Exhibit 1.3
MASTER AGREEMENT AMONG UNDERWRITERS
__________, 2000
The Xxxxxxx Co.
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
1. GENERAL. We understand that The Xxxxxxx Co. ("Xxxxxxx Co.") is
entering into this Agreement in counterparts with us and other firms who may be
underwriters for issues of securities in which Xxxxxxx Co. is acting as the
representative or one of the representatives of the several underwriters (the
"Representative" or "Representatives"). Whether or not we have executed this
Agreement, this Agreement shall apply to any offering of securities in which we
elect to act as an underwriter after receipt of an invitation from Xxxxxxx Co.
stating the identity of the issuer, certain terms of the securities proposed to
be offered, the amount of our proposed participation, the names of the other
Representatives, if any, and stating that our participation as an underwriter in
the proposed offering shall be subject to the provisions of this Agreement.
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. Such
information may be conveyed by you in one or more communications (such
communications received by us with respect to an offering being hereinafter
collectively referred to as the "Invitation"). This Agreement, as amended or
supplemented by the Invitation, shall become binding upon us and the
Representatives with respect to such offering if you receive our oral or written
acceptance 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"). If we have not previously executed this Agreement, by our
Acceptance we shall be deemed to be signatories hereof with respect to the
offering to which the Acceptance relates. To the extent that any terms contained
in the Invitation are inconsistent with any provisions herein, such terms shall
supersede any such provisions. Our Acceptance will also constitute our
confirmation that, except as otherwise stated in such Acceptance, each
applicable statement included in the Master Underwriters' Questionnaire attached
as Exhibit A hereto (or otherwise furnished to us) is correct. We agree to
notify you immediately of any development before the termination of the Offering
Provisions pursuant to Section 11(a) hereof with respect to any particular
offering of Securities (as defined below) which makes untrue or incomplete any
information that we have given or are deemed to have given in response to the
Master Underwriters' Questionnaire. The obligations of each underwriter shall be
several and not joint. The securities offered in any offering of securities made
pursuant to this Agreement, including any guarantees relating to such securities
or any other securities into which such securities are convertible or for which
such securities are exercisable or exchangeable and any securities that may be
purchased upon exercise of an over-allotment option, are hereinafter referred to
as the "Securities." The issuer or issuers of the Securities are hereinafter
referred to as the "Company." All references herein to "you" or the
"Representatives" shall include Xxxxxxx Co. and the other firms, if any, which
are named as Representatives in the Invitation. Except as otherwise provided in
Section 11(c), the following provisions of this Agreement shall apply separately
to each individual offering of Securities.
2. UNDERWRITING ARRANGEMENTS. The Representatives shall determine which
signatories or other parties deemed to be signatories to this Agreement will be
invited to become underwriters for the Securities. Changes may be made by the
Representatives in those who are to be underwriters and in the respective
amounts of Securities to be purchased by them, but the amount of Securities to
be purchased by us as set forth in the Invitation will not be changed without
our consent except as provided in the underwriting or purchase agreement or any
associated terms or similar agreement with the Company or any selling
securityholders or any amendment or supplement thereto (collectively, the
"Underwriting Agreement") covering the Securities. We authorize you on our
behalf to exercise and deliver the Underwriting Agreement or any agreement
between or among Underwriters (as defined below), on the one hand, and one or
more groups of underwriters for the Securities not acting as such pursuant to
this Agreement, on the other hand (an "Intersyndicate Agreement"), in such terms
as you determine and to take such action as you deem advisable in connection
with the performance of the Underwriting Agreement, any Intersyndicate Agreement
and this Agreement and the purchase, carrying, sale and distribution of the
Securities. The parties on whose behalf you execute the Underwriting Agreement
are hereinafter referred to as the "Underwriters." Xxxxxxx Co. may waive
performance or satisfaction by the Company, any selling securityholders or any
other party to the Underwriting Agreement of certain of its or their obligations
or conditions included in the Underwriting Agreement, if, in Xxxxxxx Co.'s sole
discretion, such waiver will not have a material adverse effect upon the
interests of the Underwriters. It is understood that, if so specified in the
Invitation for the issue, arrangements may be made for the sale of Securities by
the Company or selling securityholders pursuant to delayed delivery contracts
(the "Delayed Delivery Contracts"). Such Securities are hereinafter referred to
as "Delayed Delivery Securities." Securities for which such contracts are not
entered into by the Company or selling securityholders are hereinafter referred
to as "Immediate Delivery Securities." References herein to delayed delivery and
Delayed Delivery Contracts apply only to offerings in which delayed delivery is
authorized. The term "Underwriting Obligation," as used in this Agreement with
respect to any Underwriter, shall refer to the principal amount or number of
shares or units of the Securities (plus such additional Securities as may be
required by the Underwriting Agreement to be purchased by such Underwriter in
the event of a default by one or more of the Underwriters) which such
Underwriter is obligated to purchase pursuant to the provisions of the
Underwriting Agreement, without regard to any reduction in such obligation as a
result of Delayed Delivery Contracts which are entered into by the Company.
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 respective 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 Underwriters.
As compensation for your services we will pay a management fee as
specified in the Invitation for the offering (without deduction with respect to
Delayed Delivery Securities), and you may charge our account therefor. If there
is more than one Representative, such compensation will be divided among the
Representatives in such proportions as they determine.
