EXHIBIT H.2
MASTER AGREEMENT AMONG UNDERWRITERS
April 15, 1985
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
▇▇▇▇▇▇▇ ▇▇▇▇▇ World Headquarters
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs:
We understand that from time to time you may act as Representative or
as one of the Representatives of the several underwriters of offerings of
securities of various issuers. This Agreement shall apply to any offering of
securities in which we elect to act as an underwriter after receipt of an
invitation from you which shall identify the issuer, contain information
regarding certain terms of the securities to be offered and specify the amount
of our proposed participation and the names of the other Representatives, if
any, and that our participation as an underwriter in the 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 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, except that if the offering
price of the securities is to be determined as contemplated by Rule 430A under
the Securities Act of 1933 (such procedure being hereinafter referred to as
"430A Pricing"), you shall so advise us and shall specify the maximum
underwriting discount, management fee and selling concession. Such information
may be conveyed by you in one or more communications (such communications
received by us with respect to the offering are hereinafter collectively
referred to as the "Invitation"). If the Purchase Agreement (as hereinafter
defined) provides for the granting of an option to purchase additional
securities to cover over-allotments or otherwise (an "over-allotment option"),
you will notify us, in the Invitation, of such option and of our maximum
obligation upon exercise of such option.
This Agreement, as amended or supplemented by the Invitation, shall
become effective with respect to our participation in an offering of securities
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"). Our Acceptance will
constitute our confirmation that, except as otherwise stated in such Acceptance,
each statement included in the Master Underwriters' Questionnaire set forth as
Exhibit A hereto (or otherwise furnished to us) is correct. The issuer of the
securities in any offering of securities made pursuant to this Agreement is
hereinafter referred to as the "Issuer." If the Purchase Agreement does not
provide for an over-allotment option, the securities to be purchased are
hereinafter referred to as the "Securities"; if the Purchase Agreement provides
for an over-allotment option, the securities the Underwriters (as hereinafter
defined) are initially obligated to purchase pursuant to the Purchase Agreement
are hereinafter called the "Initial Securities" and any additional securities
which may be purchased upon exercise of the over-allotment option are
hereinafter called the "Option Securities," with the Initial Securities and all
or any part of the Option Securities being hereinafter collectively referred to
as the "Securities." Any underwriters of Securities under this Agreement,
including the Representatives (as hereinafter defined), are hereinafter
collectively referred to as the "Underwriters." All references herein to "you"
or to the "Representatives" shall mean ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated and the other firms, if any, which are named as Representatives in
the Invitation. The Securities to be offered may, but need not, be registered
for a delayed or continuous offering pursuant to Rule 415 under the Securities
Act of 1933 (the "1933 Act").
The following provisions of this Agreement shall apply separately to
each individual offering of Securities. This Agreement may be supplemented or
amended by you by written notice to us and, except for supplements or amendments
set forth in an Invitation relating to a particular offering of Securities, any
such supplement or amendment to this Agreement shall be effective with respect
to any offering of Securities to which this Agreement applies after this
Agreement is so amended or supplemented.
Section 1 Purchase Agreement: Authority of Representatives. We authorize
you to execute and deliver a purchase agreement and any amendment or supplement
thereto and any associated Terms Agreement or other similar agreement
(collectively, the "Purchase Agreement") on our behalf with the Issuer and/or
any selling securityholder with respect to the Securities in such form as you
determine. We will be bound by all terms of the Purchase Agreement as executed.
We understand that changes may be made in those who are to be Underwriters, and
in the amount of Securities to be purchased by them, but the amount of
Securities to be purchased by us in accordance with the terms of this Agreement,
including the maximum amount of Option Securities, if any, which we may become
obligated to purchase by reason of the exercise of any over-allotment option
provided in the Purchase Agreement, shall not be changed without our consent
except as provided in the Purchase Agreement.
