EXHIBIT H.4
S
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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC. ("▇▇▇▇▇▇▇ ▇▇▇▇▇
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 "▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇. 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
2
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.
3
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
4
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
5
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
6
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.
7
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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ any reports
required of you pursuant to Rule 17a-2 not later than the date specified therein
and you authorize ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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
8
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
9
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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 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.
X. 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 ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ 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
▇▇▇▇▇▇▇ ▇▇▇▇▇ 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
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇
▇▇▇▇▇ 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ as provided in Section 10.4 hereof. Any such notice shall take effect
upon receipt thereof.
Please confirm your acceptance of this ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
Master AAU by signing and returning to us the enclosed duplicate copy hereof.
Very truly yours,
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By:
----------------------------
Name:
Title:
CONFIRMED: 1999
-----------------------------
---------------------------------------
(Name of Underwriter)
By:
------------------------------------
Name:
Title:
(If person signing is not an officer
or a partner, please attach instrument
of authorization)
Address:
-------------------------------
-------------------------------
-------------------------------
Telephone:
-----------------------------
Fax:
-----------------------------
20
EXHIBIT A
JUNE 1, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
UNDERWRITERS' QUESTIONNAIRE
In connection with each Offering covered by the ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ 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 ▇▇▇▇ ▇▇▇) 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ 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.
21
(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 ▇▇▇▇▇▇▇ ▇▇▇▇▇
Barney Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇, 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 ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc. ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇, 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
22
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
23
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.
24