3. PROSPECTUS AND REGISTRATION STATEMENT; OFFERING CIRCULAR. We
understand that if registration of the offer and sale of the Securities as
contemplated by the Underwriting Agreement is required under the Securities Act
of 1933, as amended (the "Securities Act"), you will either provide us with the
file number or numbers of the registration statement or statements filed with
the Securities and Exchange Commission (the "Commission") with respect to the
Securities or, as soon as practicable after the later of the date of the
Invitation or the date made available to you by the Company, furnish to us (or
make available for our review in your office) a copy of such registration
statement or statements (other than any documents incorporated therein by
reference and any exhibits) and any amendments thereto. In any event you will
furnish to us, as soon as practicable after sufficient quantities thereof are
made available to you by the Company, copies of the prospectus or supplemented
prospectus (excluding any documents incorporated by reference therein) to be
used in connection with the offering of the Securities. As used herein,
"Prospectus" means the form of prospectus (including any supplement and any
documents incorporated by reference therein; provided, however, that a
supplement to the Prospectus filed with the Commission pursuant to Rule 424
under the Securities Act with respect to an offering of Securities shall be
deemed to have supplemented the Prospectus only with respect to the offering of
Securities to which it relates) authorized for use in connection with such
offering, and "Registration Statement" means the registration statement (as
amended and including any documents incorporated by reference therein) under
which the offer and sale of the Securities are registered under the Securities
Act.
We understand that if the offer and sale of the Securities are exempt from
the registration requirements of the Securities Act, no registration statement
will be filed with the Commission. In any such case involving an offering
circular or other offering materials to be used in connection with the offering
of the Securities (any such circular or materials, as it or they may be amended
or supplemented, being hereinafter referred to as the "Offering Circular"), you
will either provide us with information as to the availability of a preliminary
offering circular through a specified regulatory authority or, as soon as
practicable after the later of the date of the Invitation or the date made
available to you by the Company, furnish to us (or make available for our review
in your office) a copy of any preliminary Offering Circular or a proof of the
Offering Circular. In any event, in any such offering involving an Offering
Circular you will furnish to us, as soon as practicable after sufficient
quantities thereof are made available to you by the Company, copies of the final
Offering Circular. The Prospectus or Offering Circular, as the case may be,
relating to an offering of Securities is herein referred to as the "Offering
Document."
We understand that we are not authorized to give any information or make
any representations not contained in the Offering Document, as amended or
supplemented, or in any document incorporated by reference therein in connection
with the offering of the Securities. Our Acceptance of an Invitation shall
constitute our agreement that, if requested by you, we will furnish a copy of
any amendment or supplement to any preliminary or final Offering Document to
each person to whom we have furnished a previous preliminary or final Offering
Document. Our Acceptance of an Invitation relating to an offering of Securities
registered under the Securities Act shall constitute (i) our acknowledgment that
we are familiar with the Registration Statement, including the documents
incorporated by reference therein and the forms of Underwriting Agreement and
indenture or other document describing the terms of the Securities filed as
exhibits thereto or otherwise made available to us, with any preliminary
Prospectus, preliminary supplemented Prospectus or Prospectus relating to the
Securities theretofore filed with the Commission, and with the information to be
set forth in an amendment to the Registration Statement or in the Prospectus
proposed to be filed with the Commission, (ii) our confirmation that we have
delivered, and our agreement that we will deliver, all preliminary and final
Prospectuses required for compliance with the provisions of Securities Act
Release No. 4968 and Rule 15c2-8 (or any successors thereto) under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and (iii) our
authorization that you, with the approval of counsel for the Underwriters, may
approve on our behalf any amendments or supplements to the Registration
Statement or Prospectus. Each Underwriter shall (i) keep an accurate record of
the names and addresses of all persons to whom it delivers copies of the
Registration Statement, any amendment thereto or any preliminary Prospectus or
any document incorporated therein by reference, and (ii) upon your request,
furnish promptly to the persons who received copies of the foregoing documents,
any subsequent amendment, revised preliminary Prospectus, Prospectus, any
document incorporated by reference or any memorandum furnished to the
undersigned outlining changes in the Registration Statement or any preliminary
Prospectus. Our Acceptance of an Invitation relating to an offering of
Securities exempt from registration under the Securities Act shall constitute
(i) our
acknowledgment that we are familiar with the information set forth in any
preliminary Offering Circular or proof of the Offering Circular made available
to us and with the information to be set forth in the Offering Circular, (ii)
our confirmation that we have delivered, and our agreement that we will deliver,
all preliminary and final 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 (iii) to the extent consistent with such
laws, rules and regulations, our confirmation that we have delivered and our
agreement that we will deliver all preliminary and final Offering Circulars that
would be required if the provisions of Securities Act Release No. 4968 and Rule
15c2-8 (or any successor provisions thereto) under the Exchange Act applied to
such offering. Insofar as it relates to us, the information in the Registration
Statement as amended to this date and in the final form of Offering Document
does not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and we are willing to proceed with underwriting of the
Securities in the manner contemplated in the Underwriting Agreement and
described in the final form of Offering Document. We consent to being named in
the Offering Document as one of the Underwriters of the Securities, and, unless
we promptly notify you in writing or otherwise, our name as it should appear in
the Offering Document and our address are as set forth on the signature page
hereof.
4. PUBLIC OFFERING.
(a) We authorize you, as Representatives of the several
Underwriters, to manage the underwriting and the public offering of the
Securities and to take such action in connection therewith and in connection
with the purchase of the Securities and the carrying and resale of the
Securities, including without limitation the following, as you in your sole
discretion deem appropriate or desirable:
(i) to determine the time of the initial public offering;
(ii) to determine the amount of Securities, if any, to be
purchased by the Underwriters pursuant to any over-allotment option;
(iii) to change the public offering price and the concessions
and discounts to dealers after the initial public offering;
(iv) to furnish the Company with the information to be
included in the Registration Statement or Offering Document with respect to the
terms of the offering; and
(v) to determine all matters relating to advertising and
communications with dealers or others.