As Representatives of the Underwriters, you are authorized to take such
action as you deem necessary or advisable to carry out this Agreement, the
Purchase Agreement, and the purchase and sale of the Securities, and to agree to
any waiver or modification of any provision of the Purchase Agreement. To the
extent applicable, you are also authorized to determine (i) the amount of Option
Securities, if any, to be purchased by the Underwriters pursuant to any
over-allotment option and (ii) with respect to offerings using 430A Pricing, the
initial offering price and the price at which the Securities are to be purchased
in accordance with the Purchase Agreement. It is understood and agreed that
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated may act on behalf of all
Representatives.
It is understood that, if so specified in the Invitation, arrangements
may be made for the sale of Securities by the Issuer pursuant to delayed
delivery contracts (hereinafter referred to as "Delayed Delivery Contracts").
References herein to delayed delivery and Delayed Delivery Contracts apply only
to offerings to which delayed delivery is applicable. The term "underwriting
obligation" as used in this Agreement with respect to any Underwriter, shall
refer to the amount of Securities, including any Option Securities (plus such
additional Securities as may be required by the Purchase Agreement 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 Purchase Agreement,
without regard to any reduction in such obligation as a result of Delayed
Delivery Contracts which may be entered into by the Issuer.
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 Purchase Agreement will consist, subject to adjustment as
provided in the Purchase Agreement, of serial Securities of each maturity in a
principal amount which 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 Purchase Agreement bears to the
aggregate principal amount of the serial Securities to be purchased by all the
Underwriters.
Section 2 Registration Statement and Prospectus: Offering Circular. In the
case of an Invitation regarding to an offer of Securities registered under the
1933 Act (a "Registered Offering"), you will furnish to us, to the extent made
available to you by the Issuer, copies of any registration statement or
registration statements relating to the Securities which may be filed with the
Securities and Exchange Commission (the "Commission") pursuant to the 1933 Act
and of each amendment thereto (excluding exhibits but including any documents
incorporated by reference therein). Such registration statement(s) as amended,
and the prospectus(es) relating to the sale of Securities by the Issuer
constituting a part thereof, including all documents incorporated therein by
reference, as from time to time amended or supplemented by the filing of
documents pursuant to the Securities Exchange Act of 1934 (the "1934 Act"), the
1933 Act or otherwise, are referred to herein as the "Registration Statement"
and the "Prospectus," respectively; provided, however, that a supplement to the
Prospectus filed with the Commission pursuant to Rule 424 under the 1933 Act
with respect to an offering of Securities (a "Prospectus Supplement") shall be
deemed to have supplemented the Prospectus only with respect to the offering of
Securities to which it relates.
With respect to Securities for which no Registration Statement is filed
with the Commission, you will furnish to us, to the extent made available to you
by the Issuer, copies of any private placement memorandum offering circular or
other offering materials to be used in connection with the offering of the
Securities and of each amendment thereto (the "Offering Circular").
2
Section 3 Offering. The sale of the securities to the public shall commence
as soon as you deem advisable. We will not sell any Securities until they are
released by you for that purpose. When notified by you that the Securities are
released for sale, we will offer in conformity with the terms of the offering
set forth in the Prospectus or Offering Circular, such of the Securities to be
purchased by us as are not reserved for our account (or sale to Selected Dealers
and others pursuant to Section 5. After the initial offering the offering price
and the concession and discount therefrom may be changed by you by notice to the
Underwriters, and we agree to be bound by any such change.
If, in accordance with the terms of offering set forth in the
Prospectus or Offering Circular, 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 above relating to your right to
change the offering price and concession and discount to dealers shall not
apply, and other references in this Section and elsewhere in this Agreement to
the 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.
Unless otherwise permitted in the Invitation, we will not sell any
Securities to any account over which we have discretionary authority. We will
also comply with any other restrictions which may be set forth in the
Invitation.
The initial public advertisement, if any, with respect to the
Securities shall appear on such date, and shall include the names of such of the
Underwriters, as you may determine.
