such purchase, including commissions, if any, and transfer tax on the
redelivery. Securities delivered on such repurchase need not be the identical
Securities originally purchased by and delivered to you.
Upon such time as this Agreement shall cease to be applicable to an
Offering, the Representatives are authorized in their discretion, in lieu of
delivering to the several Underwriters any Securities then held for their
respective accounts pursuant to this Section 12, to sell such Securities for the
accounts of each of the Underwriters at such price or prices as they may
determine and debit or credit your account for the loss or profit resulting from
such sale.
13. Open Market Transactions. You agree that you will not make bids or
offers, or make or induce purchases or sales for your own account or the
accounts of customers, in the open market or otherwise, either before or after
the purchase of the Securities and for either long or short account, of any
security of the same class or series, or any right to purchase any such security
except (i) as provided in this Agreement, the Underwriting Agreement and the
Selected Dealer agreements or
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otherwise approved by the Representatives, (ii) in brokerage transactions not
involving solicitation of the customer's order, and (iii) in connection with
option and option-related transactions that are consistent with the "no-action"
position set forth in Release 17609 of the Commission under the Exchange Act.
You further agree that you will not lend, either before or after the purchase of
the Securities, to any customer, Underwriter, Selected Dealer or to any other
securities broker or dealer any Securities. Prior to the completion (as defined
in Rule 10b-6 under the Exchange Act) of your participation in the Offering, you
will otherwise comply with Rule 10b-6.
14. Blue Sky. Prior to the initial offering by the Underwriters, the
Representatives will inform you as to the states and other jurisdictions under
the respective securities or blue sky laws of which it is believed that the
Securities have been qualified for sale or are exempt from such qualification,
but they do not assume any responsibility or obligation as to the accuracy of
such information or as to the right of any Underwriter or dealer to offer or
sell the Securities in any state or other jurisdiction. The Representatives
agree to file or cause to be filed, on behalf of the Underwriters, a Further
State Notice in respect of the Securities pursuant to Article 23-A of the
General Business Law of the State of New York, if necessary.
15. Default by Underwriters. Default by one or more Underwriters in
respect of their obligations under this Agreement, the Underwriting Agreement or
any Inter-Syndicate Agreement, shall not release you from any of your
obligations or in any way affect the liability of any defaulting Underwriter to
the other Underwriters for damages resulting from such default. In the event of
such default by one or more Underwriters, you agree (subject to any limitations
contained in the Underwriting Agreement, any Inter-Syndicate Agreement or any
Selected Dealer agreements) to assume your proportionate share, based upon the
proportion that the amount of the Securities set forth in the Underwriting
Agreement opposite your name bears to the aggregate amount of the Securities set
forth in the Underwriting Agreement opposite the names of all non-defaulting
Underwriters, of the obligations of such Underwriter without relieving such
Underwriter of its liability therefor.
In the event of default by one or more Underwriters in respect of their
obligations under this Agreement to take up and pay for any Securities purchased
by the Representatives for their respective accounts pursuant to Section 12
hereof, or to deliver any such Securities sold or over-allotted by the
Representatives for their respective accounts pursuant to any provision of this
Agreement, and to the extent that arrangements shall not have been made by the
Representatives for other persons to assume the obligations of such defaulting
Underwriter
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or Underwriters, each non-defaulting Underwriter shall assume its proportionate
share of the aforesaid obligations of each such defaulting Underwriter without
relieving any such defaulting Underwriter of its liability therefor.
16. Termination and Amendment. This Agreement may be terminated by either
party hereto upon five business days written notice to the other party;
provided, however, that with respect to any offering, if we receive any such
notice from you after your Final Acceptance, this Agreement shall remain in full
force and effect as to such Offering and shall terminate with respect to such
offering and all previous Offerings in accordance with the provisions of the
next paragraph of this Section 16.
Section 5, the second paragraph and the first sentence of the third
paragraph of Section 6, Section 7, the first sentence of Section 12 and Section
13 hereof will cease to be applicable to your participation in an Offering at
the close of business on the 30th calendar day after the Securities are first
released for public offering, unless extended or sooner terminated as
hereinafter provided. The Representatives may extend such provisions, or any of
them, for a period not to exceed 30 additional calendar days by notice to you to
such effect. The Representatives may terminate any of such provisions at any
time by notice to you, and they may terminate all such provisions with respect
to an offering at any time by notice to you to the effect that the offering
provisions with respect to an Offering of this Agreement will cease to be
applicable to such Offering.