Our Acceptance shall constitute our representation that we have not
advertised the offering and we agree that we will not do so until after the
earlier of the Closing Date (as defined in the Underwriting Agreement) or such
date as you shall publicly advertise the offering. We understand that any
advertisement we may then make will be our own responsibility and at our own
expense.
We also authorize you, in your discretion, to reserve for sale and to sell
to dealers and others, which may include any Underwriters, selected by you
("Selected Dealers"), and to reserve for sale pursuant to Delayed Delivery
Contracts arranged by you through Selected Dealers, all or part of the
Securities to be purchased by us, all as you shall determine. Any such sale to
Selected Dealers may be made pursuant to the terms and conditions of your Master
Selected Dealers' Agreement or otherwise, as you may determine. Each Selected
Dealer shall be a person (a "Dealer") who is (i) a broker or dealer (as defined
in the By-Laws of the National Association of Securities Dealers, Inc. (the
"NASD")) actually engaged in the investment banking or securities business and
(a) a member in good standing of the NASD that makes the representations and
agreements applicable to such a member contained in Section 18 hereof or (b) a
foreign bank, broker, dealer or other institution not eligible for membership in
the NASD (a "foreign non-member") that makes the representations and agreements
applicable to such foreign institutions contained in Section 18 hereof, or (ii)
a "bank" as defined in Section 3(a)(6) of the Exchange Act (a "Bank") that is
not a member of the NASD and that makes the representations and agreements
applicable to Banks contained in Section 18 hereof. Reservations for sales to
Selected Dealers for our account need not be in proportion to our Underwriting
Obligation, but sales of Securities reserved for our account for sale to
Selected Dealers shall be made as nearly as practicable in the ratio which the
amount of Securities reserved for our account bears to the aggregate amount of
Securities reserved for the account of all Underwriters, as calculated from day
to day. The price to Selected Dealers initially shall be the public offering
price less a concession not in excess of the Selected Dealers' concession set
forth in the Invitation and the price to persons other than Selected Dealers
shall be the public offering price. With your consent, the Underwriters may
allow, and Selected Dealers may re-allow, a discount on sales to Dealers in an
amount not in excess of the amount set forth in the Invitation. Upon your
request, we will advise you of the identity of any Dealer to whom we allow such
a discount and any Underwriter or Selected Dealer from whom we receive such a
discount.
We also authorize you, in your discretion, to buy Immediate Delivery
Securities for our account from Selected Dealers at the public offering price
less such amount not in excess of the Selected Dealers' concession as you
determine.
At or before the time the Securities are released for sale, you shall
notify us of the amount of Securities that has not been reserved for our account
for sale to Selected Dealers and for sale pursuant to Delayed Delivery Contracts
and the amount that is to be retained by us for direct sale. After advice from
you that the Securities are released for public offering, we will offer to the
public in conformity with the terms of the offering set forth in the Offering
Document such of our Securities as you advise are not reserved, not allowing any
discounts from the public offering price except as therein or herein provided.
In connection with any offering of Securities that are registered under the
Securities Act and issued by a Company that was not, immediately prior to the
filing of the Registration Statement, subject to the requirements of Section
13(a) or 15(d) of the Exchange Act, we agree that unless otherwise advised by
you and disclosed in the Prospectus we will not make sales to any account over
which we exercise discretionary authority with respect to that sale.
We will from time to time, upon your request, report to you the amount of
Securities retained by us for direct sale that remains unsold. Upon your
request, we will deliver to you for our account, or sell to you for the account
of one or more of the Underwriters, such amount of unsold Securities as you may
designate at the public offering price less, in the case of sales or deliveries
for the account of Selected Dealers, an amount determined by you not in excess
of the concession to Selected Dealers. You may also repurchase Securities from
other Underwriters and Selected Dealers, for the account of one or more of the
other Underwriters at the public offering price less, in the case of purchases
for the account of Selected Dealers, an amount determined by you not in excess
of the concession to Selected Dealers.
You may from time to time deliver to any Underwriter, for carrying
purposes or for sale by such Underwriter, any of the Securities then reserved
for sale pursuant to Delayed Delivery Contracts or for sale to, but not
purchased and paid for by, Selected Dealers, all as above provided; however, to
the extent that Securities are so delivered for sale by such Underwriter, the
amount of Securities then reserved for the account of such Underwriter shall be
correspondingly reduced. Securities delivered for carrying purposes only shall
be redelivered to you upon demand.
If, in accordance with the terms of offering set forth in the Offering
Document, the offering of the Securities is not at a fixed price but at varying
prices set by individual Underwriters based on market prices or at negotiated
prices, the provisions of the first paragraph of this Section relating to your
right to change the public offering and concessions and discounts to dealers
shall not apply, and other references in this Section and elsewhere in this
Agreement to the public offering price or Selected Dealers' concession shall be
deemed to mean the prices and concessions determined by you from time to time in
your discretion.
Any Securities sold by us (otherwise than through you) which you purchase
in the open market for the account of any Underwriter will be repurchased by us
on demand at the cost of such purchase plus commissions and taxes on redelivery.
Securities delivered on such repurchase need not be the identical certificates
so purchased. In lieu of such action you may in your discretion sell the same
for our account, publicly or privately, without notice, at such prices and upon
such terms and to such persons, including any of the several Underwriters, as
you may determine, and debit or credit our account for the loss or profit
resulting from such sale, or charge our account with an amount not in excess of
the Selected Dealers' concession with respect to such Securities.
