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EXHIBIT 10.6
2,200,000 SHARES OF COMMON STOCK
OF
CONSERVOR CORPORATION OF AMERICA
AGREEMENT AMONG UNDERWRITERS
May , 1997
▇▇▇▇▇▇▇-▇▇▇▇▇▇ ASSOCIATES, L.P.
As Representative of the
several Underwriters named
in Schedule I to Exhibit A
annexed hereto
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
We understand that Conservor Corporation of America, a Delaware
corporation (the "Company"), desires to enter into an agreement, substantially
in the form of Exhibit A attached hereto (the "Underwriting Agreement") with you
and the other prospective Underwriters named in Schedule I to the Underwriting
Agreement for the sale by the Company, of an aggregate of 2,200,000 shares of
Common Stock, par value $.001 per share (the "Shares") of the Company (the "Firm
Securities"). In addition, the Company, pursuant to the Underwriting Agreement,
will grant to the Underwriters an option to purchase up to an additional 330,000
Shares (the "Option Securities") for the purpose of covering over-allotments, if
any, in connection with the sale of the Firm Securities. The Firm Securities and
any Option Securities purchased pursuant to the Underwriting Agreement are
herein called the "Securities."
We understand that changes may be made in those who are to be Underwriters
and in the respective number of Securities to be purchased by them, but that the
number of Securities to be purchased by us as set forth in said Schedule I will
not be changed without our consent except as provided herein or in the
Underwriting Agreement. The parties on whose behalf you execute the Underwriting
Agreement are herein called the "Underwriters."
We desire to confirm the agreement among you, the undersigned and the
other Underwriters with respect to the purchase of the Securities by the
Underwriters, severally and not jointly, from the Company. The aggregate number
of Securities which any Underwriter will
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be obligated to purchase pursuant to the terms of the Underwriting Agreement is
herein called the "Underwriting Obligation" of that Underwriter.
1. Authority and Compensation of Representative. We hereby authorize you,
as our representative (the "Representative") and on our behalf, (a) to enter
into an agreement with the Company, in substantially the form attached hereto as
Exhibit A, but with such changes therein as in your judgment will not be
materially adverse to the Underwriters, providing for the purchase by us,
severally and not jointly, from the Company, at the purchase price per Security
determined as set forth in said Exhibit A, of the number of Firm Securities set
forth opposite our name in Schedule I to said Exhibit A, and our allotted share
of the Option Securities which you determine to be purchased, (b) to exercise
all the authority and discretion vested in the Underwriters and in you by the
provisions of the Underwriting Agreement, (c) to take all such action as you in
your discretion may deem necessary or advisable in order to carry out the
provisions of the Underwriting Agreement and of this Agreement, and the sale and
distribution of the Securities, and (d) to determine all matters relating to the
public advertisement of the Securities.
As our share of the compensation for your services hereunder, we will pay
to you, and we authorize you to charge to our account on the Closing Date and on
the Option Closing Date referred to in the Underwriting Agreement, $_____ per
Share and $____ per Warrant in respect of the aggregate number of Firm
Securities and Option Securities, respectively, which we shall agree to purchase
pursuant to the Underwriting Agreement.
2. Public Offering of Securities. The sale of the Securities to the public
is to be made, as herein provided, as soon after the registration statement
relating to the Securities becomes effective as in your judgment is advisable.
The purchase price to be paid by the Underwriters for the Securities and the
initial public offering price are to be determined by agreement between you and
the Company. The Securities shall be first offered to the public at the initial
public offering prices as so determined (the "Initial Public Offering Price").
You will advise us by telegraph or telephone when the Securities shall be
released for offering, when the registration statement relating to the
Securities shall become effective and the price at which the Securities is
initially to be offered. We agree not to sell any of the Securities until you
have released it for that purpose. We authorize you, after the initial public
offering, to change the public offering price, the concession and the
reallowance if, in your sole discretion, such action becomes desirable by reason
of changes in general market conditions or otherwise. As used herein, the terms
"Registration Statement," "Preliminary Prospectus" and "Prospectus" shall have
the meanings ascribed thereto in the Underwriting Agreement. The public offering
price sat the time in effect is herein called the "Offering Price." After notice
from you that the Securities is released for public sale, we will offer to the
public in conformity with the provisions hereof and with the terms of offering
set forth in the Prospectus such shares of your Securities as you advise us are
not reserved.
