EXHIBIT h.3
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
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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.
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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
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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
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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
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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.
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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
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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
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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
10
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.
11
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
12
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
13
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.
14
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,
15
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
16
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
17
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,
18
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
19
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:
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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.
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(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
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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
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representative" of ours (as those terms are defined in the Trust Indenture
Act of 1939 or in the relevant instructions to Form T-1). We and our
directors, partners, and executive officers, taken as a group, did not on
the date specified in the Invitation Wire, and do not, own beneficially 1%
or more of the shares of any class of voting securities of the Trustee or
of its parent, if any. If we are a corporation, we do not have outstanding
and have not assumed or guaranteed any securities issued otherwise than in
our present corporate name.
(13) (If the Issuer is a public utility:) We are not a "holding
company" or a "subsidiary company" or an "affiliate" of a "holding
company" or of a "public-utility company", each as defined in the Public
Utility Holding Company Act of 1935.
(14) If we are, or we are affiliated with, a U.S. or non-U.S. bank,
we hereby represent that our participation in the offering of the
Securities on the terms contemplated in the applicable AAU and the
proposed Underwriting Agreement does not contravene any U.S. or state
banking law restricting the exercise of securities powers in the United
States.
Capitalized terms used but not defined herein shall have the
respective meanings given to them in the applicable AAU.
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