5. DELAYED DELIVERY ARRANGEMENTS. We authorize you to act on our behalf
in making all arrangements for the solicitation of offers to purchase Delayed
Delivery Securities from the Company pursuant to Delayed Delivery Contracts, and
we agree that all such arrangements will be made only through you, directly or
through Selected Dealers (including Underwriters acting as Selected Dealers) to
whom you may pay a commission as provided in the Offering Document and herein.
The obligation of each of the Underwriters to purchase and pay for
Securities as set forth in the Underwriting Agreement shall be reduced in the
proportion provided for therein, except that (i) as to any Delayed Delivery
Contract determined by you, in your discretion, to have been directed and
allocated by a purchaser to a particular Underwriter, such obligation of such
Underwriter shall be reduced by the amount of Delayed Delivery Securities
covered thereby, (ii) as to any Delayed Delivery Contracts for which
arrangements are made through Selected Dealers, such obligation of each
Underwriter shall be reduced as nearly as practicable in the proportion
determined by you that the amount of Securities of such Underwriter reserved and
sold pursuant to Delayed Delivery Contracts arranged through Selected Dealers
bears to the total Securities so reserved and sold, and (iii) such reductions
shall be rounded, as you shall determine, to the nearest $1,000 principal amount
or whole share or unit of the Securities.
The fee payable by the Company to each Underwriter with respect to Delayed
Delivery Securities pursuant to the Underwriting Agreement shall be credited to
the account of such Underwriter based upon the amount by which such
Underwriter's Underwriting Obligation is reduced as specified in the preceding
paragraph.
If the amount of Delayed Delivery Securities applied to reduce an
Underwriter's Underwriting Obligation and the amount of Immediate Delivery
Securities sold by or for the account of such Underwriter exceeds such
Underwriter's Underwriting Obligation, there shall be credited to such
Underwriter with respect to such excess amount of Securities only the amount of
the Selected Dealers' concession; provided, however, that no amount shall be
credited to such Underwriter with respect to such excess amount of such
Securities if such Underwriter is a Bank and the Securities do not constitute
"exempted securities" within the meaning of Section 3(a)(12) of the Exchange
Act.
The commissions payable to Selected Dealers with respect to Delayed
Delivery Contracts arranged through them shall be charged to each Underwriter in
the proportion which the amount of Securities of such Underwriter reserved and
sold pursuant to Delayed Delivery Contracts arranged through Selected Dealers
bears to the total Securities so reserved and sold.
6. PAYMENT AND DELIVERY. We authorize you to make payment on our behalf
to the Company or any selling securityholder of the purchase price of our
Securities, to take delivery of our Securities, and to deliver our reserved
Securities against sales. Unless notified at least one (1) full business day
prior to the date of delivery to make other arrangements, you may, in your
discretion, advise the Company or any selling securityholders to prepare each
Underwriter's certificates for the Securities to
be purchased by it in the name of such Underwriter (or in such other name as you
shall designate, but such other name shall be for administrative convenience
only and shall not affect such Underwriter's title to such Securities or the
several nature of the obligations of the Underwriters hereunder) in such
denominations as you may determine. Any payment by you in accordance with this
Section will not relieve us from any of our obligations under this Agreement or
under the Underwriting Agreement. If you have not received 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. At your request, on or
before such dates and in the manner that you specify in the Invitation, we will
pay you an amount equal to the public offering price, less the selling
concession, of either our Securities or our unreserved Securities as you direct,
and such payment will be credited to our account and applied to the payment of
the purchase price. After you receive payment for reserved Securities sold for
our account, you will remit to us the purchase price (if any) paid by us for
such Securities and credit or debit our account with the difference between the
sale prices and the purchase price thereof. You will make available for delivery
to each Underwriter at the office of The Xxxxxxx Co., 000 Xxxx Xxxxx Xxxxxx,
Xxxxx 0000, Xxxxxxxxx, Xxxxxxxx 00000 (or at such other address as the
Underwriter may be notified by the Representatives) our unreserved Securities as
soon as practicable after such Securities have been delivered to the
Representatives, and our reserved but unsold Securities, against payment of the
purchase price therefor (except in the case of Securities for which payment has
previously been made), except that if the aggregate amount of reserved but
unsold Securities upon such termination does not exceed twenty percent (20%) of
the total amount of the Securities, you may in your discretion sell such
reserved but unsold Securities for the accounts of the several Underwriters as
soon as practicable after such termination, at such prices and in such manner as
you determine.
In the event that 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.
Notwithstanding the foregoing provisions of this Section 6, if
transactions in the Securities can be settled through the facilities of The
Depository Trust Company or any other depository or similar facility, if we are
a member, you are authorized, in your discretion, to make appropriate
arrangements for payment and/or delivery through its facilities of the
Securities to be purchased by us, or if we are not a member, settlement may be
made through a correspondent that is a member pursuant to our timely
instructions.
7. AUTHORITY TO BORROW. In connection with the purchase or carrying of
our Securities or other securities purchased for our account, we authorize you,
in your discretion, to advance your funds for our account, charging current
interest rates, to arrange loans for our account, and in connection therewith to
execute and deliver any notes or other instruments and hold or pledge as
security any of our Securities or such other securities. Any lender may rely
upon your instructions in all matters relating to any such loan. Any Securities
or such other securities held by you for our account may be delivered to us for
carrying purposes, and if so delivered will be redelivered to you upon demand.