This Agreement may be supplemented or amended by us by notice to you by
written communication and, except for supplements or amendments set forth in an
Invitation or Final Communication, any such supplement or amendment to this
Agreement shall be effective with respect to any Offering to which this
Agreement applies after the date of such supplement or amendment. Each
reference to "this Agreement" herein shall, as appropriate, be to this Agreement
as amended and supplemented.
17. General Position of the Representatives. In taking action under this
Agreement, any Underwriting Agreement or any Inter-Syndicate Agreements, the
Representatives shall act only as agent of the several Underwriters. The
Representatives' authority shall include the taking of such action as they may
deem advisable in respect of all matters pertaining to any and all offers and
sales of the Securities, including the right to make any modifications which
they consider necessary or desirable in the arrangements with Selected Dealers
or others. The Representatives shall be under no liability for or in respect of
the value of the Securities or the validity or the form thereof, the
registration statement, any additional registration statement which may be filed
with the Commission pursuant to Rule 462(b) of the Securities Act, the
prospectus, any term sheets, any abbreviated term sheets or agreements or other
instruments executed by the issuer or others; or for or in respect of the
delivery of the Securities; or for the performance by the issuer, any Selling
Securityholder, or others of any agreement on its or
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their part; nor shall we as Representatives or otherwise be liable under any of
the provisions hereof or for any matters connected herewith, except for want of
good faith, and except for any liability arising under the Securities Act; and
only obligations expressly assumed by us as Representatives herein shall be
implied from this Agreement. In representing the Underwriters hereunder, we
shall act as the Representatives of each of them respectively. Nothing herein
contained shall constitute the several Underwriters partners with us or with
each other or with any underwriters, representatives or managers party to any
Inter-Syndicate Agreements, or render any Underwriter liable for the commitments
of any other Underwriter or any underwriters, representatives or managers party
to any Inter-Syndicate Agreements, except as otherwise provided in Section 15
hereof. If the Underwriters shall be deemed to constitute a partnership for
federal income tax purposes, it is the intent of each Underwriter to be excluded
from the application of Subchapter K, Chapter 1, Subtitle A, of the Internal
Revenue Code of 1986, as amended. You shall elect to be so excluded and agree
not to take any position inconsistent with such election. You authorize us, in
our discretion, to execute and file on your behalf such evidence of election as
may be required by the Internal Revenue Service. The commitments and liabilities
of each of the several Underwriters are several in accordance with their
respective Initial Commitments and are not joint.
18. (a) Indemnity. You agree to indemnify and hold harmless us and each
other Underwriter, the officers, directors, partners, employees, agents and
counsel of us and each other Underwriter and each person, if any, who controls
us and any such other Underwriter within the meaning of Section 15 of the
Securities Act or Section 20(a) of the Exchange Act, and to reimburse our and
their expenses, to the extent and upon the terms that you agree to indemnify and
hold harmless the issuer and any Selling Securityholder and to reimburse their
expenses as set forth in the Underwriting Agreement.
(b) Claims Against Underwriters. You will pay, upon the
Representatives' request, as contribution, your proportionate share, based upon
the proportion that the amount of your Securities bears to the aggregate amount
of the Securities to the Offering as set forth in the Underwriting Agreement
(the "Proportionate Share"), of any loss, claim, damage or liability, joint or
several, paid or incurred by any Underwriter (including the Representatives,
individually or as representatives of the Underwriters) to any person other than
an Underwriter (including amounts paid by an Underwriter as contribution),
arising out of or based upon (i) an untrue statement or alleged untrue statement
of a material fact contained in a registration statement, any additional
registration statement which may be filed with the Commission pursuant to Rule
462(b) under the Securities Act or any amendment to either of the foregoing or
arising out of or based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
-15-
the statements therein not misleading, (ii) an untrue statement or alleged
untrue statement of a material fact contained in any preliminary prospectus,
prospectus, prospectus supplement, term sheet, abbreviated term sheet,
preliminary offering circular, proof of an offering circular, offering circular,
amendment or supplement to any of the foregoing, or any other selling or
advertising material used with the consent of the Representatives by the
Underwriters in connection with the sale of the Securities, or arising out of or
based upon the omission or alleged omission to state therein a material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading and (iii) any act or omission to act
or any alleged act or omission to act by the Representatives, individually or as
representatives of the Underwriters, or by the Underwriters, as a group but not
individually, in connection with any transaction contemplated by this Agreement
or undertaken in preparing for the purchase, sale and delivery of the
Securities; and each Underwriter will pay its Proportionate Share of any legal
or other expenses reasonably incurred by the Representatives, or with their
consent, in connection with investigating or defending any such loss, claim,
damage or liability, or any action in respect thereof. In determining the amount
of any Underwriter's obligation under this paragraph, appropriate adjustment may
be made by the Representatives to reflect any amounts received by any one or
