▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
MASTER AGREEMENT AMONG UNDERWRITERS
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November 1998
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Equity Syndicate
Ladies and Gentlemen:
This agreement (this AGREEMENT) sets forth the general terms and
conditions pursuant to which the Underwriters (as hereinafter defined) will
agree among themselves with reference to their proposed purchases severally of
the Securities (as hereinafter defined) referred to in the Underwriting
Agreement (as hereinafter defined) to be executed by the issuer of such
Securities (the ISSUER) and the selling security holders, if any, named therein.
We understand that from time to time you may act as Representative or
as one of the Representatives (as hereinafter defined) of the Underwriters of
offerings of Securities. This Agreement shall apply to any offering of
Securities in which we elect to act as an Underwriter after receipt of an
Invitation (as hereinafter defined) from you identifying the Issuer, containing
information regarding certain terms of the Securities to be offered, specifying
the amount of our proposed participation and the names of the other
Representatives, if any, and stating that our participation as an Underwriter in
the offering shall be subject to the provisions of this Agreement, which shall
be deemed to include the terms and conditions set forth (a) in the Prospectus
(as hereinafter defined), (b) in any letter or telefax sent to prospective
Underwriters in connection with an Invitation to participate as Underwriters and
(c) in any letter or telefax sent to Underwriters in connection with the terms
of any particular offering. Your Invitation will include instructions for our
acceptance of such Invitation.
At or prior to the time of an offering, you will advise us, to the
extent applicable, as to the expected offering date, the expected closing date,
the initial public offering price, the interest or dividend rate (or the method
by which such rate is to be determined), the conversion price, the underwriting
discount, the management fee, the selling concession and the reallowance, the
amount, if any, of Securities reserved for purchase by dealers and other terms
and conditions of the offering, except that if the initial public offering price
of the Securities is to be determined by a formula based upon the market price
of certain securities (such procedure being hereinafter referred to as FORMULA
PRICING), you shall so advise us and shall specify the maximum underwriting
discount, management fee and selling concession. Such information may be
conveyed by you in one or more communications (such communications received by
us with respect to the offering are hereinafter collectively referred to as the
INVITATION). You will notify us, in the Invitation, if the Underwriting
Agreement provides for (i) the granting of an option to purchase additional
Securities to cover over-allotments or (ii) two syndicates of Underwriters, one
of which will offer and sell Securities in the United States and Canada to U.S.
and Canadian Persons (as such terms are defined in the Agreement Between U.S.
Underwriters and International Managers (as hereinafter defined)) and the other
of which (the INTERNATIONAL MANAGERS) will offer and sell Securities outside the
United States and Canada to persons other than U.S. and Canadian Persons (a
TWO-TRANCHE OFFERING).
This Agreement, as amended or supplemented by the Invitation, shall
become effective with respect to our participation in an offering of securities
if your Equity Syndicate receives our oral or written acceptance prior to the
time and date specified in the Invitation and you do not receive a written
communication revoking our acceptance prior to the time and date specified in
the Invitation (our unrevoked acceptance after expiration of such time and date
being hereinafter referred to as our ACCEPTANCE). Our Acceptance will constitute
our confirmation that, except as otherwise stated in such Acceptance, each
statement included in the Master Underwriters' Questionnaire set forth as
Exhibit A hereto (or otherwise furnished to us) is and will be as of the date of
the Underwriting Agreement, unless prior thereto we notify you in writing to the
contrary, true and correct and our confirmation that we will purchase, on the
terms and subject to the conditions set forth in the Underwriting Agreement, the
Invitation, the Prospectus and this Agreement, our original underwriting
commitment (as hereinafter defined).
The Securities the Underwriters are initially obligated to purchase
pursuant to the Underwriting Agreement are hereinafter called the FIRM
SECURITIES and any additional Securities which may be purchased by the
Underwriters upon exercise of any over-allotment option contained in the
Underwriting Agreement are hereinafter called the OPTION SECURITIES. In the case
of a Two-Tranche Offering, the Securities the International Managers are
initially obligated to purchase pursuant to the Underwriting Agreement are
hereinafter referred to as the INTERNATIONAL FIRM SECURITIES and any additional
Securities which may be purchased by the International Managers upon exercise of
any over-allotment option contained in the Underwriting Agreement are
hereinafter referred to as the INTERNATIONAL OPTION SECURITIES, with the Firm
Securities, the Option Securities, the International Firm Securities and the
International Option Securities being hereinafter collectively referred to as
the SECURITIES. Any underwriters of Securities under this Agreement, including
the Representatives, are hereinafter collectively referred to as the
UNDERWRITERS. In the case of a Two-Tranche Offering, the International Managers
will not purchase Securities pursuant to this Agreement in their capacity as
International Managers and accordingly will not be Underwriters for the purposes
hereof. All references herein to YOU or to the REPRESENTATIVES shall mean ▇.▇.
▇▇▇▇▇▇▇ & Sons, Inc. and the other firms, if any, which are named as
Representatives or, in the case of a Two-Tranche Offering, as U.S.
Representatives (as such term is defined in the Agreement Between U.S.
Underwriters and International Managers) in the Invitation. It is understood and
agreed that ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. may act on behalf of all Representatives.
The Securities to be offered may, but need not, be registered for a delayed or
continuous offering pursuant to Rule 415 (RULE 415) promulgated by the United
States Securities and Exchange Commission (the COMMISSION) under the United
States Securities Act of 1933 (the ACT).
The following provisions of this Agreement shall apply separately to
each individual offering of Securities. This Agreement may be supplemented or
amended by you by a written notice to us and, except for supplements or
amendments set forth in an Invitation relating to a particular offering of
Securities, any such supplement or amendment to this Agreement shall be
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effective with respect to any offering of Securities to which this Agreement
applies after this Agreement is so amended or supplemented.
1. REGISTRATION STATEMENT AND PROSPECTUS; OFFERING CIRCULAR. In the
case of an Invitation regarding an offering of Securities registered under the
Act (a REGISTERED OFFERING), you will furnish to us, to the extent made
available to you by the Issuer, copies of the registration statement relating to
the Securities filed with the Commission pursuant to the Act and each amendment
thereto (excluding exhibits but, upon request, including any documents
incorporated by reference therein), as well as copies of the Prospectus relating
to such Securities. If such registration statement relates to Securities to be
offered on a delayed or continuous basis pursuant to Rule 415, the term
REGISTRATION STATEMENT means such registration statement as amended to the date
of the Underwriting Agreement. Otherwise, the term REGISTRATION STATEMENT means
such registration statement as amended at the time when it becomes effective
(including the information, if any, deemed to be a part of such registration
statement at the time of effectiveness pursuant to Rule 430A promulgated by the
Commission under the Act) or by any post-effective amendment thereto, together
with any registration statement filed by the Issuer pursuant to Rule 462(b)
promulgated by the Commission under the Act. The term PROSPECTUS means the
prospectus, together with a final prospectus supplement, if any, relating to the
offering of the Securities, and in the form first used to confirm sales of the
Securities, as amended or supplemented, except that in the case of a Two-Tranche
Offering, the term Prospectus means, collectively, the U.S. prospectus (as such
term is defined in the Agreement Between U.S. Underwriters and International
Managers) relating to the Securities to be offered and sold in the United States
and Canada to U.S. and Canadian Persons and the international prospectus
relating to the Securities to be offered and sold outside the United States and
Canada to persons other than U.S. and Canadian Persons, in each case, together
with a final prospectus supplement, if any, and in the respective forms first
used to confirm sales of the Securities, as amended or supplemented. The term
PRELIMINARY PROSPECTUS means any preliminary prospectus to be used in connection
with the offering of the Securities or any preliminary prospectus supplement
together with a prospectus relating to the offering of the Securities. As used
herein, the terms Registration Statement, Prospectus and preliminary prospectus
shall include, in each case, the material, if any, incorporated by reference
therein.