8. STABILIZATION AND OVER-ALLOTMENT. We authorize you, in your
discretion, to make purchases and sales of Securities, any other securities of
the Company, or any guarantor of the Securities (as specified in the
Invitation), of the same class and series and any other securities of the
Company or any guarantor of the Securities which you may designate in the open
market or otherwise, for long or short account, on such terms as you deem
advisable, and to over-allot in arranging sales. The existence of this provision
is no assurance that the price of the Securities will be stabilized or that
stabilizing, if commenced, may not be discontinued at any time. Such purchases
and sales and over-allotments will be made for the accounts of the Underwriters
as nearly as practicable in proportion to their respective Underwriting
Obligations. It is understood that you may have made purchases of securities of
the Company or any guarantor of the Securities for stabilizing purposes prior to
the time when we become
one of the Underwriters, and we agree that any securities so purchased shall be
treated as having been purchased for the respective accounts of the Underwriters
pursuant to the foregoing authorization. We authorize you, in your discretion,
to cover any short position incurred pursuant to this Section by purchasing
securities on such terms as you deem advisable. Except as provided in this
Section 8, at no time will our net commitment under the foregoing provisions of
this Section 8 exceed twenty percent (20%) of our Underwriting Obligation,
excluding Securities which may be purchased upon exercise of an over-allotment
option. In the case of our net commitment for short account, our net commitment
will be computed assuming that all Securities which may be purchased upon
exercise of an over-allotment option are acquired. We will on demand take up at
cost any Securities so purchased and deliver any Securities so sold or
over-allotted for our account, and, if any other Underwriter defaults in its
corresponding obligation and the Underwriting Agreement is not terminated in
accordance with its terms pursuant to such default, we will assume our
proportionate share of such obligation without relieving the defaulting
Underwriter from liability. Upon request, we will advise you of the Securities
retained by us and unsold and will sell to you for the account of one or more of
the Underwriters such of our unsold Securities and at such price, not less than
the net price to Selected Dealers nor more than the public offering price, as
you determine.
If you effect any stabilizing purchase pursuant to this Section 8, you
shall promptly notify us of the date and time of the first stabilizing purchase
and the date and time when stabilizing was terminated. You shall prepare and
maintain such records as are required to be maintained by you as manager
pursuant to Rule 17a-2 under the Exchange Act.
Notwithstanding the foregoing provisions of this Section 8, you may not
make such purchases and sales and over-allotments for our account if we have
prior thereto advised you in writing that we are (i) a U.S. bank (other than a
U.S. bank which is empowered to underwrite and deal in securities of the type
being offered), (ii) a bank holding company (as defined in the United States
Bank Holding Company Act of 1956 (the "BHC Act")), (iii) a foreign bank (as
defined in Section 1(b)(7) of the United States International Banking Act of
1978 ("IBA")) that operates a branch, agency or company organized under Article
XII of the New York State Banking Law in the United States or a company of which
such a foreign bank is a subsidiary, or (iv) a company (other than a company
which has received approval under Section 4(c)(8) of the BHC Act to engage in
underwriting and dealing in securities of the type being offered) more than five
percent (5%) of any class of voting shares of which are owned or controlled,
directly or indirectly, by an entity covered in (ii) or (iii) above.
9. OPEN MARKET TRANSACTIONS. Until termination of this Agreement as
provided in Section 11(a), unless this restriction is sooner terminated by you,
we agree not to bid for, purchase, sell or attempt to induce others to purchase
or sell, directly or indirectly, either before or after issuance of the
Securities, any of the Securities or securities exchangeable for, or convertible
into, or exercisable against the Securities, any security of the same class and
series as the Securities and any right to purchase or sell the Securities or any
such security, including trading in any put or call option on any such security
other than (a) as provided for in this Agreement, or in the Underwriting
Agreement or (b) as a broker in executing unsolicited orders.
We represent that we have not participated in any transaction prohibited
by the preceding paragraph and that we have at all times complied with and will
at all times comply with the provisions of Rule 139 of the Securities Act and
Regulation M of the Exchange Act, each as interpreted by the Commission.
10. NET CAPITAL. We represent that the incurrence by us of our
obligations hereunder and under the Underwriting Agreement in connection with
the offering of the Securities will not place us in violation of Rule 15c3-1
under the Exchange Act, if such requirements are applicable to us, or, if we are
a financial institution subject to regulation by the Board of Governors of the
Federal Reserve System, the
Comptroller of the Currency or the Federal Deposit Insurance Corporation, will
not place us in violation of the capital requirements of such regulator or any
other regulator to which we are subject.
11. TERMINATION; AMENDMENT.
(a) With respect to each offering of Securities pursuant to this
Agreement, all limitations in this Agreement on the price at which Securities
may be sold, the last paragraph of Section 4(a) referring to repurchase from or
resale by you of our previously sold Securities, the authority to stabilize and
over-allot in the first sentence of Section 8, and the restrictions on open
market transactions contained in Section 9 (collectively, the "Offering
Provisions") will terminate at the close of business on the forty-fifth (45th)
day after the date of the initial public offering or pursuant to the
Underwriting Agreement, whichever is later, unless in either such case the
effectiveness of such Offering Provisions is extended as hereinafter provided.
You may extend the effectiveness of the Offering Provisions up to an additional
fifteen (15) days in the aggregate by notice or notices to us to the effect that
the Offering Provisions of this Agreement are extended to the date or by the
number of days indicated in such notice or notices. You may terminate any or all
of the Offering Provisions at any prior time by notice to the Underwriters. All
other provisions of this Agreement shall remain operative and in full force and
effect with respect to such offering.
(b) This Agreement may be terminated by either party hereto upon
five (5) business days' written notice to the other party; provided, however,
that with respect to any particular offering of Securities, if you receive any
such notice from us after our Acceptance for such offering, this Agreement shall
remain in full force and effect as to such offering and shall terminate with
respect to such offering and all previous offerings only in accordance with and
to the extent provided in subsection (a) of this Section 11.