3. Offering to Dealers and Retail Sales. We authorize you to reserve for
offering and sale, and on our behalf to sell, to retail purchasers (such sales
being herein called "Retail Sales")
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and to dealers selected by you (such dealers, among whom any Underwriter may be
included, being herein called "Selected Dealers") all or any part of our
Securities as you, in your sole discretion, shall determine. Such sales, if any,
shall be made (a) in the case of Retail Sales, at the Offering Price, and (b) in
the case of sales to Selected Dealers, at the Offering Price less such
concession or concessions as you, in your sole discretion, shall determine.
Except for such sales as are designated by a purchaser to be for the account of
a particular Underwriter or Selected Dealer, any sales to Selected Dealers made
for our account shall be as nearly as practicable in the ratio that the
Securities reserved for our account for offering to Selected Dealers bears to
the aggregate of all Securities of all Underwriters so reserved.
You agree to notify us promptly on the date of the public offering as to
the number of shares, if any, of the Securities which we may retain for direct
sale by us. Prior to the termination of the provisions referred to in Section 13
hereof, you may reserve for offering and sale as hereinbefore provided any
Securities theretofore retained by us remaining unsold and we may, with your
consent, retain any Securities theretofore reserved by you remaining unsold.
We agree that, from time to time prior to the termination of the
provisions referred to in Section 13 hereof, we shall furnish to you such
information as you may request in order to determine the number of Securities
purchased by us under the Underwriting Agreement which then remain unsold, and
we shall upon your request sell to you for the account of any Underwriter as
many of such unsold Securities as you may designate at the Offering Price, less
all or any part of the concession to Selected Dealers as you, in your sole
discretion, shall determine. The provisions of Section 4 hereof shall not be
applicable in respect of any such sale.
We authorize you to determine the form and manner of any communications or
agreements with Selected Dealers. In the event that there shall be any
agreements with Selected Dealers, you are authorized to act as manager
thereunder and we agree, in such event, to be governed by the terms and
conditions of such agreements. The form of Selected Dealer Agreement attached
hereto as Exhibit B is satisfactory to us.
It is understood that any Selected Dealer to whom an offer may be made as
hereinbefore provided shall be actually engaged in the investment banking or
securities business and shall be either (i) a member in good standing of the
National Association of Securities Dealers, Inc. (the "NASD") or (ii) a dealer
with its principal place of business located outside the United States, its
territories and its possessions and not registered as a broker or dealer under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), who agrees not
to make any sales within the United States, its territories or its possessions
or to persons who are nationals thereof or residents therein. Each Selected
Dealer shall agree to comply with the provisions of Section 24 of Article III of
the Rules of Fair Practice of the NASD, and each foreign Selected 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 Sections 8 and 36 of
Article III of such Rules of Fair Practice, and to comply with Section 25 of
Article III thereof as that Section applies to a non-member foreign dealer. The
several Underwriters may allow, and the Selected Dealers, if any, may re-allow,
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such concession or concessions as you may determine from time to time on sales
of Securities to any qualified dealer, all subject to the Rules of Fair Practice
of the NASD.
You, and any of the several Underwriters with your prior consent, may make
purchases or sales of the Securities from or to any of the other Underwriters,
at the Offering Price less all or any part of the gross spread, and from or to
any of the Selected Dealers at the Offering Price less all or any part of the
concession to Selected Dealers.
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.
4. Repurchases in the Open Market. Any Securities sold by us (otherwise
than through you) which shall be contracted for or purchased in the open market
by you on behalf of any Underwriter or Underwriters shall be repurchased by us
on demand at a price equal to the cost of such purchase plus commissions and
taxes on redelivery. Any Securities delivered on such repurchase need not be the
identical shares originally sold by us. In lieu of delivery of such shares to
us, you may sell such shares in any manner for our account and charge us with
the amount of any loss or expense or credit us with the amount of any profit,
less any expense, resulting from such sale, or charge our account with an amount
not in excess of the concession to Selected Dealers.