With respect to the Securities for which no Registration Statement is
filed with the Commission, you will furnish to us, to the extent made available
to you by the Issuer, copies of any offering circular or other offering
materials to be used in connection with the offering of the Securities and of
each amendment or supplement thereto (the OFFERING CIRCULAR). The term
PRELIMINARY OFFERING CIRCULAR means any preliminary offering circular to be used
in connection with the offering of Securities for which no Registration
Statement is filed with the Commission.
We understand that it is our responsibility to examine the Registration
Statement, the Prospectus, the Offering Circular, any amendment or supplement
thereto relating to the offering of the Securities, any preliminary prospectus
or preliminary offering circular and the material, if any, incorporated by
reference therein and we will familiarize ourselves with the terms of the
Securities and the other terms of the offering thereof which are to be reflected
in the Prospectus or the Offering Circular and the Invitation. You are
authorized to approve on our behalf any amendments or supplements to the
Registration Statement, the Prospectus or the Offering Circular.
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2. UNDERWRITING AGREEMENT; AUTHORITY OF REPRESENTATIVES. We authorize
you to execute and deliver an underwriting or purchase agreement and any
amendment or supplement thereto and any associated terms agreement or other
similar agreement (collectively, the UNDERWRITING AGREEMENT) on our behalf with
the Issuer and any selling security holder with respect to the Securities in
such form as you determine, and to exercise in your discretion all of the
authority vested in you by the Underwriting Agreement subject to limitations, if
any, set forth in the Invitation. We also authorize you to take all action that
you may believe is necessary or desirable in carrying out the provisions of the
Underwriting Agreement and this Agreement, including authority to take such
action as you deem advisable in connection with the purchase, carrying, sale and
distribution of the Securities, to agree to changes in those who are to be
Underwriters and, subject to Section 4(c) hereof, in the amount of Securities to
be purchased by such Underwriter, and to agree to any variation in the terms or
performance of the Underwriting Agreement and this Agreement which, in your sole
discretion, seem advisable to you in respect thereof. We will be bound by all
terms of the Underwriting Agreement as executed. It is understood and agreed
that ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. may act on behalf of all Representatives. The
term ORIGINAL UNDERWRITING COMMITMENT, as used in this Agreement with respect to
any Underwriter, shall refer to the amount of Firm Securities set forth opposite
such Underwriter's name in the Underwriting Agreement plus (a) any additional
Firm Securities which such Underwriter may become obligated to purchase pursuant
to the provisions of the Underwriting Agreement or Section 12 hereof and (b) any
Option Securities which such Underwriter may become obligated to purchase upon
exercise of any over-allotment option contained in the Underwriting Agreement
and, as used in this Agreement with respect to any International Manager, shall
refer to the amount of International Firm Securities set forth opposite such
International Manager's name in the Underwriting Agreement plus (a) any
additional International Firm Securities which such International Manager may
become obligated to purchase pursuant to the provisions of the Underwriting
Agreement and (b) any International Option Securities which such International
Manager may become obligated to purchase upon exercise of any over-allotment
option contained in the Underwriting Agreement, in each case without regard to
any reduction in such commitment as a result of Delayed Delivery Contracts (as
hereinafter defined) that may be entered into by the Issuer. The ratio which the
original underwriting commitment of any Underwriter bears to the aggregate
amount of Firm Securities to be purchased by all the Underwriters is referred to
in this Agreement as the UNDERWRITING PROPORTION of such Underwriter.
In the case of a Two-Tranche Offering, we authorize you (a) to execute
and deliver an agreement between the Underwriters and the International Managers
(the AGREEMENT BETWEEN U.S. UNDERWRITERS AND INTERNATIONAL MANAGERS) on our
behalf with respect to the Securities in such form as you determine, (b) to make
representations on our behalf as set forth in the Agreement Between U.S.
Underwriters and International Managers and (c) to purchase or sell Securities
for the account of the Underwriters pursuant to the Agreement Between U.S.
Underwriters and International Managers. We will be bound by all terms of the
Agreement Between U.S. Managers and International Underwriters as executed.
It is understood that, if so specified in the Invitation, arrangements
may be made for the sale of Securities by the Issuer pursuant to delayed
delivery contracts (DELAYED DELIVERY CONTRACTS), such securities hereinafter
referred to as CONTRACT SECURITIES. References herein to delayed delivery and
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Delayed Delivery Contracts apply only to offerings to which delayed delivery is
applicable.
If the Securities consist in whole or in part of debt obligations
maturing serially, the serial Securities being purchased by each Underwriter
pursuant to the Underwriting Agreement will consist, subject to adjustment as
provided in the Underwriting Agreement, of serial Securities of each maturity in
a principal amount that bears the same proportion to the aggregate principal
amount of the serial Securities of such maturity to be purchased by all the
Underwriters as the principal amount of serial Securities set forth opposite
such Underwriter's name in the Underwriting Agreement bears to the aggregate
principal amount of the serial Securities to be purchased by all the
Underwriters.
3. AUTHORIZATION UNDER UNDERWRITING AGREEMENT. You are authorized in
your sole discretion to take the following action with respect to the
Underwriting Agreement and the Agreement Between U.S. Underwriters and
International Managers:
(a) To postpone any closing date or option closing date or to
extend any other time or date specified in the Underwriting Agreement
or the Agreement Between U.S. Underwriters and International Managers.
(b) To exercise any right of cancellation or termination.
(c) To arrange for the purchase by other persons (including
yourselves or any other Underwriters) of any of the Securities
(including any Securities purchased from the International Managers
pursuant to the Agreement Between U.S. Underwriters and International
Managers) not taken up by any defaulting Underwriter or by the other
Underwriters as provided in the Underwriting Agreement.
(d) To give notice on our behalf of the determination to
purchase any Option Securities.
(e) With respect to offerings using Formula Pricing, to
determine the initial public offering price and the price at which the
Securities are to be purchased in accordance with the Underwriting
Agreement.
(f) To consent to any other additions to, changes in or waivers
of provisions of the Underwriting Agreement or the Agreement Between
U.S. Underwriters and International Managers, and to take such other
action in connection with the offering of the Securities, as may seem
advisable to you in respect thereof.