Section 4 Delayed Delivery Arrangements. We authorize you to act on our
behalf in making all arrangements for the solicitation of offers to purchase
Securities from the Issuer pursuant to Delayed Delivery Contracts, and we agree
that all such arrangements will be made only through you (directly or through
Underwriters or Selected Dealers). You may allow to Selected Dealers in respect
to such Securities a commission equal to the concession allowed to Selected
Dealers pursuant to Section 5.
The obligations of the Underwriters shall be reduced in the aggregate
by the principal amount of Securities covered by Delayed Delivery Contracts made
by the Issuer, the obligation of each Underwriter to be reduced by the principal
amount of such Securities, if any, allocated by you to such Underwriter. Your
determination of the allocation for Securities covered by Delayed Delivery
Contracts among the several Underwriters shall be final and conclusive, and we
agree to be bound by any notice delivered by you to the Issuer setting forth the
amount of the reduction in our obligation as a result of Delayed Delivery
Contracts.
Upon receiving payment from the Issuer of the fee for arranging Delayed
Delivery Contracts, you will credit our account with the portion of such fee
applicable to the Securities covered by Delayed Delivery Contracts allocated to
us. You will charge our account with any commission allocated to Selected
Dealers in respect of Securities covered by Delayed Delivery Contracts allocated
to us.
Section 5 Offering to Selected Dealers and Others: Management of Offering.
We authorize you, for our account, to reserve for sale and sell to dealers
("Selected Dealers"), among whom any of the Underwriters may be included, such
amount of Securities to be purchased by us as you shall determine. 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. Sales to Selected Dealers may be made under the ▇▇▇▇▇▇▇ Lynch,
Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated Standard Dealer Agreement, or otherwise. The
price to Selected Dealers initially shall be the offering price less a
concession not in excess of the Selected Dealers concession set forth in the
Invitation. Selected Dealers shall be actually engaged in the investment banking
or securities business and shall be either (i) members in good standing of the
National Association of Securities Dealers, Inc. (the "NASD") or (ii) dealers
with their principal place of business located outside the United States, its
territories and its possessions and not registered under the 1934 Act who agree
to make no sales within the United States, its territories or its possession or
to persons who are nationals thereof or residents therein or (iii) banks that
are not eligible for membership in the NASD. Each Selected Dealer shall agree to
comply with the provisions of Section 24 of
3
Article III of the Rules of Fair Practice of the NASD, and each foreign Selected
Dealer or bank 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 or bank.
With your consent, the Underwriters may allow, and Selected Dealers may
reallow, a discount on sales to any dealer who meets the above NASD requirements
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, for our account, to reserve for sale and to sell
Securities to be purchased by us at the offering price to others, including
institutions and retail purchasers. Except for such sales which are designated
by a purchaser to be for the account of a particular Underwriter, such
reservations and sales shall be made as nearly as practicable in proportion to
our underwriting obligation, unless you agree to a smaller proportion at our
request.
At or before the time the Securities are released for sale, you shall
notify us of the amount of Securities which have not been reserved for our
account for sale to Selected Dealers and others and which is to be retained by
us for direct sale.
We will from time to time, upon your request, report to you the amount
of Securities retained by us for direct sale which remains unsold and, upon your
request, 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 offering price less 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
Underwriters, at prices determined by you not in excess of the offering price
less 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 to, but not purchased and paid for by, Selected Dealers or others as
above provided, but 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.
The Underwriters and Selected Dealers may, with your consent, purchase
Securities from and sell Securities to each other at the offering price less a
concession not in excess of the concession to Selected Dealers.
▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇ of Securities Not Effectively Placed. In recognition
of the importance of distributing the Securities to bona fide investors, we
agree to repurchase on demand any Securities sold by us, except through you,
which are purchased by you in the open market or otherwise during a period
terminating as provided in Section 16, at a price equal to the cost of such
purchase, including accrued interest, amortization of original issue discount or
dividends, commissions and transfer and other taxes, if any, on redelivery. The
certificates delivered to us need not be identical certificates delivered to you
in respect of the Securities purchased. In lieu of requiring repurchase, you
may, in your discretion, sell such Securities for our account at such prices,
upon such terms and to such persons, including any of the other Underwriters, as
you may determine, charging the amount of any loss and expense, or crediting the
amount of any net profit, resulting from such sale, to our account, or you may
charge our account with an amount determined by you not in excess of the
concession to Selected Dealers.