5. Delivery and Payment. Upon your request, we shall deliver to you
payment for the Securities to be purchased by us under the Underwriting
Agreement in an amount equal to the Initial Public Offering Price for such
Securities less the concession to Selected Dealers. Such payment shall be made
in such form and at such time and place as may be specified in such request, and
we authorize you to make payment for such Securities against delivery thereof
for our account hereunder. If we are a member of or clear through a member of
The Depository Trust Company ("DTC"), you may, in your discretion, deliver our
Securities through the facilities of DTC.
You shall remit to us, as promptly as practicable, the amounts received by
you from Selected Dealers and retail purchasers as payment in respect of
Securities sold by you for our account pursuant to Section 3 hereof for which
payment has been received. Securities purchased by us under the Underwriting
Agreement and not reserved or sold by you for our account pursuant to Section 3
hereof shall be delivered to us as promptly as practicable after receipt by you.
Any Securities purchased by us and so reserved which remains unsold at any time
prior to the settlement of accounts hereunder may, in your discretion, and
shall, upon your request, be delivered to us, but, until termination of the
Selected Dealer Agreements pursuant to their terms, such delivery shall be for
carrying purposes only. In case any Securities reserved for sale in Retail Sales
or to Selected Dealers shall not be purchased and paid for in due course as
contemplated hereby, we agree (a) to accept delivery when tendered by you of any
Securities so reserved for our account and not so purchased and paid for, and
(b) in case we shall have received payment from you in respect of any such
Securities, to reimburse you on demand for the full amount which you shall have
paid us in respect of such Securities.
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In the event of our failure to tender payment for Securities as provided
in the Underwriting Agreement, you shall have the right under the provisions
thereof to arrange for other persons, who may include you and any other
Underwriter, to purchase such Securities which we had agreed to purchase but
without relieving us from liability for our default.
6. Authority to Borrow. We authorize you to advance your funds for our
account (charging current interest rates) and to arrange loans for our account
or the account of the Underwriters for the purpose of carrying out this
Agreement, and in connection therewith to execute and deliver any notes or other
instruments and to hold or pledge as security therefor all or any part of our
Securities purchased hereunder for our account. Any lender is hereby authorized
to accept your instructions in all matters relating to such loans. Any part of
our Securities so held by you may be delivered to us for carrying purposes and,
if so delivered, will be redelivered to you upon demand.
7. Allocation of Expenses and Liability. We authorize you to charge our
account with and we agree to pay (a) all transfer taxes on sales made by you for
our account, except as herein otherwise provided, and (b) our proportionate
share (based on our Underwriting Obligation) of all expenses incurred by you in
connection with the purchase, carrying, sale and distribution of the Securities
and all other expenses arising under the terms of the Underwriting Agreement or
this Agreement. Your determination of all such expenses and your allocation
thereof shall be final and conclusive. You may at any time make partial
distributions of credit balances or call for payment of debit balances. Funds
for our account at any time in your hands may be held in your general funds
without accountability for interest. As soon as practicable after the termina-
tion of this Agreement, the net credit or debit balance in our account, after
proper charge and credit for all interim payments and receipts, shall be paid to
or paid by us, provided that you may establish such reserves as you, in your
sole discretion, shall deem advisable to cover possible additional expenses
chargeable to the several Underwriters. Notwithstanding any settlement, we will
remain liable for any taxes on transfers for our account and for our
proportionate share (based on our Underwriting Obligation) of all expenses and
liabilities that may be incurred for the accounts of the Underwriters.
8. Liability for Future Claims. Neither any statement by you of any credit
or debit balance in our account nor any reservation from distribution to cover
possible additional expenses relating to the Securities shall constitute any
representation by you as to the existence or non-existence of possible
unforeseen expenses or liabilities of or charges against the several
Underwriters. Notwithstanding the distribution of any net credit balance to us
or the termination of this Agreement or both, we shall be and remain liable for,
and will pay on demand, (a) our proportionate share (based on our Underwriting
Obligation) of all expenses and liabilities which may be incurred by or for the
accounts of the Underwriters, or any of them, based on the claim that the
Underwriters constitute an association, unincorporated business, partnership or
any separate entity, and (b) any transfer taxes paid after such settlement on
account of any sale or transfer for our account.