more Underwriters, pursuant to the Underwriting Agreement or otherwise, in
respect of the claim upon which such obligation is based. In respect of any
claim there shall be credited against the amount of any Underwriter's obligation
under this paragraph any loss, damage, liability or expense that is paid or
incurred by such Underwriter as a result of such claim being asserted against
it, and, if such loss, damage, liability or expense is paid or incurred by such
Underwriter subsequent to any payment by it pursuant to this paragraph,
appropriate provision shall be made to effect such credit, by refund or
otherwise. If any claim to which the provisions of this paragraph would be
applicable is asserted, the Representatives may take such action in connection
therewith as they deem necessary or desirable, including retention of counsel
for the Underwriters and separate counsel for any particular Underwriter or
group of Underwriters, and the fees and disbursements of any counsel so retained
by the Representatives shall be included in the amounts of the Underwriters'
obligations under this paragraph. The Representatives may consent to being named
as the representatives of a defendant class of underwriters. Any Underwriter may
elect to retain at its own expense its own counsel and, on advice of such
counsel and with the Representatives' consent, may settle or consent to the
settlement of any such claim. The Representatives may settle or consent to the
settlement of any such claim, on advice of counsel retained by them, with the
approval of a majority in interest of the Underwriters. Whenever any Underwriter
receives notice of the assertion of any claim to which the provisions of this
paragraph would be applicable, such Underwriter shall give prompt notice thereof
to the
-16-
Representatives. Whenever the Representatives receive notice of the assertion
of any such claim, they shall give prompt notice thereof to each Underwriter.
The Representatives also shall furnish each Underwriter with periodic reports,
at such times as they deem appropriate, of the status of any such claim and the
action taken by them in connection therewith. In the event of the failure of
any Underwriter to fulfill its obligations under this paragraph, such
obligations may be charged against each nondefaulting Underwriters, without
relieving such defaulting Underwriter of its liability therefor. In determining
amounts payable pursuant to this paragraph, any loss, claim, damage, liability
or expense paid or incurred, and any amount received, by any person controlling
any Underwriter within the meaning of Section 15 of the Securities Act or
Section 20(a) of the Exchange Act shall be deemed to have been paid or incurred
or received by such Underwriter to the extent such amount has been paid or
incurred or received by reason of such control relationship. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
19. Capital Requirements. Your Acceptance will confirm that the
incurrence by you of your obligations under this Agreement and the Underwriting
Agreement will not place you in violation of the net capital requirements of
Rule 15c3-1 under the Exchange Act, of the NASD, if you are a member thereof, or
of any applicable rules relating to capital requirements of any securities
exchange to which you are subject.
20. Miscellaneous. Any notice hereunder from us to you or from you to us
shall be deemed to have been duly given if sent by registered mail, telecopy,
telegram or telex, to you at your address as set forth on the signature page of
this Agreement, or to us at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Syndicate Department.
You understand that we are a member in good standing of the NASD. You
hereby confirm that you are actually engaged in the investment banking or
securities business and are either (i) a member in good standing of the NASD or
(ii) a dealer with its principal place of business located outside the United
States, its territories and its possessions and not registered as a broker or
dealer under the Exchange Act who agrees not to make any sales within the United
States, its territories or its possessions or to persons who are nationals
thereof or residents therein (except that you may participate in sales to
Selected Dealers and others under Section 6 of this Agreement). You hereby
agree to comply with the provisions of Section 24 of Article III of the Rules of
Fair Practice of the NASD, and, if you are a foreign dealer and not a member of
the NASD, you also hereby agree to comply with the NASD's interpretation with
respect to free-riding and withholding and to comply, as though you were a
member of the NASD, with the provisions of Section 8
-17-
and 36 of Article III of such Rules of Fair Practice, and to comply with Section
25 of Article III thereof as that Section applies to a non-member foreign
dealer. In connection with sales and offers to sell Securities made by you
outside the United States, its territories and possessions (i) you will either
furnish to each person to whom any such sale or offer is made a copy of the then
current preliminary prospectus, together with any then current term sheet or
abbreviated term sheet, or the prospectus, as the case may be, or inform such
person that such preliminary prospectus and any such term sheet or abbreviated
term sheet or prospectus will be available upon request, and (ii) you will
furnish to each person to whom any such sale or offer is made such prospectus,
advertisement or other offering document containing information relating to the
Securities or the issuer as may be required under the law of the jurisdiction in
which such sale or offer is made. Any prospectus, term sheet, abbreviated term
sheet, advertisement or other offering document furnished by you to any person
in accordance with the preceding sentence and any such additional offering
material as you may furnish to any person (x) shall comply in all respects with
the law of the jurisdiction to which it is so furnished, (y) shall be furnished
at your sole risk and expense and (z) shall not contain information relating to
the Securities or the issuer or any Selling Securityholder which is inconsistent
in any respect with the information contained in the then current preliminary
prospectus or the prospectus, as the case may be.