Section 7 Stabilization and Over-Allotment. In order to facilitate the sale
of the Securities, we authorize you, in your discretion, to purchase and sell
Securities or any other securities of the Issuer or any guarantor of the
Securities specified in the Invitation in the open market or otherwise, for long
or short account, at such prices as you may determine, and, in arranging for
sales to Selected Dealers or others, to over-allot. You may liquidate any long
position or cover any short position incurred pursuant to this Section at such
prices as you may determine. You shall make such purchases and sales (including
over-allotments) for the accounts of the Underwriters as nearly as practicable
in proportion to their respective underwriting obligations. It is understood
that, in connection with any particular offering of Securities to which this
Agreement applies, you may have made purchases of securities of the
4
Issuer or securities of any guarantor of the Securities for stabilizing purposes
prior to the time when we become an Underwriter, and we agree that any such
securities so purchased shall be treated as having been purchased for the
respective accounts of the Underwriters pursuant to the foregoing authorization.
At the close of business on any day or net commitment, either for long or short
account, resulting from such purchases or sales (including over-allotments)
shall not exceed 20% (or such other amount as may specified in the Invitation)
of our underwriting obligation, except that such percentage may be increased
with the approval of a majority in interest of the Underwriters. We will take up
at cost on demand any Securities or other securities of the Issuer or any
securities of any guarantor of the Securities so sold or over-allotted for our
account, including accrued interest, amortization of original issue discount or
dividends, and we will pay to you on demand the amount of any losses or expenses
incurred for our account pursuant to this Section. In the event of default by
any Underwriter in respect of its obligations under this Section, each
non-defaulting Underwriter shall assume its share of the obligations of such
defaulting Underwriter in the proportion that its underwriting obligation bears
to the underwriting obligations of all non-defaulting Underwriters without
relieving such defaulting Underwriter of its liability hereunder.
If you effect any stabilizing purchase pursuant to this Section, 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 1934 Act.
Section 8 Open Market Transactions. We represent and agree in connection
with the offering of Securities we have complied and will comply with the
provisions of Rule 10b-6 under the 1934 Act with regard to trading in the
Securities. For purposes of the foregoing sentence, we agree that, in addition
to the Securities, other securities of the Issuer or securities of any guarantor
of the Securities or the right or option to purchase or otherwise acquire any
securities of the Issuer or any securities of any guarantor of the Securities
specified in the Invitation shall be considered securities of the same class and
series as the Securities.
Section 9 Payment and Delivery. At or before such time on such dates and at
such places as you may specify in the Invitation, we will deliver to you a
certified or official bank check in such funds as are specified in the
Invitation, payable to the order of ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated (unless otherwise specified in the Invitation) in an amount equal
to, as you direct, either (i) the offering price or prices plus accured
interest, amortization of original issue discount or dividends, if any, set
forth in the Prospectus or Offering Circular less the concession to Selected
Dealers in respect of the amount of Securities to be purchased by us in
accordance with the terms of this Agreement, or (ii) the amount set forth in the
Invitation with respect to the Securities to be purchased by us. We authorize
you to make payment for our account of the purchase price for the Securities to
be purchased by us against delivery to you of such Securities (which may be in
temporary form), and the difference between such purchase price of the
Securities and the amount of our funds delivered to you therefor shall be
credited to our account.
Delivery to us of Securities retained by us for direct sale shall be
made by you as soon as practicable after your receipt of the Securities. Upon
termination of the provisions of this Agreement as provided in Section 16, you
shall deliver to us any Securities reserved for our account for sale to Selected
Dealers and others which remain unsold at that time.
You are authorized to make appropriate arrangements for payment for
and/or delivery through the facilities of The Depository Trust Company or any
such other depository or similar facility, 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 to you.