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9. Stabilization and Over-Allotment. We authorize you on our behalf and
for our account, during the term of this Agreement, in your discretion, and
without obligating you to do so, to buy and sell Securities in the open market
or otherwise for either long or short account, on such terms and at such prices
as you may determine and, in arranging for sales, to over-allot and cover such
over-allotments, provided that at no time shall the net commitment of any
Underwriter under authority of this Section, either for long or short account,
exceed an amount equivalent to 15% of the maximum number of Securities to be
purchased by such Underwriter under the Underwriting Agreement. During or after
the term of this Agreement you may cover any short position incurred under the
preceding sentence by purchase of Option Securities from the Company pursuant to
the option contained in Section 2 of the Underwriting Agreement or otherwise.
All purchases, sales and over-allotments under authority of this Section shall
be for the accounts of each of the several Underwriters as nearly as practicable
in proportion to their respective Underwriting Obligations. 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 over-allotted for our account. We also
authorize you to deliver our Securities pursuant to this Section 9, against
sales made by you for our account pursuant to any provisions of this Agreement.
Notwithstanding the foregoing limitations, in the event of default by one or
more Underwriters in respect of their obligations under this paragraph, each
nondefaulting Underwriter shall assume its proportionate share of the
obligations of such defaulting Underwriter without relieving such defaulting
Underwriter of its liability hereunder.
In the event that you effect any stabilizing purchases pursuant to this
Section 9, you will notify each Underwriter promptly of the date and time when
the first stabilizing purchase is effected and the date and time when
stabilizing is terminated. Each Underwriter agrees that if it effects any
stabilizing purchases, it will, not later than three business days following the
day on which any such stabilizing purchase is effected, notify you of the price,
date and time at which such stabilizing purchase was effected and will promptly
notify you of the date and time when stabilizing was terminated by such
Underwriter. Each Underwriter authorizes you to file with the Securities and
Exchange Commission (the "Commission") all notices and reports which may be
required as a result of any transactions made pursuant to this Section 9.
We agree to advise you, from time to time upon your request during the
term of this Agreement, of the number of Securities retained by us or purchased
by us from other Underwriters and Selected Dealers remaining unsold, and will,
upon your request, release to you for the accounts of one or more of the several
Underwriters, such number of Securities as you may designate at such price, not
less than the net price to Selected Dealers nor more than the Initial Public
Offering Price, as you may determine.
If, pursuant to the provisions of the first paragraph of this Section 9
and prior to the termination of this Agreement (or such earlier date as you may
have determined on notice to the Underwriters) you purchase or contract to
purchase any Securities which were retained by or released to us for direct
sale, which shares were theretofore not effectively placed for investment by us,
we authorize you in your discretion either to charge our account with an amount
equal to the concession to Selected Dealers with respect thereto or to require
us to repurchase such
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shares at a price equal to the total cost of such purchase, including
commissions, if any, and transfer tax on the redelivery. Securities delivered on
such repurchase need not be the identical shares originally purchased by and
delivered to us.
Upon the termination of this Agreement, you are authorized in your
discretion, in lieu of delivering to the several Underwriters any Securities
then held for their respective accounts pursuant to this Section 9, to sell such
shares for the accounts of each of the Underwriters at such price or prices as
you may determine and debit or credit our account for the loss or profit
resulting from such sale.
10. Open Market Transactions. We agree that we will not make bids or
offers, or make or induce purchases or sales for our own account or the accounts
of customers, in the open market or otherwise, either before or after the
purchase of the Securities and for either long or short accounts, of any
Securities or any security of the same class or series, or any right to purchase
any such security except (i) as provided in this Agreement, the Underwriting
Agreement and the Selected Dealer Agreements or otherwise approved by you, (ii)
in brokerage transactions not involving solicitation of the customer's order and
(iii) in connection with option and option-related transactions that are
consistent with the "no-action" position set forth in Release No. 17609, as
amended in Release No. 19565, of the Commission under the 1934 Act. We further
agree that we will not lend, either before or after the purchase of the
Securities, to any customer, Underwriter, Selected Dealer or to any other
securities broker or dealer any Securities. Prior to the completion (as defined
in Regulation M under the ▇▇▇▇ ▇▇▇) of our participation in the distribution, we
will otherwise comply with Regulation M.