4. METHOD OF OFFERING. We authorize you to manage the underwriting and
the offering of the Securities and to take such action in connection therewith
and in connection with the purchase, carrying and resale of the Securities,
including without limitation the following, as you in your sole discretion deem
appropriate or desirable:
(a) To determine the time of the initial public offering of the
Securities, the initial public offering price and the Underwriters'
gross spread and whether to purchase any Option Securities and the
amount, if any, of Option Securities to be so purchased.
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(b) To make any changes in the initial public offering price or
other terms of the offering.
(c) To make changes in those who are to be Underwriters and in
the respective amounts of the Firm Securities to be purchased by them,
provided that our original underwriting commitment shall not be changed
without our consent except as provided herein or in the Underwriting
Agreement.
(d) To determine all matters relating to advertising and
communications with dealers or others.
(e) To reserve for sale and to sell and deliver to institutions
or other retail purchasers, for our account, such of our Securities
(including any Securities purchased from the International Managers
pursuant to the Agreement Between U.S. Underwriters and International
Managers) as you may determine at the initial public offering price;
provided, however, that such reservations and sales shall be made for
the respective accounts of the several Underwriters as nearly as
practicable in their respective underwriting proportions under the
Underwriting Agreement, except for such sales for the account of a
particular Underwriter designated by such a purchaser.
(f) To reserve for sale and to sell and deliver to dealers (who
may include any of the Underwriters), for our account, such of our
Securities (including any Securities purchased from the International
Managers pursuant to the Agreement Between U.S. Underwriters and
International Managers) as you may determine at the initial public
offering price, less a selling concession not in excess of the selling
concession set forth in the Invitation, pursuant to the ▇.▇. ▇▇▇▇▇▇▇ &
Sons, Inc. Master Dealers Agreement dated September 1998; provided,
however, that such dealers shall be actually engaged in the investment
banking or securities business and shall be either members in good
standing of the National Association of Securities Dealers, Inc. (the
NASD) or dealers with their principal place of business located outside
the United States, its territories or its possessions and not
registered as a broker-dealer under Section 15 of the United States
Securities Exchange Act of 1934 (the EXCHANGE ACT) who agree to make no
sales within the United States, its territories or its possessions or
to persons who are nationals thereof or residents therein; and
provided, further, that each dealer shall agree to comply with the
provisions of Rule 2740 of the NASD Conduct Rules, and each foreign
dealer who is not a member of the NASD also shall agree to comply with
the NASD's interpretation with respect to free-riding and withholding,
to comply, as though it were a member of the NASD, with the provisions
of Rules 2730 and 2750 of the NASD Conduct Rules, and to comply with
Rule 2420 of the NASD Conduct Rules as that Rule applies to a
non-member foreign dealer.
(g) To apportion such sales to dealers pursuant to clause (f)
above among the Underwriters as nearly as practicable in the ratio that
Securities (including any Securities purchased from the International
Managers pursuant to the Agreement Between U.S. Underwriters and
International Managers) of each Underwriter so reserved bears to the
total amount of Securities (including any Securities purchased from the
International Managers pursuant to the Agreement Between U.S.
Underwriters and International Managers) of all Underwriters so
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reserved; provided, however, that if such ratio is to be revised by
reason of the release for direct sale as hereinafter provided, sales
may be apportioned by you from day to day on the basis of the ratio
existing at the end of the preceding day.
(h) To fix the selling concession to dealers and the reallowance
to dealers and, after the initial public offering of the Securities, to
make changes in the initial public offering price, selling concession
and reallowance to dealers, commissions in connection with Contract
Securities sold pursuant to Delayed Delivery Contracts, and other terms
of sale hereunder and under the selling arrangements then in effect;
provided, however, that such dealers (both NASD members and foreign
dealers) agree that any such reallowance is to be retained and not
reallowed in whole or in part.
(i) To take all such other action as you deem advisable in all
matters pertaining to sales of Securities or reserved Securities, as
the case may be, to dealers, retail purchasers, member firms and
specialists.
(j) At any time with respect to unsold Securities retained by us
(including any Securities purchased from the International Managers
pursuant to the Agreement Between U.S. Underwriters and International
Managers): (i) to reserve any of such Securities for sale by you for
our account or (ii) to purchase any of such Securities that in your
opinion are needed to enable you to make deliveries for the accounts of
the several Underwriters pursuant to this Agreement; purchases may be
made at the initial public offering price or, at your option, at such
price less all or any part of the selling concession to dealers.
(k) To consummate sales of Securities by Underwriters, except as
otherwise set forth herein, on the terms specified under the selling
arrangements then in effect.
We understand that you will advise us when the Securities are released
for public offering and of the amount of Securities sold or reserved for sale
for our account. We shall retain for direct sale any Securities purchased by us
(including any Securities purchased from the International Managers pursuant to
the Agreement Between U.S. Underwriters and International Managers) and not so
sold or reserved. Direct sales will be made in accordance with the terms of
offering set forth in the Prospectus or the Offering Circular. With your
consent, we may obtain release from you for direct sale of any Securities held
by you pursuant to subparagraphs (e) and (j) above but not sold and paid for. To
the extent Securities so released had been reserved for sale to dealers, the
amount of Securities reserved for our account for sale to dealers shall be
correspondingly reduced. We will advise you from time to time, at your request,
of the amount of Securities retained by us which remain unsold and of the amount
of Securities remaining unsold which were delivered to us pursuant to the last
paragraph of this Section 4.
If so directed in the Invitation, we agree that without your consent we
will not sell to any account over which we exercise discretionary authority any
of our Securities. We will also comply with any other restriction that may be
set forth in the Invitation.
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If, prior to (a) the termination of this Agreement with respect to the
offering of the Securities or (b) the covering by ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. of
any short position created by ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. for the accounts of the
Underwriters pursuant to Section 6 hereof, you shall purchase or contract to
purchase any of the Securities sold directly by us, in your discretion you may
(i) sell for our account the Securities so purchased and debit or credit our
account for the loss or profit resulting from such sale, (ii) charge our account
with an amount equal to the selling concession to dealers with respect thereto
and credit such amount against the cost thereof or (iii) require us to purchase
such Securities at a price equal to the total cost of such purchase, including
commissions, accrued interest, amortization of original issue discount or
dividends and transfer taxes on redelivery.
5. DELAYED DELIVERY ARRANGEMENTS. We authorize you to act on our behalf
in making all arrangements for the solicitation of offers to purchase Securities
from the Issuer pursuant to Delayed Delivery Contracts, and we agree that all
such arrangements will be made only through you (directly or through
Underwriters or dealers selected by you). You may allow to dealers in respect of
such Securities a commission equal to the selling concession allowed to dealers
pursuant to Section 4.
The original underwriting commitments of the Underwriters shall be
reduced in the aggregate by the principal amount of Securities covered by
Delayed Delivery Contracts made by the Issuer, the original underwriting
commitment of each Underwriter to be reduced by the principal amount of such
Securities, if any, allocated to you by such Underwriter. Your determination of
the allocation of Securities covered by Delayed Delivery Contracts among the
several Underwriters shall be final and conclusive and we agree to be bound by
any notice delivered by you to the Issuer setting forth the amount of the
reduction in our original underwriting commitment as a result of Delayed
Delivery Contracts.