Upon receiving payment for Securities sold for our account to Selected
Dealers and others, you shall remit to us an amount equal to the amount paid by
us to you in respect of such Securities and credit or charge our account with
the difference, if any, between such amount and the price at which such
Securities were sold.
In the event that the Purchase 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.
5
Section 10 Management Compensation. As compensation for your services in
the management of the offering, we will pay you an amount equal to the
management fee specified in the Invitation in respect of the Securities to be
purchased by us pursuant to the Purchase Agreement, and we authorize you to
charge our account with such amount. If there is more than one Representative,
such compensation shall be divided among the Representatives in such proportions
as they may determine.
Section 11 Authority to Borrow. We authorize you to advance your own funds
for our account, charging current interest rates, or to arrange loans for our
account or the account of the Underwriters, as you may deem necessary or
advisable for the purchase, carrying, sale and distribution of the Securities.
You may execute and deliver any notes or other instruments required in
connection therewith and may hold or pledge as security therefor all or any part
of the Securities which we or such Underwriters have agreed to purchase. The
obligations of the Underwriters under loans arranged on their behalf shall be
several in proportion to their respective participations in such loans, and not
joint. Any lender is authorized to accept your instructions as to the
disposition of the proceeds of any such loans. You shall credit each Underwriter
with the proceeds of any loans made for its account.
Section 12 Legal Qualifications. 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. You are authorized
to file with the Department of State of the State of New York a Further State
Notice with respect to the Securities, if necessary.
If we propose to offer Securities outside the United States, its
territories or its possessions, we will take, at our own expense, such action,
if any, as may be necessary to comply with the laws of each foreign jurisdiction
in which we propose to offer Securities.
Section 13 Membership in National Association of Securities Dealers,
Foreign Underwriters and Banks. We understand that you are a member in good
standing of the NASD. We 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 under
the 1934 Act who hereby agrees to make no 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 5 of this Agreement) or (iii) a bank not eligible for
membership in the NASD. We hereby agree to comply with Section 24 of Article III
of the Rules of Fair Practice of the NASD, and if we are a foreign dealer or
bank 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, 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 or
bank.
Section 14 Distribution of Prospectuses: Offering Circulars. We are
familiar with Securities Act of 1933 Release No. 4968 and Rule 15c-2-8 under the
1934 Act, relating to the distribution of preliminary and final prospectuses,
and we confirm that we will comply therewith, to the extent applicable, in
connection with any sale of Securities. You shall cause to be made available to
us, to the extent made available to you by the Issuer, such number of copies of
the Prospectus as we may reasonably request for purposes contemplated by the
1933 Act, the 1934 Act and the rules and regulations thereunder.
Our Acceptance of an Invitation relating to an offering made pursuant
to an Offering Circular shall constitute our agreement that, if requested by
you, we will furnish a copy of any amendment to a preliminary or final Offering
Circular to each person to whom we shall have furnished a previous preliminary
or final Offering Circular. Our Acceptance shall constitute 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 any additional instructions contained in the Invitation and,
to the extent consistent with such laws, rules and regulations, our Acceptance
shall constitute our confirmation that we have delivered and our agreement that
we will deliver all preliminary and final Offering Circulars which would be
required if the provisions of Rule 15c-2-8 (or any successor provision) under
the 1934 Act applied to such offering.
6
Section 15 Net Capital. The incurrence by us of our obligations hereunder
and under the Purchase Agreement in connection with the offering of the
Securities will not place us in violation of the net capital requirements of
Rule 15c3-1 under the 1934 Act 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.
Section 16 Termination. With respect to each offering of Securities
pursuant to this Agreement, all limitations in this Agreement on the price at
which the Securities may be sold, the period of time referred to in Section 6,
the authority granted by the first sentence of Section 7, and the restrictions
contained in Section 8 shall terminate at the close of business on the 45th day
after the commencement of the offering of such Securities. You may terminate any
or all of such provisions at any time prior thereto 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.