11. Blue Sky. Prior to the initial offering by the Underwriters, you will
inform us as to the states and other jurisdictions under the respective
securities or blue sky laws of which it is believed that the Securities has been
qualified for sale or is exempt from such qualification, but you do not assume
any responsibility or obligation as to the accuracy of such information or as to
the right of any Underwriter or dealer to offer or sell the Securities in any
state or other jurisdiction. You agree to file or cause to be filed, on behalf
of the Underwriters, a Further State Notice in respect of the Securities
pursuant to Article 23-A of the General Business Law of the State of New York,
if necessary.
12. Default by Underwriters. Default by one or more Underwriters in
respect of their obligations under the Underwriting Agreement shall not release
us from any of our obligations or in any way affect the liability of any
defaulting Underwriter to the other Underwriters for damages resulting from such
default. In the event of such default by one or more Underwriters, you are
authorized to increase, pro rata with the other non-defaulting Underwriters, the
amount of Securities which we shall be obligated to purchase from the Company;
provided, however, that the aggregate amount of all such increases for all
non-defaulting Underwriters shall not exceed 10% of the Securities and, if the
aggregate amount of the Securities not taken up by such defaulting Underwriters
exceeds such 10%, you are further authorized, but shall not be obligated, to
arrange for the purchase by other persons, who may include you and other
non-defaulting Underwriters, of all or a portion of the Securities not taken up
by such Underwriters.
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In the event any such increases or arrangements are made, the respective amounts
of the Securities to be purchased by the non-defaulting Underwriters and by any
such other person or persons shall be taken as the basis for the Underwriters'
obligations under this Agreement, but this shall not in any way affect the
liability of any defaulting Underwriter to the other Underwriters for damages
resulting from such default.
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
by you for their respective accounts pursuant to Section 9 hereof, or to deliver
any such Securities sold or over-allotted by you for their respective accounts
pursuant to any provision of this Agreement, and to the extent that arrangements
shall not have been made by you for other persons to assume the obligations of
such defaulting Underwriter or Underwriters, each non-defaulting Underwriter
shall assume its proportionate share of the aforesaid obligations of each such
defaulting Underwriter without relieving any such defaulting Underwriter of its
liability therefor.
13. Termination. Section 2, the second paragraph and the first sentence of
the third paragraph of Section 3, Section 4, the first sentence of Section 9 and
Section 10 hereof will terminate at the close of business on the 30th calendar
day after the effective date of the Registration Statement, unless extended or
sooner terminated as hereinafter provided. You may extend such provisions, or
any of them, for a period not to exceed 30 additional calendar days by notice to
us to such effect. You may terminate any of such provisions at any time by
notice to us, and you may terminate all such provisions at any time by notice to
us to the effect that the offering provisions of this Agreement are terminated.
14. General Position of the Representative. In taking action under this
Agreement, you shall act only as agent of the several Underwriters. Your
authority shall include the taking of such action as you may deem advisable in
respect of all matters pertaining to any and all offers and sales of the
Securities, including the right to make any modifications which you consider
necessary or desirable in the arrangements with Selected Dealers or others. You
shall be under no liability for or in respect of the value of the Securities or
the validity or the form thereof, the Registration Statement, the Prospectus or
agreements or other instruments executed by the Company or others; or for or in
respect of the delivery of the Securities; or for the performance by the Company
or others of any agreement on its or their part; nor shall you as Representative
or otherwise be liable under any of the provisions hereof or for any matters
connected herewith, except for want of good faith, and except for any liability
arising under the Securities Act of 1933, as amended (the "1933 Act"); and only
obligations expressly assumed by you as Representative herein shall be implied
from this Agreement. In representing the Underwriters hereunder, you shall act
as the Representative of each of them respectively. Nothing herein contained
shall constitute the several Underwriters partners with you or with each other,
or render any Underwriter liable for the commitments of any other Underwriter,
except as otherwise provided in Section 12 hereof and in Section 11 of the
Underwriting Agreement. If the Underwriters shall be deemed to constitute a
partnership for Federal income tax purposes, it is the intent of each
Underwriter to be excluded from the application of Subchapter K, Chapter 1,
Subtitle A, of the Internal Revenue Code of 1986, as amended. Each Underwriter
elects to
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be so excluded and agrees not to take any position inconsistent with such
election. Each Underwriter authorizes you, in your discretion, to execute and
file on behalf of the Underwriters such evidence of election as may be required
by the Internal Revenue Service. The commitments and liabilities of each of the
several Underwriters are several in accordance with their respective
Underwriting Obligations and are not joint.