Your Acceptance will confirm that the information that you have given or
are deemed to have given in response to the Master Underwriters' Questionnaire,
attached hereto as Exhibit A (which information will be furnished to the issuer
for use in and otherwise in connection with the registration statement, any
additional registration statement which may be filed with the Commission
pursuant to Rule 462(b) under the Securities Act, the prospectus, any term sheet
or any abbreviated term sheet) is correct. Your acceptance will also confirm
that you authorize us (i) to furnish the information that you have given or are
deemed to have given in response to the Master Underwriters' Questionnaire to
appropriate regulatory authorities and (ii) to make appropriate representations
based on such information to such regulatory authorities. You will notify us
promptly of any development which makes untrue or incomplete any information
that you have given or are deemed to have given in response to the Master
Underwriters' Questionnaire before such time as the terms of this Agreement
(other than as set forth in Section 16 hereof) cease to be applicable to an
Offering.
You agree that, if you are advised by the Representatives that the issuer
was not, immediately prior to the filing of the registration statement, subject
to the reporting requirements of Section 13(a) or 15(d) of the Exchange Act, you
will not, without their consent, sell any Securities to an account over which
you exercise discretionary authority.
-18-
Unless you have promptly notified us in writing otherwise, your name as it
should appear in any prospectus (or any supplement thereto) and your address are
set forth on the signature page hereof.
Please confirm by signing and returning to us the enclosed copy of this
Agreement that your Acceptance or Final Acceptance, as the case may be, with
respect to an Offering shall constitute (a) your acceptance of and agreement to
the terms and conditions of this Agreement (as supplemented and amended pursuant
to Section 16 hereof), together with and subject to any supplementary terms and
conditions contained in the Invitation, the Final Communication and any other
written communication from the Representatives in connection with such Offering,
all of which shall constitute a binding agreement between you and us as
Representatives of the Underwriters and among you and the Underwriters, (b)
confirmation that your representations and warranties set forth in this
Agreement are true and correct as of the times or for the periods specified
therein and that your agreements set forth in this Agreement have been and will
be performed by you to the extent and at the times required thereby and (c)
acknowledgment of your familiarity with the offering documents, as set forth in
Section 3 hereof, with respect to such Offering.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
-19-
Please confirm that the foregoing correctly states the understanding
between us by signing and return to us a counterpart hereof.
Very truly yours,
XXXXXX XXXX LLC
By: _______________________
Confirmed as of the date
first above written:
_________________________
(NAME OF UNDERWRITER)
By:______________________
Title:
(If signer is not an officer
or partner, please attach
evidence of authorization.)
Address: ___________________________
___________________________
___________________________
-20-
Exhibit A
MASTER UNDERWRITERS' QUESTIONNAIRE
----------------------------------
The terms used and not otherwise defined herein shall have the meanings
assigned thereto in the Master Agreement Among Underwriters, dated October 1,
1992, between you and Xxxxxx Xxxx LLC. Reference will be made to this Master
Underwriters' Questionnaire in each Invitation or Final Communication described
in Section 1 of the Master Agreement Among Underwriters received by you from
Xxxxxx Xxxx LLC in connection with offerings of securities in which Xxxxxx Xxxx
LLC is acting as sole or lead representative of the several Underwriters. Your
Acceptance of any such Invitation should respond to this Master Underwriters'
Questionnaire.
Except as indicated in your Acceptance with respect to the Securities:
(1) neither you nor any of your directors, officers or partners have
(nor have you or they had within the last three years) a material
relationship (as "material" is defined in Regulation C under the Securities
Act) with the issuer, its parent (if any), any other Selling Securityholder
or any guarantor, nor are you an affiliate of (within the meaning of the
By-laws of the NASD), controlled by, controlling or under common control
with the issuer;
(2) neither you nor any of your directors, officers or partners,
separately or as a group, owns of record or beneficially more than 5% of
any class of voting securities of the issuer, its parent (if any), any
other Selling Securityholder or any guarantor.