Upon receiving payment from the Issuer of the fee for arranging Delayed
Delivery Contracts, you will credit our account with the portion of such fee
applicable to the Securities covered by Delayed Delivery Contracts allocated to
us; provided, however, that, should the total amount of Contract Securities
attributed or directed and allocated by a purchaser to any Underwriter exceed
the amount of Securities to be purchased by such Underwriter under the
Underwriting Agreement minus the amount of Securities to be purchased by such
Underwriter under the Underwriting Agreement, there shall be credited to the
account of such Underwriter with respect to the amount of Contract Securities
equal to such excess only the amount of the commission allowed to dealers in
connection with Contract Securities. You will charge our account with any
commission (which initially shall not be in excess of the amount specified in
the Invitation) allocated to dealers in respect of Securities covered by Delayed
Delivery Contracts allocated to us.
6. TRADING AUTHORIZATIONS. We authorize ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.,
during the term of this Agreement relating to the offering of the Securities in
its discretion:
(a) To make purchases and sales of Securities, any securities of
the Issuer of the same class and series as the Securities, any
securities into which the Securities are convertible or for which the
Securities are exchangeable and any other securities of the Issuer or
any guarantor of the Securities specified in the Invitation, in the
open market or otherwise (in addition to purchases and sales made under
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the authority of Section 4 and, in the case of a Two-Tranche Offering,
under the authority of the Agreement Between U.S. Underwriters and
International Managers), either for long or short account, in such
amounts, on such terms, at such prices and in such manner as it may
determine.
(b) In arranging for sales of the Securities pursuant to Section
4, to over-allot and to make purchases for the purpose of covering any
over-allotment so made.
It is understood that, in connection with the offering of the
Securities, ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. may have made purchases of any such
securities for stabilizing purposes prior to the time when we became one of the
Underwriters, and we agree that any such securities so purchased shall be
treated as having been purchased pursuant to the foregoing authorization.
All such purchases and sales and over-allotments shall be made for the
respective accounts of the several Underwriters as nearly as practicable in
their respective underwriting proportions except in the case of a Two-Tranche
Offering, in which case, they shall be made for the respective accounts of the
several Underwriters and the several International Managers as set forth in the
Agreement Between U.S. Underwriters and International Managers; provided,
however, that at no time shall our net commitment resulting from such purchases
and sales, either for long or short account, or pursuant to such
over-allotments, exceed 15% (or such other amount as may be specified in the
Invitation, except as set forth below in the event of an Underwriter not
carrying out its commitment under this Section 6) of our original underwriting
commitment and provided, further, that in determining our net commitment for
short account there shall be subtracted the maximum amount of Option Securities
that we are entitled to purchase. We agree to take up at cost on demand any
securities so purchased for our account and to deliver on demand any securities
so sold or so over-allotted for our account. Without limiting the generality of
the foregoing, ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. may buy or take over for the respective
accounts of the several Underwriters, all in the proportion and within the
limits set forth, at the price at which reserved, any of the Securities reserved
for sale by it but not sold and paid for, for such purposes as it may determine,
including, but not limited to, the covering of over-allotments and short sales.
If ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. engages in any stabilization transaction
pursuant to this Section 6, it will notify us promptly of the date and time of
the first stabilizing purchase and the date and time of termination of
stabilization. ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. shall prepare and maintain such records
as are required to be maintained by it as manager pursuant to Rule 17a-2 under
the Exchange Act.
7. LIMITATION ON TRANSACTIONS BY UNDERWRITERS. If the Securities are
common stock of the Issuer (COMMON STOCK) or securities of the Issuer that may
be exchanged for or converted into Common Stock, we agree that we will not,
without the advance approval of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc., buy, sell, deal or
trade in (a) any Common Stock, (b) any security of the Issuer convertible into
Common Stock or (c) any right or option to acquire or sell Common Stock or any
security of the Issuer exchangeable for or convertible into Common Stock, for
our own account or for the account of a customer, except:
(i) as provided for in this Agreement or the Underwriting
Agreement;
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(ii) that we may exchange or convert any security of the Issuer
exchangeable for or convertible into Common Stock owned by us and sell
the Common Stock acquired upon such exchange or conversion and that we
may deliver Common Stock owned by us upon the exercise of any option
written by us as permitted by the provisions set forth herein;
(iii) in brokerage transactions on unsolicited orders that have
not resulted from activities on our part in connection with the
solicitation of purchases and that are executed by us in the ordinary
course of our brokerage business; or
(iv) that, on or after the date of the initial public offering
of the Securities, we may execute covered writing transactions in
options to acquire Common Stock, when such transactions are covered by
Securities, for the accounts of customers.
An opening uncovered writing transaction in options to acquire Common
Stock for our account or for the account of a customer shall be deemed, for
purposes of this Section 7, to be a sale of Common Stock which is not
unsolicited. The term OPENING UNCOVERED WRITING TRANSACTION IN OPTIONS TO
ACQUIRE as used above means a transaction where the seller intends to become a
writer of an option to purchase any Common Stock that he does not own. An
opening uncovered purchase transaction in options to sell Common Stock for our
account or for the account of a customer shall be deemed, for purposes of this
Section 7, to be a sale of Common Stock which is not unsolicited. The term
OPENING UNCOVERED PURCHASE TRANSACTION IN OPTIONS TO SELL as used above means a
transaction where the purchaser intends to become an owner of an option to sell
Common Stock which he does not own.
If the Securities are not Common Stock or securities of the Issuer that
may be exchanged for or converted into Common Stock, we agree that we will not
bid for or purchase, or attempt to induce any other person to purchase, any
Securities or any other securities of the Issuer designated in the Invitation
other than (a) as provided for in this Agreement or the Underwriting Agreement,
(b) as approved by ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. or (c) as a broker in executing
unsolicited orders.
We represent that we have not participated in any transaction
prohibited by the preceding paragraphs of this Section 7 and that we have at all
times complied with and will at all times comply with the provisions of
Regulation M promulgated by the Commission under the Exchange Act applicable to
the offering of the Securities in connection with each offering to which this
Agreement applies. For purposes of the foregoing sentence, each Underwriter
agrees that in addition to the Securities, other securities of the Issuer
specified in the Invitation shall be considered securities of the same class and
series as Securities to which this Agreement relates unless you shall otherwise
determine and so inform the Underwriters.
We may, with your prior consent, make purchases of the Securities from
and sales to other Underwriters at the initial public offering price, less all
or any part of the selling concession to dealers.