(c) This Agreement may be supplemented or amended by you by notice
to us by written communication and, except for supplements or amendments set
forth in an Invitation, any such supplement or amendment to this Agreement shall
be effective with respect to any offering to which this Agreement applies after
the date of such supplement or amendment. Each reference to "this Agreement"
herein shall, as appropriate, be to this Agreement as so supplemented and
amended.
12. EXPENSES AND SETTLEMENT. Except as otherwise provided herein, you
may charge our account with any transfer taxes on sales made by you of
Securities purchased by us under the Underwriting Agreement and with our
proportionate share (based upon our Underwriting Obligation) of all other
expenses incurred by you under this Agreement or in connection with the
purchase, carrying, sale or distribution of the Securities. The accounts
hereunder will be settled as promptly as practicable after the termination of
the Offering Provisions pursuant to Section 11(a), but you may reserve such
amount as you deem advisable for additional expenses. Your determination of the
amount to be paid to or by us will be conclusive. In the event of the default of
any Underwriter in carrying out its obligations under this Agreement, the
expenses chargeable to such Underwriter pursuant to this Agreement and not paid
by it, as well as any additional losses or expenses arising from such default,
may be charged against the other Underwriters not so defaulting in proportion to
the respective amounts of Securities which such other Underwriters are obligated
to purchase pursuant to the Underwriting Agreement. You may at any time make
partial distributions of credit balances or call for payment of debit balances.
Any of our funds in your hands may be held with your general funds without
accountability for interest. Notwithstanding any settlement, we will remain
liable for any taxes on transfers for our account, and for our proportionate
share (based upon our Underwriting Obligation) of all expenses and liabilities
which may be incurred by or for the accounts of the Underwriters or in
connection with the collection of the same.
13. DEFAULT BY UNDERWRITERS. Default by one or more Underwriters
hereunder or under the Underwriting Agreement will not release the other
Underwriters from their obligations or affect the
liability of any defaulting Underwriter to the other Underwriters for damages
resulting from such default. If one or more Underwriters default under the
Underwriting Agreement, you may (but are not obilgated to) arrange for the
purchase by others, including non-defaulting Underwriters, of Securities not
taken up by the defaulting Underwriter or Underwriters. In the event that such
arrangements are made, the respective underwriting obligations 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 to the other Underwriters for damages resulting from its default,
nor shall any such default relieve any other Underwriter of any of its
obligations hereunder or under the Underwriting Agreement except as herein or
therein provided.
In addition, in the event of default by one or more Underwriters 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, we agree, if
provided in the Underwriting Agreement, to assume our proportionate share, based
upon our underwriting obligation, of the obligations of each such defaulting
Underwriter (subject to any limitation contained in the Underwriting Agreement)
without relieving such defaulting Underwriter of its liability therefor.
In the event of default by one or more Underwriters in respect of
their obligations under this Agreement to take up and pay for any securities
purchased, or to deliver any securities sold or over-allotted, by you for the
respective accounts of the 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 our underwriting obligation, of the obligations
of each defaulting Underwriter without relieving any such defaulting Underwriter
of its liability therefor.
14. POSITION OF REPRESENTATIVES. You, either as Representatives or
individually, will be under no liability to us for any act or omission except
for obligations expressly assumed by you herein, and no obligations on your part
will be implied hereby or inferred herefrom. You do not waive any rights that
you may have under the Securities Act or the Exchange Act or the rules and
regulations promulgated thereunder. Your authority hereunder and under the
Underwriting Agreement may be exercised by you jointly or by Xxxxxxx Co. acting
alone. Nothing will constitute the Underwriters a partnership, association or
separate entity with you or with each other, or, except as herein expressly
provided, render any Underwriter liable for the obligation of any other
Underwriter.
If for 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 1, Subtitle A, of the Internal Revenue Code
of 1986, as amended. You, as Representatives of the several Underwriters, are
authorized, in your discretion, to execute on behalf of the Underwriters such
evidence of such election as may be required by the Internal Revenue Service.
Notwithstanding any settlement of accounts under this Agreement, we agree to pay
our underwriting proportion of the amount of any claim, demand or liability
which may be asserted against and discharged by the Underwriters, or any of
them, based on the claim that the Underwriters, or any of them, constitute an
association, unincorporated business or other entity, and also to pay our
underwriting proportion of expenses approved by us incurred by the Underwriters,
or any of them, in contesting any such claims, demands or liabilities.
15. INDEMNIFICATION. We will indemnify and hold harmless each other
Underwriter and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act to
the extent and upon the terms upon which each Underwriter agrees to indemnify
the Company, any selling securityholders and certain other persons in the
Underwriting Agreement.