15. Acknowledgment of Receipt of Registration Statement etc. We hereby
confirm that we have examined the Registration Statement relating to the
Securities as heretofore filed by the Company with the Commission and each
amendment thereto, if any, filed through the date hereof, including any
documents filed under the 1934 Act through the date hereof and incorporated by
reference into the Prospectus, that we are willing to be named as an underwriter
therein and to accept the responsibilities of an underwriter thereunder, and
that we are willing to proceed as therein contemplated. We confirm that we have
authorized you to advise the Company on our behalf (a) as to the statements to
be included in any Preliminary Prospectus and in the Prospectus under the
heading "Underwriting" insofar as they relate to us, and (b) that there is no
other information about us required to be stated in the Registration Statement
or Prospectus. We understand that the aforementioned documents are subject to
further change and that we will be supplied with copies of any further
amendments or supplements to the Registration Statement, of any document filed
under the 1934 Act after the effective date of the Registration Statement and
before termination of the offering of the Securities by the Underwriters if such
document is deemed to be incorporated by reference into the Prospectus and of
any amended or supplemented Prospectus promptly, if and when received by you,
but the making of such changes, amendments and supplements shall not release us
or affect our obligations hereunder or under the Underwriting Agreement.
16. (a) Indemnity. We agree to indemnify and hold harmless each other
Underwriter and any person who controls any such Underwriter within the meaning
of Section 15 of the 1933 Act, to the extent that, and upon the terms on which,
we agree to indemnify and hold harmless the Company and other specified persons
as set forth in the Underwriting Agreement. Our indemnity agreement contained in
this Section 16 shall remain in full force and effect regardless of any
investigation made by or on behalf of such other Underwriter or controlling
person and shall survive the delivery of and payment for the Securities and the
termination of this Agreement and the similar agreements entered into with the
other Underwriters.
(b) Claims Against Underwriters. Each Underwriter (including you) will
pay, upon your request, as contribution, its proportionate share, based upon its
Underwriting Obligation, of any loss, claim, damage or liability, joint or
several, paid or incurred by any Underwriter (including you) to any person other
than an Underwriter, arising out of or based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement, the Prospectus, any amendment or supplement thereto or any
Preliminary Prospectus 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
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conformity with written information furnished to the Company through you by or
on behalf of an Underwriter expressly for use therein) or relating to any
transaction contemplated by this Agreement; and will pay such proportionate
share of any legal or other expense reasonably incurred by you or with your
consent in connection with investigating or defending against any such loss,
claim, damage or liability, or any action in respect thereof. In determining the
amount of our obligation under this paragraph, 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 pursuant to Section 8 of the Underwriting
Agreement or otherwise. There shall be credited against any amount paid or
payable by us pursuant to this paragraph any loss, claim, 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 paragraph, 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 paragraph. In determining amounts payable pursuant to this paragraph, any
loss, claim, damage, liability or expense incurred by any person who controls
any Underwriter within the meaning of Section 15 of the 1933 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. Whenever you receive notice of
the assertion of any claim to which the provisions of this paragraph would be
applicable, you will give prompt notice thereof to each Underwriter. If any
Underwriter or Underwriters defaults in its or their obligation to make any
payments under this paragraph, each non-defaulting Underwriter shall be
obligated to pay its proportionate share of all defaulted payments, based upon
the proportion such non-defaulting Underwriter's Underwriting Obligation bears
to the Underwriting Obligations of all non-defaulting Underwriters. Nothing
herein shall relieve a defaulting Underwriter from liability for its default.
17. Capital Requirements. We confirm that the incurrence by us of our
obligations under this Agreement and under the Underwriting Agreement will not
place us in violation of the net capital requirements of Rule 15c3-1 under the
1934 Act or of any applicable rules relating to capital requirements of any
securities exchange to which we are subject.