8. DELIVERY AND PAYMENT. At or before such time, on such dates and at
such places as you may specify in the Invitation, we will transmit to you a wire
transfer in immediately available funds, unless otherwise specified in the
10
Invitation, payable to an account specified by you in the Invitation (unless
otherwise specified in the Invitation) in an amount equal to, as you direct, (a)
the initial public offering price or prices plus accrued interest, amortization
of original issue discount or dividends, if any and as appropriate, set forth in
the Prospectus or the Offering Circular less the selling concession to dealers
in respect of the amount of Securities to be purchased by us in accordance with
the terms of this Agreement, or (b) the initial public offering price or prices
plus accrued interest, amortization of original issue discount or dividends, if
any and as appropriate, set forth in the Prospectus or the Offering Circular
less the selling concession in respect of such of the Securities to be purchased
by us as shall have been retained by or released to us for direct sale, or (c)
the amount set forth in the Invitation with respect to the Securities to be
purchased by us. You shall use such funds to make payment on our behalf of the
purchase price for the Securities to be purchased by us. Any balance shall be
held by you for our account. If you have not received our funds as requested,
you may in your discretion make any such payment on our behalf and we will
promptly deliver funds to you in the amount so requested. Any such payment by
you will not relieve us from any of our obligations under this Agreement or
under the Underwriting Agreement.
We authorize you, in carrying out the provisions of this Agreement, in
your discretion, to arrange loans for our account, to advance your funds for our
account, charging current interest rates, to execute and deliver any notes or
other instruments evidencing such advances or loans, to hold or pledge as
security therefor all or any of the Securities and other securities of the
Issuer and give all instructions to the lenders with respect to any such loans
and the proceeds thereof, which instructions the lenders are hereby authorized
to accept. In the event of any such advance or loan, repayment thereof shall, in
your discretion, be effected prior to the making of any remittance or delivery
pursuant to this Section 8.
You shall promptly remit to us or credit to our account (x) the
proceeds of any loan taken down on our behalf and (y) upon payment to you for
any Securities sold for our account, an amount equal either to the purchase
prices paid by us or the price received by you therefor, as you may determine.
If the Underwriting Agreement for an offering provides for the payment of a
commission or other compensation to the Underwriters, we authorize you to
receive such commission or other compensation for our account.
We authorize you to take delivery of certificates for our Securities
(which may, in the case of Securities which are debt obligations, be in
temporary form), registered as you may direct in order to facilitate deliveries,
and to deliver any Securities reserved for us against sales. You will deliver to
us certificates for our unreserved Securities and certificates for our reserved
but unsold Securities as soon as practicable after the termination of the
provisions referred to in Section 11. If we are a member of The Depository Trust
Company (DTC), you may at your discretion arrange for payment for or delivery of
our participation through the facilities of DTC or, if we are not a member, such
settlement may be made through our ordinary correspondent who is a member.
Certificates for all other Securities that you then hold for our
account shall be delivered to us upon termination of this Agreement with respect
to the offering of the Securities, or prior thereto in your discretion, and
certificates for any such Securities may at any time be delivered to us for
carrying purposes only, subject to redelivery upon demand. If, upon termination
11
of this Agreement with respect to the offering of the Securities, an aggregate
of not more than 15% of the Securities remains unsold, ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
may, in its discretion, sell such Securities at such prices as it may determine.
Each Underwriter agrees that, from time to time prior to the settlement
of accounts hereunder, it will furnish to you such information as you may
request in order to determine the amount of Securities purchased by such
Underwriter in the Underwriting Agreement that then remains unsold, and such
Underwriter will upon your request then sell to you for the account of any
Underwriter as many of such unsold Securities as you may designate at the
initial public offering price, less all or any part of the selling concession to
dealers as you may determine. The provisions of the last paragraph of Section 4
hereof shall not be applicable in respect of any such sale.
9. BLUE SKY QUALIFICATION. Upon request, you will inform us as to the
jurisdictions in which you have been advised by counsel that the Securities have
been registered or qualified for sale under the respective state securities or
blue sky laws, but you do not assume any responsibility or obligation as to our
right to sell the Securities in any jurisdiction. You are authorized to file or
cause to be filed a Further State Notice with the Department of State of New
York.
If we propose to offer Securities outside the United States, its
territories or its possessions, we will take, at our own expense, such action,
if any, as may be necessary to comply with the laws of each foreign jurisdiction
in which we propose to offer Securities.
10. INDEMNIFICATION AND CERTAIN CLAIMS. With respect to each offering
of Securities pursuant to this Agreement, we agree to indemnify and hold
harmless each of the other Underwriters, and each person, if any, who controls
any other Underwriter within the meaning of Section 15 of the Act or Section 20
of the Exchange Act and to reimburse their expenses, all to the extent, if any,
and upon the terms that we agree to indemnify and hold harmless the Issuer and
other specified persons and to reimburse their expenses, as set forth in the
Underwriting Agreement. This indemnity agreement shall remain in full force and
effect regardless of any investigation made by or on behalf of such other
Underwriter or controlling person or any statement made to the Commission as to
the results thereof.
Each Underwriter represents to each other Underwriter that the
information relating to such Underwriter that had been or may be furnished in
writing to the Representatives by such Underwriter expressly for use buy the
Issuer in the Registration Statement, any preliminary prospectus, the
Prospectus, the Offering Circular, any preliminary offering circular, any
amendment or supplement thereto, or any document that may be incorporated be
reference therein is correct in all material respects. This representation shall
remain in full force and effect regardless of any investigation made by or on
behalf of such other Underwriter or any statement made to the Commission as to
the results thereof.
With respect to each offering of Securities pursuant to this Agreement,
we agree that in respect of any matter connected with or action taken by you
pursuant to this Agreement you shall act only as agent of the Underwriters.
12
You shall be under no liability to us in any such respect or in respect
of the form of, or the statements contained in, or the validity of, any
preliminary prospectus or preliminary offering circular or the Registration
Statement, the Prospectus or the Offering Circular, or any amendment or
supplement to any of them, or any document that may be incorporated by reference
therein, or any letter or instruments executed by or on behalf of the Issuer, or
for any report or other filing made by you for us on our behalf under this
Agreement, except for want of good faith and for obligations expressly assumed
by you herein, and no obligations on your part will be implied or inferred from
confirmation or acceptance of this Agreement.
With respect to each offering of Securities pursuant to this Agreement,
we will pay our proportionate share (based on our underwriting proportion):
(a) of all expenses incurred by you in investigating or
defending against any claim or proceeding that is asserted or
instituted by any party (including any governmental or regulatory body)
other than an Underwriter, based upon the claim that the Underwriters
constitute an association, a partnership, an unincorporated business or
other separate entity, and of any liability incurred by you in respect
of any such claim or proceeding, whether such liability shall be the
result of a judgment or as a result of any settlement agreed to by you,
other than any such liability as to which you actually receive
indemnity pursuant to the first paragraph of this Section 10 or
indemnity or contribution pursuant to the Underwriting Agreement; and
(b) upon the Representatives' request, as contribution, of any
losses, claims, damages or liabilities, joint or several, under the Act
or otherwise, paid or incurred by any Underwriter (including the
Representatives, individually or as representatives of the
Underwriters) to any person other than an Underwriter (including
amounts paid by an Underwriter as contribution), arising out of or
based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any preliminary
prospectus, the Prospectus, any preliminary offering circular, the
Offering Circular or any amendment or supplement thereto, any document
which may be incorporated by reference therein, or any other selling or
advertising material used with the consent of ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc.