(3) if the Securities are to be issued under an indenture to be
qualified under the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"):
(a) neither you nor any of your directors, officers or partners
is an affiliate (as "affiliate" is defined in Rule 0-2 under the Trust
Indenture Act) of the Trustee or its parent (if any) and 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 yours (as such terms are defined in
the Trust Indenture Act or in the relevant instructions to Form T-1
thereunder);
(b) neither you nor any of your directors, partners or executive
officers beneficially owned, as of the date specified in Item 7 on
Form T-1 or now own, separately or as a group more than 1% of the
outstanding shares of any class of voting securities of the Trustee or
its parent (if any); and
(c) if you are a corporation, you do not have outstanding nor
have you assumed or guaranteed any securities issued otherwise than in
your present corporate name, and neither the Trustee nor its parent
(if any) is a holder of such securities;
(4) other than as is, or is to be, stated in the registration
statement, the Master Agreement Among Underwriters, the Underwriting
Agreement and the Xxxxxx Xxxx Selected Dealer Agreement relating to the
proposed offering, you do not know or have reason to believe that (a) there
are any discounts or commissions to be allowed or paid to underwriters or
any other items that would be deemed by the NASD to constitute underwriting
compensation for purposes of the NASD's Rules of Fair Practice, (b) there
are any discounts or commissions to be allowed or paid to dealers,
including any cash, securities, contracts or other consideration to be
received by any dealer in connection with the sale of the Securities, (c)
there is an intention to over-allot or (d) the price of any security may be
stabilized to facilitate the offering of the Securities.
(5) any proposed commitment you may make to purchase Securities will
not result in a violation of the financial responsibility requirements of
Section 15(c)(3) of the Exchange Act or the rules and regulations
thereunder, including Rule 15c3-1, or any provisions of the applicable
rules of the NASD or of any securities exchange to which you are subject or
of any restrictions imposed upon you by the NASD or any such exchange;
(6) neither you nor any related person (as defined by the NASD) has
(a) purchased any warrants, options or other securities of the issuer
within the preceding 12 months or (b) had any other dealings with the
issuer within the preceding 12 months as to which documents or other
information is required to be furnished to the NASD, and except as stated
in the registration statement relating to the Securities, as such may have
been or be amended, you have no knowledge of any private placement of the
issuer's Securities within the preceding 18 months; and
(7) you have not prepared nor had prepared for you any report or
memoranda for external use by you in connection with the proposed offering
of the Securities, and if the registration statement relating to the
Securities is on Form S-1, you have not prepared any engineering,
management or similar reports or memoranda relating to broad aspects of the
business, operations or products of the issuer within the past 12 months
(except for reports solely comprised of recommendations to buy, sell or
hold the securities of the
-2-
issuer which recommendations have not changed within the past six months).
(If any such report or memorandum has been prepared, furnish to Xxxxxx Xxxx
LLC (a) three copies thereof and (b) a statement as to the actual or
proposed use, identifying (i) each class of persons (institutional mailing
lists, retail clients, etc.) which has received or will receive such
material, (ii) the number of copies distributed to each such class and
(iii) the period of distribution.
-3-
AMENDMENT TO MASTER AGREEMENT AMONG UNDERWRITERS
Please be advised that effective as of March 4, 1997 the Xxxxxx Xxxx
Master Agreement Among Underwriters dated January 2, 1996 is hereby amended to
delete Section 13 in its entirety and to substitute the following in its place:
13. Open Market Transactions. You agree that you will not make bids or
offers, or make or induce purchases or sales for your own account or the
accounts of customers, in the open market or otherwise, either before or after
the purchase of the Securities and for either long or short account, of any
"covered security" (as defined below in this Section 13), except (i) as provided
in the applicable Final Communication, this Agreement, the Underwriting
Agreement and the Selected Dealer agreements or otherwise approved by the
Representatives, (ii) in brokerage transactions not involving solicitation of
the customer's order, (iii) in basket transactions permitted under Rule
101(b)(6) of Regulation M under the Securities Act and the Exchange Act, (iv) in
transactions consisting of the conversion, exchange or exercise of derivative
securities owned by you, and the sale of the securities obtained through such
conversion, exchange or exercise, (v) the delivery of securities owned by you
upon the exercise of any option written by you, and (vi) in passive market
making transactions permitted under Rule 103 of Regulation M. You further agree
that you will not lead any Securities, either before or after the purchase of
the Securities, to any customer, Underwriter, Selected Dealer or to any other
Securities broker or dealer. Prior to the completion (as defined in Regulation
M) of your participation in the Offering, you will otherwise comply with
Regulation M.
The term "covered security" means (a) the Securities and (b) any
security into which the Securities may be converted, exchanged, or exercised or
which, under the terms of the Securities, may in whole or significant part,
determine the value of the Securities.
