Interpretive Letter to Name Not Public
November 15, 1996
I am responding to your letters of October 10, 1996 and November 13, 1996 concerning the application of certain provisions of IM-2110-1 and Rules 2740 and 2750 of the NASD Code of Conduct to the participation of U.S. underwriters in the multinational offering of Shares of [Issuer]. Capitalized terms have the same meanings assigned to them in your letters.
Based on all the facts and representations contained in your letters and our telephone conversations, this office is of the view that a reallocation of Shares from [U.S. Underwriters] to [Non-U.S. Underwriters] would not be deemed in violation of the terms of IM-2110-1(b)(8), Rule 2740(c), or Rule 2750. This position is based particularly on the following representations:
The size of the aggregate allotment for purchase for the [U.S. Underwriters] to be set forth in an allocation agreement reflects the determination of [Issuer], and the [Shareholder] as its sole shareholder, that a substantial percentage of Shares be offered and sold to United States investors, and this factor may increase the likelihood that shares would need to be reallocated from the [U.S. Underwriters];
- The [U.S. Underwriters] will forego 60% of the aggregate commission that they otherwise would have received in respect of any Shares that are reallocated to another regional financial syndicate, and therefore such underwriters have a strong financial incentive not to reallocate Shares;
- Shares will not be reallocated from the [U.S. Underwriters] to another regional syndicate in the event that at the time of the reallocation there exist unsatisfied orders from U.S. investors to purchase Shares at the public offering price; and
- In the event of any reallocation of Shares from the [U.S. Underwriters], such underwriters will not direct any Shares to any particular person or entity.
In addition, it is our understanding that following the completion of the distribution of the Shares, you will inform this office whether any reallocation of Shares occurred, the amount of such reallocation, and such other information as we may request concerning the facts and circumstances surrounding such reallocation.