by the Underwriters in connection with the sale of the Securities, or
arising out of or based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading and (ii) any act or omission
to act or any alleged act or omission to act by the Representatives,
individually or as representatives of the Underwriters, or by the
Underwriters, as a group but not individually, in connection with any
transaction contemplated by this Agreement or undertaken in preparing
for the purchase, sale and delivery of the Securities; and each
Underwriter will pay such proportionate share of any legal or other
expenses reasonably incurred by the Representatives, or with their
consent, in connection with investigating or defending any such loss,
claim, damage or liability, or any action in respect thereof. In
determining the amount of any Underwriter's obligation under this
paragraph, appropriate adjustment may be made by the Representatives to
reflect any amounts received by any one or more Underwriters pursuant
to the Underwriting Agreement or otherwise, in respect of the claim
upon which such obligation is based. In respect of any claim there
shall be credited against the amount of any Underwriter's obligation
under this paragraph any loss, damage, liability or expense which is
13
paid or incurred by such Underwriter as a result of such claim being
asserted against it, and, if such loss, damage, liability or expense is
paid or incurred by such Underwriter subsequent to any payment by it
pursuant to this paragraph, appropriate provision shall be made to
effect such credit, by refund or otherwise. If any claim to which the
provisions of this paragraph would be applicable is asserted, ▇.▇.
▇▇▇▇▇▇▇ & Sons, Inc. 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 by ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. shall be included
in the amount of the Underwriters' obligations under this paragraph. At
its discretion, ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. may consent to being named as
the representatives of a defendant class of underwriters. Any
Underwriter may elect to retain at its own expense its own counsel and,
on advice of such counsel and with the consent of ▇.▇. ▇▇▇▇▇▇▇ & Sons,
Inc., may settle or consent to the settlement of any such claim. ▇.▇.
▇▇▇▇▇▇▇ & Sons, Inc. may settle or consent to the settlement of any
such claim, on advice of counsel retained by it, with the approval of a
majority in interest of the Underwriters. Whenever any Underwriter
receives notice of the assertion of any claim to which the provisions
of this paragraph would be applicable, such Underwriter will give
prompt notice thereof to the Representatives. Whenever the
Representatives receive notice of the assertion of any such claim, they
will give prompt notice thereof to each Underwriter. The
Representatives also will furnish each Underwriter with periodic
reports, at such times as they deem appropriate, as to the status of
any such claim and the action taken by them in connection therewith. In
the event of the failure of any Underwriter to fulfill its obligations
under this paragraph, such obligations may be charged against the other
Underwriters not so defaulting in the same proportions as the
respective underwriting proportions of such other Underwriters,
without, however, relieving such defaulting Underwriter from its
liability therefor. In determining amounts payable pursuant to this
paragraph, any loss, claim, damage, liability or expense paid or
incurred, and any amount received, by any person controlling any
Underwriter within the meaning of Section 15 of the Act or Section 20
of the Exchange Act which has been paid or incurred or received by
reason of such control relationship shall be deemed to have been paid
or incurred or received by such Underwriter. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
11. TERMINATION AND SETTLEMENT. With respect to each offering of
Securities pursuant to this Agreement, this Agreement shall terminate (a) on the
thirtieth business day after the initial public offering of the Securities, (b)
on such earlier date as you may determine or (c) on the date of termination of
the Underwriting Agreement if the Underwriting Agreement shall be terminated as
permitted by its terms. You may at your discretion, on notice to us prior to the
termination of this Agreement with respect to the offering of the Securities as
provided in the preceding sentence, terminate or suspend the effectiveness of
Sections 4, 6 and 7 hereof or any part of them, or alter any of the terms or
conditions of offering determined pursuant to Section 4 hereof. No termination
or suspension pursuant to this Section 11 shall affect your authority under
Section 6 hereof to cover any short position under this Agreement.
14
Upon termination of this Agreement with respect to the offering of the
Securities, all authorizations, rights and obligations hereunder shall cease,
except (i) the mutual obligations to settle accounts hereunder, (ii) our
obligation to pay any transfer taxes that may be assessed and paid on account of
any sales hereunder for our account, (iii) our obligation with respect to
purchases that may be made by you from time to time thereafter to cover any
short position incurred under this Agreement, (iv) our agreements contained in
the first and third paragraphs of Section 10 hereof and (v) the obligations of
any defaulting Underwriter, all of which shall continue until fully discharged.
The accounts arising pursuant to this Agreement with respect to the
offering of the Securities shall be settled and paid as soon as practicable
after termination hereof with respect to such offering, except that you may
reserve such amount as you deem advisable to cover any additional contingent
expenses.
You are authorized at any time:
(a) To make partial distributions of credit balances or call for
the payment of debit balances.
(b) To determine the amounts to be paid to or by us, which
determination will be final and conclusive.
(c) As compensation for your services in connection with this
Agreement with respect to the offering of the Securities, to charge our
account and pay to yourselves, when final accounting is made, an amount
per Security to be determined by you and stated in the Invitation (not
to exceed the amount or the percentage of the Underwriters' gross
spread per Security specified in the Invitation) for each Security
which we have agreed or shall become committed to purchase pursuant to
the Underwriting Agreement. If there is more than one Representative,
such compensation shall be divided among the Representatives in such
proportions as they may determine.
(d) To charge our account with (i) all transfer taxes on sales
made for our account and (ii) our underwriting proportion of all
expenses (other than transfer taxes) incurred by you, as Representative
of the several Underwriters, in connection with the transaction
contemplated by this Agreement with respect to the offering of the
Securities.
(e) To hold any of our funds at any time in your hands with your
general funds without accountability for interest.
12. DEFAULT BY UNDERWRITERS. Default by any Underwriter in respect of
its obligations hereunder or under the Underwriting Agreement shall not release
us from any of our obligations or in any way affect the liability of such
defaulting Underwriter to the other Underwriters or defaulting International
Manager, if any, to the other Underwriters or International Managers, if any,
for damages resulting from such default. If one or more Underwriters or, in the
case of a Two-Tranche Offering, International Managers default under the
Underwriting Agreement, if provided in the Underwriting Agreement, you may (but
shall not be obligated to) arrange for the purchase (and entitlement to the
underwriting commission) by others, which may include yourselves or other
non-defaulting Underwriters or other non-defaulting International Managers, if
15
any, of all or a portion of the Securities not taken up by the defaulting
Underwriters or International Managers, as the case may be.
