Exhibit (h)(v)
▇.▇. ▇▇▇▇▇▇▇ & SONS, INC.
MASTER AGREEMENT AMONG UNDERWRITERS
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 Q) 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 ▇▇▇▇
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. A11 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 fled 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
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delayed delivery and 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 purchases, 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 Underwrites as nearly as practicable in the ratio that
Securities (including any Securities purchased from the International
Manages 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
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Managers) of all Underwriters so 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
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otherwise (in addition to purchases and sales made under 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 shal1 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
10
available funds, unless otherwise specified in the 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
of this
11
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 1S 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,
13
damage, liability or expense which is paid or incurred by such Underwriter
as a result of such claim being asserted against it, and, if such loss,
damage, liability or expense is paid or incurred by such Underwriter
subsequent to any payment by it pursuant to this paragraph, appropriate
provision shall be made to effect such credit, by refund or otherwise. If
any claim to which the provisions of this paragraph would be applicable is
asserted, ▇.▇. ▇▇▇▇▇▇▇ & 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,
15
if any, of al1 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, shal1 be taken as the basis for all rights
and obligations hereunder, but this shal1 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 shal1 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 shal1 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 wil1 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 lSc2-8(b), our Acceptance of
the Invitation shal1 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
16
delivery was effected (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 l5c2-8 (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
17
limitation, the NASD's 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 l5c3-1 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: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
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-l, 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. (7Ihe 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
1
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
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into any arrangement that provided or provides for the 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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