18. Undertaking to Mail Prospectuses. As contemplated by Rule 15c2-8 under
the 1934 Act, you agree to mail a copy of the Prospectus mentioned in the
Underwriting Agreement to any person making a written request therefor during
the period referred to in said Rule, the mailing to be made to the address given
in the request. We confirm that we have delivered all Preliminary Prospectuses
and revised Preliminary Prospectuses, if any, required to be delivered under the
provisions of Rule 15c2-8 and agree to deliver all Prospectuses required lo be
delivered thereunder. We acknowledge that the copies of the Preliminary
Prospectus furnished to us have been distributed to dealers who have been
notified of the foregoing requirements pertaining to the delivery of Preliminary
Prospectuses and Prospectuses. You have heretofore
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delivered to us such number of copies of Preliminary Prospectuses as have been
reasonably requested by us, receipt of which is hereby acknowledged, and will
deliver such number of copies of Prospectuses as will be reasonably requested by
us.
19. Miscellaneous. Any notice hereunder from you to us or from us to you
shall be deemed to have been duly given if sent by registered mail, telegram or
teletype, to us at our address as set forth in our Underwriters' Questionnaire
previously delivered to you, or to you at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: Syndicate Department.
We understand that you are a member in good standing of the NASD. We
hereby confirm that we are actually engaged in the investment banking or
securities business and are either (i) a member in good standing of the NASD or
(ii) a dealer with its principal place of business located outside the United
States, its territories and its possessions and not registered as a broker or
dealer under the 1934 Act who agrees not to make any sales within the United
States, its territories or its possessions or to persons who are nationals
thereof or residents therein (except that we may participate in sales to
Selected Dealers and others under Section 3 of this Agreement). We hereby agree
to comply with the provisions of Section 24 of Article III of the Rules of Fair
Practice of the NASD, and, if we are a foreign dealer and not a member of the
NASD, we also hereby agree to comply with the NASD's interpretation with respect
to free-riding and withholding and to comply, as though we were a member of the
NASD, with the provisions of Sections 8 and 36 of Article III of such Rules of
Fair Practice, and to comply with Section 25 of Article III thereof as that
Section applies to a non-member foreign dealer. In connection with sales and
offers to sell Securities made by us outside the United States, its territories
and possessions (i) we will either furnish to each person to whom any such sale
or offer is made a copy of the then current Preliminary Prospectus or the
Prospectus, as the case may be, or inform such person that such Preliminary
Prospectus or Prospectus will be available upon request, and (ii) we will
furnish to each person to whom any such sale or offer is made such prospectus,
advertisement or other offering document containing information relating to the
Securities or the Company as may be required under the law of the jurisdiction
in which such sale or offer is made. Any prospectus, advertisement or other
offering document furnished by us to any person in accordance with the preceding
sentence and any such additional offering material as we may furnish to any
person (x) shall comply in all respects with the law of the jurisdiction in
which it is so furnished, (y) shall be prepared and so furnished at our sole
risk and expense and (z) shall not contain information relating to the
Securities or the Company which is inconsistent in any respect with the
information contained in the then current Preliminary Prospectus or in the
Prospectus, as the case may be.
This instrument may be signed by or on behalf of the Underwriters in one
or more counterparts each of which shall constitute an original and all of which
together shall constitute one and the same agreement among all the Underwriters
and shall become effective at such time as all the Underwriters shall have
signed or have had signed on their behalf such counterparts and you shall have
confirmed all such counterparts. You may confirm such counterparts by facsimile
signature.
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This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without giving effect to the choice of law or
conflicts of laws principles thereof.
Please confirm that the foregoing correctly states the understanding
between us by signing and returning to us a counterpart hereof.
Very truly yours,
__________________________________
As Attorney-in-Fact for each of the
several Underwriters named in Schedule
I to the Underwriting Agreement.
Confirmed as of the date
first above written:
▇▇▇▇▇▇▇-▇▇▇▇▇▇ ASSOCIATES, L.P.
As Representative of
the Several Underwriters
By __________________________________
Name:
Title:
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