If such arrangements are made, the respective original underwriting
commitments of the non-defaulting Underwriters and the amounts of the Securities
to be purchased by others, if any, shall be taken as the basis for all rights
and obligations hereunder, but this shall not in any way affect the liability of
any defaulting Underwriter or defaulting International Manager, if any, to the
other Underwriters or International Managers, if any, for damages resulting from
its default, nor shall any such default relieve any other Underwriter or other
International Manager, if any, of any of its obligations hereunder or under the
Underwriting Agreement except as herein or therein provided. In addition, in the
event of a default by one or more Underwriters or International Managers, if
any, in respect of their obligations under the Underwriting Agreement to
purchase the Securities agreed to be purchased by them thereunder, and to the
extent that arrangements shall not have been made by you for any person to
assume the obligations of such defaulting Underwriter or Underwriters or
International Manager or International Managers, we agree, if provided in the
Underwriting Agreement, to assume our proportionate share, based upon the ratio
of our original underwriting commitment to the aggregate original underwriting
commitments of the other non-defaulting Underwriters (except in the case of a
Two-Tranche Offering, in which case, to the aggregate original underwriting
commitments of the other non-defaulting Underwriters and non-defaulting
International Managers) of the obligations of each such defaulting Underwriter
and defaulting International Manager (subject to the limitations contained in
the Underwriting Agreement) without relieving such defaulting Underwriter or
defaulting International Manager of its liability therefor.
In the event of default by one or more Underwriters in respect of their
obligations under this Agreement to take up and pay for any securities
purchased, or to deliver any securities sold or over-allotted by you for the
respective accounts of the several Underwriters, or to bear their proportion of
expenses or liabilities pursuant to this Agreement, and to the extent that
arrangements shall not have been made by you for any persons to assume the
obligations of such defaulting Underwriter or Underwriters, we agree to assume
our proportionate share, based upon the ratio of our original underwriting
commitment to the aggregate original underwriting commitments of the other
non-defaulting Underwriters of the obligations of each defaulting Underwriter
without relieving any such defaulting Underwriter of its liability therefor.
13. DISTRIBUTION OF PROSPECTUSES AND OFFERING CIRCULARS. We are
familiar with Release No. 4968 under the Act and Rule 15c2-8 under the Exchange
Act, relating to the distribution of preliminary and final prospectuses, and we
confirm that we will comply therewith, to the extent applicable, in connection
with any sale of Securities. You shall cause to be made available to us, to the
extent made available to you by the Issuer, such number of copies of the
Prospectus as we may reasonably require for purposes contemplated by the Act,
the Exchange Act and the rules and regulations thereunder.
If an Invitation states that the offering is subject to the 48-hour
prospectus delivery requirement set forth in Rule 15c2-8(b), our Acceptance of
the Invitation shall be deemed to constitute confirmation that we have delivered
(or we will deliver) a copy of the preliminary prospectus to all persons to whom
we expect to confirm a sale of Securities and that such delivery was effected
16
(or will be effected) at least 48 hours prior to the mailing of such
confirmations of sale.
We will keep an accurate record of the names and addresses of all
persons to whom we give copies of the Registration Statement, the Prospectus,
the Offering Circular or any preliminary prospectus or preliminary offering
circular (or any amendment or supplement thereto), and, when furnished with any
subsequent amendment to the Registration Statement, any subsequent prospectus or
offering circular or any memorandum outlining changes in the Registration
Statement or any Prospectus or Offering Circular, we will, upon your request,
promptly forward copies thereof to such persons.
Our Acceptance of an Invitation relating to an offering made pursuant
to an Offering Circular shall constitute our agreement that, if requested by
you, we will furnish a copy of any amendment to a preliminary offering circular
or Offering Circular to each person to whom we shall have furnished a previous
preliminary offering circular or Offering Circular. Our Acceptance shall
constitute our confirmation that we have delivered and our agreement that we
will deliver all preliminary offering circulars and Offering Circulars required
for compliance with the 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 and, to the
extent consistent with such laws, rules and regulations, our Acceptance shall
constitute our confirmation that we have delivered and our agreement that we
will deliver all preliminary offering circulars and Offering Circulars which
would be required if the provisions of Rule 15c2-8 (or any successor provision)
under the Exchange Act applied to such offering.
14. MISCELLANEOUS. Nothing in this Agreement shall constitute us
partners with you or with the other Underwriters or render any of us liable to
make payments otherwise than as herein provided, and the obligations of
ourselves and of each of the other Underwriters are several and not joint. If
for United States federal income tax purposes the Underwriters should be deemed
to constitute a partnership, then each Underwriter elects to be excluded from
the application of Subchapter K, Chapter I, Subtitle A, of the Internal Revenue
Code of 1986, as amended, and each Underwriter authorizes you, in your
discretion, on behalf of such Underwriter, to execute such evidence of such
election as may be required by the United States Internal Revenue Service.
Default by any Underwriter with respect to the Underwriting Agreement shall not
release us from any of our obligations thereunder or hereunder.
Unless we have promptly notified you in writing otherwise, our name as
it should appear in the Prospectus or the Offering Circular and our address are
set forth below and we hereby consent to being so named in the Prospectus or the
Offering Circular.
Any notice from you to us shall be deemed to have been given if mailed,
telefaxed or hand delivered, or telephoned and subsequently confirmed in
writing, to the address set forth in our reply to the Invitation.
We confirm that we are a member in good standing of the NASD or that we
are a foreign bank or dealer not eligible for membership in the NASD. In making
sales of Securities, if we are such a member, we agree to comply with all
applicable rules of the NASD, including, without limitation, the NASD's
17
Interpretation with Respect to Free-Riding and Withholding and Rule 2740 of the
NASD Conduct Rules, or, if we are such a foreign bank or dealer, we agree to
comply with such Interpretation, Rules 2730, 2740 and 2750 of the NASD Conduct
Rules as though we were such a member and Rule 2420 of the NASD Conduct Rules as
it applies to a non-member broker or dealer in a foreign country.
If we are a foreign bank or dealer and we are not registered as a
broker-dealer under Section 15 of the Exchange Act, we agree that while we are
acting as an Underwriter in respect of the Securities and in any event during
the term of this Agreement with respect to the offering of the Securities, we
will not directly or indirectly effect in, or with persons who are nationals or
residents of, the United States any transactions (except for the purchases
provided for in the Underwriting Agreement and transactions contemplated by
Sections 4, 6 and 7 hereof) in (i) Securities, (ii) Common Stock, if the
Securities are Common Stock or securities of the Issuer that may be exchanged
for or converted into Common Stock or (iii) any other securities of the Issuer
designated in the Invitation.
If we are a foreign bank or dealer, we represent that in connection
with sales and offers to sell Securities made by us outside the United States
(a) we will not offer or sell any Securities in any jurisdiction except in
compliance with applicable laws and (b) we will either furnish to each person to
whom any such sale or offer is made copy of the then current preliminary
prospectus or preliminary offering circular, if any, or of the Prospectus or the
Offering Circular (as then amended or supplemented), as the case may be, or
inform such person that such preliminary prospectus or preliminary offering
circular, if any, or Prospectus or the Offering Circular will be available upon
request. Any offering material in addition to the then current Prospectus or the
Offering Circular furnished by us to any person in connection with any offers or
sales referred to in the preceding sentence (i) shall be prepared and so
furnished at our sole risk and expense and (ii) shall not contain information
relating to the Securities or the Issuer that is inconsistent in any respect
with the information contained in such Prospectus or Offering Circular (as then
amended or supplemented), as the case may be. It is understood that no action
has been taken by you or the Issuer or any seller of the Securities to permit a
public offering in any jurisdiction other than the United States where action
would be required for such purpose.