16. CONTRIBUTION. Each Underwriter (including you) will pay upon your
request, as contribution, its proportionate share, based upon its Underwriting
Obligation, of any losses, claims, damages or liabilities, joint or several,
paid or incurred by an Underwriter to any person other than an Underwriter,
arising out of or based upon any untrue statement or alleged untrue statement of
any material fact contained in the Offering Document, any amendment or
supplement thereto or any related preliminary Offering Document or any other
selling or advertising material approved by you for use by the Underwriters in
connection with the sale of the Securities, or the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading (other than an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with written information furnished to the Company by an
Underwriter through you specifically for use therein); and will pay such
proportionate share of any legal or other expenses reasonably incurred by you or
with your 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 Section, appropriate
adjustment may be made by you to reflect any amounts received by any one or more
Underwriters in respect of such claim from the Company, any selling
securityholder or any other person (other than an Underwriter) pursuant to the
Underwriting Agreement or otherwise. There shall be credited against any amount
paid or payable by us pursuant to this Section any loss, damage, liability or
expense which is incurred by us as a result of any such claim asserted against
us, and if such loss, claim, damage, liability or expense is incurred by us
subsequent to any payment by us pursuant to this Section 16, appropriate
provision shall be made to effect such credit, by refund or otherwise. If any
such claim is asserted, you may take such action in connection therewith as you
deem necessary or desirable, including retention of counsel for the
Underwriters, and in your discretion separate counsel for any particular
Underwriter or group of Underwriters, and the fees and disbursements of any
counsel so retained by you shall be included in the amounts payable pursuant to
this Section. In determining amounts payable pursuant to this Section, any loss,
claim, damage, liability or expense incurred by any person controlling any
Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act which has been incurred by reason of such control
relationship shall be deemed to have been incurred by such Underwriter. Any
Underwriter may elect to retain at its own expense its own counsel. You may
settle or consent to the settlement of any such claim, on advice of counsel
retained by you, with the approval of a majority in interest of the
Underwriters. Whenever you receive notice of the assertion of any claim to which
the provisions of this Section 16 would be applicable, you will give prompt
notice thereof to each Underwriter, although your failure to do so will not
affect our obligations hereunder. You will also furnish each Underwriter with
periodic reports, at such times as you deem appropriate, as to the status of
such claim and the action taken by you in connection therewith. If any
Underwriter or Underwriters default in their obligation to make any payments
under this Section, each non-defaulting Underwriter shall be obligated to pay
its proportionate share of all defaulted payments, based upon such Underwriter's
Underwriting Obligation as related to the Underwriting Obligations of all
nondefaulting Underwriters.
The indemnification, contribution and reimbursement agreement of each
Underwriter contained in Section 15 and this Section 16 shall remain operative
and in full force and effect regardless of (i) any termination of this
Agreement, or (ii) any investigation made by or on behalf of any Underwriter or
controlling person. Any successor of any Underwriter, any Underwriter acting as
such by substitution in accordance with the Underwriting Agreement or any
controlling person shall be entitled to the benefits and obligations contained
in this Section.
17. REPORTS AND BLUE SKY MATTERS. You shall inform us, upon request, of
the states and other jurisdictions of the United States in which it is believed
that the Securities are qualified for sale under, or are exempt from the
requirements of, their respective securities laws, but you assume no
responsibility with respect to our right to sell Securities in any jurisdiction.
We authorize you to file with the
Commission and any other governmental agency any reports required in connection
with any transactions effected by you for our account pursuant to this
Agreement, and we will furnish any information needed for such reports. We agree
to transmit to you for filing with the Commission any report required to be made
by us pursuant to the Exchange Act as a result of any transactions effected in
connection with the offering of the Securities. You will not have any
responsibility to the right of any Underwriter or other person to sell the
Securities in any jurisdiction, notwithstanding any information you may furnish
in that connection.
18. NASD MEMBERSHIP. You represent that you are a member in good
standing of the NASD, and we represent that we are (i) a member in good standing
of the NASD, (ii) a Bank that is not a member of the NASD, or (iii) a foreign
non-member. If we are an NASD a member we agree that in making sales of the
Securities we will comply with all applicable rules of the NASD, including,
without limitation, the NASD's Interpretation with Respect to Free-Riding and
Withholding (the "Interpretation") and Rule 2740 of the NASD's Conduct Rules. If
we are not a NASD member, we agree to comply as though we were a member with the
requirements of the Interpretation and Rules 2730, 2740 and 2750 of such Conduct
Rules. If we are such a foreign non-member, we agree not to offer or sell any
Securities in the United States of America, its territories or possessions or to
persons who are nationals thereof or residents therein, except through you and
as approved by you and in making sales of Securities we agree to comply with
Rule 2420 of such Conduct Rules as it applies to a non-member broker or dealer
in a foreign country. If we are such a foreign bank, we represent that, unless
otherwise notified in writing to you prior to the date hereof, we are not an
entity covered in (i), (ii) or (iii) of the last paragraph of Section 8 hereof.
If we are a Bank, we agree that we will not accept any portion of the management
fee paid by the Underwriters with respect to the offering of any Securities or,
in connection with the public offering of any Securities that do not constitute
"exempted securities" within the meaning of Section 3(a)(12) of the Exchange
Act, purchase any Securities at a discount from the offering price from any
Underwriter or Selected Dealer or otherwise accept any selling concession,
discount or other allowance from any Underwriter or Selected Dealer, which in
any such case is not permitted under such Conduct Rules, and we agree to comply
with Rule 2420 of such Conduct Rules of the Rules as though we were a member.
19. TITLE TO SHARES. The Shares purchased by the respective
Underwriters shall remain the property of such Underwriters until sold and no
title to any such Shares shall in any event pass to you by virtue of any of the
provisions of this Agreement.
20. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF MARYLAND WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW.
21. NOTICE. All notices to us will be considered duly given if mailed
or telegraphed to our address as set forth on the signature page hereof or sent
by facsimile to the number set forth on the signature page hereof (as such
address or facsimile number may be changed by written notice to you). All
notices to you will be considered duly given if mailed or telegraphed or sent by
facsimile as follows: The Xxxxxxx Co., 000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxxxx, Xxxxxxxx 00000, Attn: Syndicate Department (facsimile: (410)
625-9656).
Please confirm by signing and returning to us the enclosed copy of this
Agreement that your Acceptance of an Invitation with respect to an offering
shall constitute (i) acceptance of and agreement to the terms and conditions of
this Agreement (as supplemented and amended as provided herein), together with
and subject to any supplementary terms and conditions contained in the
Invitation and any other written communication from us in connection with such
offering, all of which shall constitute a binding agreement between us and you
as Representative of the Underwriters and among us and the Underwriters, (ii)
confirmation that our representations and warranties set forth herein are true
and correct at that time,
(iii) confirmation that our agreements set forth
herein have been and will be performed by us to the extent and at the times
required thereby, and (iv) acknowledgment of familiarity with the Offering
Documents with respect to such offering.