We also confirm that our commitment to purchase Securities pursuant to
the Underwriting Agreement will not result in a violation of Rule 15c3-1 under
the Exchange Act or of any similar provisions or any applicable rules of any
securities exchange to which we are subject or of any restriction imposed upon
us by any such exchange or governmental authority.
We agree that we will notify you immediately of any development before
the termination of this Agreement with respect to the offering of the Securities
which makes untrue or incomplete any information that we have given or are
deemed to have given in response to the Underwriters' Questionnaire.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
Please confirm this Agreement and deliver a copy to us.
18
Very truly yours,
Name of Firm:
By: ________________________________
Authorized Officer or Partner
Name:
Title:
Address:
19
Confirmed as of the date first above written.
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
By: ____________________________________
Vice President - Syndicate Manager
20
EXHIBIT A
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
MASTER UNDERWRITERS' QUESTIONNAIRE
----------------------------------
In connection with each offering of Securities pursuant to the ▇.▇.
▇▇▇▇▇▇▇ & Sons, Inc. Master Agreement Among Underwriters dated September 1998
(the AGREEMENT), each Underwriter confirms the following information, except as
indicated in such Underwriter's Acceptance or other written communication
furnished to ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. prior to the effectiveness of such
Underwriter's commitment to purchase the Securities referenced in the Invitation
relating to such offering. Defined terms used herein have the same meaning as
defined terms in the Agreement.
(a) Neither such Underwriter nor any of its directors, officers or
partners have (nor had within the last three years) any material (as defined in
Regulation C under the Act) relationship with the Issuer, its parent (if any),
any other seller of the Securities or any guarantor or insurer of the
Securities, nor has such Underwriter or any of such persons been, at any time
during the last three years, or are now, an officer or director of the Issuer,
its parent (if any), any other seller of the Securities or any guarantor or
insurer of the Securities or an associate (as defined in such Regulation C) of
any officer or director of the Issuer, its parent (if any), any other seller of
the Securities or any guarantor or insurer of the Securities or any other person
who, to the knowledge of such Underwriter, owns (either beneficially, determined
in accordance with Rule 13d-3 promulgated by the Commission under the Exchange
Act, or of record) more than 5% of the outstanding shares of any class of voting
securities of the Issuer, its parent (if any), any other seller of the
Securities or any guarantor or insurer of the Securities.
(b) Except as described or to be described in the Agreement, the
Underwriting Agreement, the Agreement Between U.S. Underwriters and
International Managers or the Invitation, such Underwriter does not know: (i) 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, or of any other discounts or
commissions to be allowed or paid to the Underwriters or of any other items that
would be deemed by the NASD to constitute underwriting compensation for purposes
of the NASD Conduct Rules, (ii) of any intention to over-allot, or (iii) that
the price of any security may be stabilized to facilitate the offering of the
Securities.
(c) If the offer and sale of the Securities are to be registered under
the Act pursuant to a Registration Statement on Form S-1, no report or
memorandum has been prepared or distributed by such Underwriter for external use
(i.e., outside such Underwriter's organization) in connection with the proposed
offering of Securities, such Underwriter has not prepared or distributed or had
prepared or distributed for it, within the past 12 months, any engineering,
management or similar report or memorandum relating to broad aspects of the
business, operations or products of the Issuer, its parent (if any) or any
guarantor or insurer of the Securities. (The immediately preceding sentence does
not apply to reports solely comprised of recommendations to buy, sell or hold
the securities of the Issuer, its parent (if any) or any guarantor or insurer of
the Securities, unless such recommendations have changed within the past six
months, or to information already contained in documents filed with the
Commission.) If any such report or memorandum has been prepared or distributed,
furnish to ▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. four (4) copies thereof and identify each
class of persons to whom the report or memorandum was distributed, the number of
copies distributed to each class and the period of distribution.
(d) If the Securities are debt securities to be issued under an
indenture to be qualified under the United States Trust Indenture Act of 1939
(the TIA), neither such Underwriter nor any of its directors, officers or
partners is an "affiliate," as that term is defined in Rule 0-2 under the TIA,
of the Trustee for the Securities as specified in the Invitation, or of its
parent (if any). Neither such Trustee nor its parent (if any) nor any of their
directors or executive officers is a "director, officer, partner, employee,
appointee or representative" of such Underwriter as those terms are used in the
TIA or in the relevant instructions to Form T-1. Such Underwriter and its
directors, partners or executive officers, taken as a group, did not 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 such Underwriter is a corporation, it
does not have outstanding nor has it assumed or guaranteed any securities issued
otherwise than in its present corporate name.
(e) If the Issuer is public utility, such Underwriter is 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 United States Public
Utility Holding Company Act of 1935.
(f) Neither such Underwriter nor any of its directors, officers or
partners, individually or as part of a "group" (as that term is used in Section
13(d)(3) of the Exchange Act) of which it is a member is the beneficial owner
(determined in accordance with Rule 13d-3 promulgated by the Commission under
the Exchange Act) of more than 5% of any class of voting securities of the
Issuer, its parent (if any), or any guarantor or insurer of the Securities nor
does it have any knowledge that more than 5% of any class of voting securities
of the Issuer, parent (if any) or guarantor or insurer of the Securities is held
or to be held subject to any voting trust or other similar agreement.
(g) If the Invitation states that the offering is subject to review by
the NASD pursuant to its Corporate Financing Rule, neither such Underwriter nor
any of its directors, officers, partners or "persons associated with" it (as
defined in the By-Laws of the NASD), nor to its knowledge, any "related person"
(defined by the NASD to include counsel, financial consultants and advisers,
finders, members of the selling or distribution group, any NASD member
participating in the public offering and any and all other persons associated
with or related to and members of the immediate family of any of the foregoing)
or any other broker-dealer (i) within the last 12 months has purchased in
private transactions, or intended before, at or within six months after the
commencement of the offering of the Securities to purchase in private
transactions, any securities of the Issuer or any Issuer-Related Party (as
hereinafter defined), (ii) within the last 12 months had any dealings with the
Issuer, any selling security holder 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 (iii) during the 12 months immediately preceding
the filing of the Registration Statement, or if there is none, of the Offering
Circular, has entered into any arrangement that provided or provides for the
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receipt of any item of value (including, but not limited to, cash payments and
expense reimbursement) and/or the transfer of any warrants, options or other
securities from the Issuer or any Issuer-Related Party to such Underwriter or
any related person. For purposes of this paragraph (g) the term ISSUER-RELATED
PARTY means any selling security holder offering securities to the public, any
affiliate of the Issuer or a selling security holder and the officers or general
partners, directors, employees and security holders thereof. (If there are any
exceptions, state the identity of the person with whom the affiliation or
association exists, and, if relevant, the number of equity securities or the
face value of debt securities owned by such person, the date such securities
were acquired and the price paid for such securities.)
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