Very truly yours,
---------------------------------
Name of Firm
By:------------------------------
---------------------------------
Print Name
---------------------------------
Title
Address:
-------------------------
-------------------------
Telephone:
-------------------------
Facsimile:
-------------------------
Confirmed as of the date
first set forth above:
THE XXXXXXX CO.
By:--------------------------------------------
Xxxxxx X. Xxxxxxx, Xx., President and CEO
EXHIBIT A
MASTER UNDERWRITERS' QUESTIONNAIRE
In connection with each offering of Securities to which the foregoing
Master Agreement Among Underwriters dated as of November 15, 1999, between The
Xxxxxxx Co. and the Underwriter executing the same relates, except as otherwise
disclosed to the Representative(s) in a written Acceptance, such Underwriter
advises the Representative(s) as follows and authorizes the Representative(s) to
use the information furnished in response to this Master Underwriters'
Questionnaire in the Registration Statement relating to the Securities:
(a) Neither such Underwriter nor any of its directors, officers or
partners, individually or as a part of a "group" (as that term is used in
Section 13(d)(3) of the Exchange Act) (i) has a "material" relationship (as
defined in Rule 405 under the Securities Act) with the Company or any other
seller of Securities in the Offering, (ii) is a director, officer or holder (of
record or beneficially, determined in accordance with Rule 13d-3 under the
Exchange Act) of 5% or more of any class of voting securities of the Company or
any other seller of Securities in the Offering, or (iii) other than as may be
stated in the Registration Statement, has any knowledge that more than 5% of any
class of voting securities of the Company is held or is to be held subject to
any voting trust or similar agreement;
(b) With reference to the Interpretation of the Board of Governors
of the NASD with respect to the Review of Corporate Financing, neither such
Underwriter nor any of its "related persons" (as defined by the NASD) (i) has
purchased or otherwise acquired from the Company any warrants, options or other
securities of the Company within 18 months prior to the date that the
Registration Statement was initially filed or subsequent to that date, and there
are no existing arrangements for any such purchase, or (ii) has had any dealings
with the Company (except those with respect to the Underwriting Agreement) or
any "affiliate" of the Company (as defined in Rule 405 under the Securities Act)
as to which documents or other information are required to be furnished to the
NASD pursuant to such Interpretation;
(c) Neither such Underwriter nor any of its "related persons" (as
defined by the NASD) is an "affiliate" of the Company as that term is defined in
Rule 2720 of the NASD's Conduct Rules or has a "conflict of interest" with the
Company under Rule 2710 or Rule 2720 of the NASD's Conduct Rules;
(d) Other than as stated in the Registration Statement, a copy of
which has been examined by us, the Master Agreement Among Underwriters, or the
Underwriting Agreement, such Underwriter does not know of any arrangements made
or to be made for limiting or restricting the sale of the Securities, for
stabilizing the market for the Securities, for withholding commissions or
otherwise to hold each Underwriter or dealer responsible for the distribution of
their participation in the Securities, or for any discounts or commissions to be
allowed or paid to dealers;
(e) If the Securities are to be issued pursuant to a trust
indenture, such Underwriter is not directly or indirectly in control of,
directly or indirectly controlled by, or under direct or indirect common control
with the Trustee, any other trustee under a trust indenture relating to
securities of the Company and qualified under the Trust Indenture Act of 1939,
as amended (an "Other Trustee"), or any of their respective affiliates, and none
of said companies or affiliates, or any of their respective directors or
executive officers, is a director, officer, partner, employee, appointee or
representative of such Underwriter;
(f) If the Securities are to be issued pursuant to a trust
indenture, such Underwriter and its directors, executive officers and partners,
taken as a group, did not, on the date of the Trustee's Statement of Eligibility
and Qualification on Form T-1, own beneficially more than 1% of the outstanding
voting
securities of the Trustee, the Trustee's parent, any Other Trustee or the
parent of any Other Trustee;
(g) If the Registration Statement is on Form S-1, such Underwriter
has not prepared or had prepared for it within the past twelve months any
engineering, management or similar report or memorandum relating to the broad
aspects of the business, operations or products of the Company, except for
reports solely comprising recommendations to buy, sell or hold the Company's
securities, unless such recommendations have changed within the past six months;
(h) If the Registration Statement is on either Form S-2 or Form S-3,
such Underwriter has not prepared any report or memorandum for external use by
it or by the Company in connection with the Offering;
(i) If the Company does not have any securities registered under
Section 12 of the Exchange Act and is not subject to Section 15(d) of the
Exchange Act, such Underwriter does not intend to confirm sales of the
Securities to any accounts over which it exercises discretionary authority;
(j) Such Underwriter's proposed commitment to purchase Securities
will not result in a violation by it of the financial responsibility
requirements of Rule 15c3-1 under the Exchange Act and is not prohibited or
restricted by any action of the Commission, the NASD or of any national
securities exchange applicable to such Underwriter;
(k) Such Underwriter is familiar with the rules, regulations and
releases of the Commission dealing with the dissemination of information prior
to and during registration and has not distributed nor will it distribute any
written information outside of its organization relating to the Company or its
securities other than in accordance with such rules, regulations and releases;
and
(l) If the Company is a "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," each as defined in the Public Utility Holding
Company Act of 1935, as amended.
All capitalized terms in this Questionnaire not otherwise defined herein
are used as defined in the foregoing Master Agreement Among Underwriters.
November 15, 1999.