Section 17 Expenses and Settlement. You may charge our account with any
transfer taxes on sales of Securities made for our account and with our
proportionate share (based upon our underwriting obligation) of all other
expenses incurred by you under this Agreement or otherwise in connection with
the purchase, carrying, sale or distribution of the Securities. With respect to
each offering of Securities pursuant to this Agreement, the respective accounts
of the Underwriters shall be settled as promptly as practicable after the
termination of all the provisions of this Agreement as provided in Section 16,
but you may reserve such amounts as you may deem advisable for additional
expenses. Your determination of the amount to be paid to or by us shall be
conclusive. 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 with respect to each offering of Securities pursuant to this
Agreement.
Section 18 Indemnification. With respect to each offering of Securities
pursuant to this Agreement, we will indemnify and hold harmless each other
Underwriter and each person, if any, who controls each other Underwriter within
the meaning of Section 15 of the 1933 Act, to the extent that and on the terms
upon which we agree to indemnify and hold harmless the Issuer and other
specified persons as set forth in the Purchase Agreement.
Section 19 Claims Against Underwriters. With respect to each offering of
Securities pursuant to this Agreement, if at any time any person other than an
Underwriter assets a claim (including any commenced or threatened investigation
or proceeding by any governmental agency or body) against one or more of the
Underwriters or against you as Representatives of the Underwriters arising out
of an alleged untrue statement or omission in the Registration Statement (or any
amendment thereto) or in any preliminary prospectus or the Prospectus or any
amendment or supplement thereto, or in any preliminary or final Offering
Circular, or relating to any transaction contemplated by this Agreement, we
authorize you to make such investigation, to retain such counsel for the
Underwriters and to take such action in the defense of such claim as you may
deem necessary or advisable. You may settle such claim with the approval of a
majority in interest of the Underwriters. We will pay our proportionate share
(based upon our underwriting obligation) of all expenses incurred by you
(including the fees and expenses of counsel for the Underwriters) as incurred,
in investigating and defending against such claim and our proportionate share of
the aggregate liability incurred by all Underwriters in respect to such claim
(after deducting any contribution or indemnification obtained pursuant to the
Purchase Agreement, or otherwise, from persons other than Underwriters), whether
such liability is the result of a judgment against one or more of the
Underwriters or the result of any such settlement. Any Underwriter may retain
separate counsel at its own expense. A claim against or liability incurred by a
person who controls an Underwriter shall be deemed to have been made against or
incurred by such Underwriter. In the event of default by any Underwriter in
respect of its obligations under this Section, the non-defaulting Underwriters
shall be obligated to pay the full amount thereof in the proportions that their
respective underwriting obligations bear to the underwriting obligations of all
non-defaulting Underwriters without relieving such defaulting Underwriter of its
liability hereunder.
Section 20 Default by Underwriters. Default by any Underwriter in respect
of its obligations hereunder or under the Purchase Agreement shall not release
us from any of our obligations or in any way affect the
7
liability of such defaulting Underwriter to the other Underwriters for damages
resulting from such default. If one or more Underwriters default under the
Purchase Agreement, if provided in such Purchase Agreement you may (but shall
not be obligated to) arrange for the purchase by others, which may include
yourselves or other non-defaulting Underwriters, of all or a portion of the
Securities not taken up by the defaulting 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 Purchase 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 Purchase
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 Purchase Agreement, to assume our proportionate
share, based upon our underwriting obligation, of the obligations of each such
defaulting Underwriter (subject to the limitations contained in the Purchase
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 respective underwriting obligation, of the
obligations of each defaulting Underwriter without relieving any such defaulting
Underwriter of its liability therefor.
Section 21 Legal Responsibility. As Representatives of the Underwriters,
you shall have no liability to us, except for your lack of good faith and for
obligations assumed by you in this Agreement and except that we do not waive any
rights that we may have under the 1933 Act or the 1934 Act or the rules and
regulations thereunder. No obligations not expressly assumed by you in this
Agreement shall be implied herefrom.
Nothing herein contained shall constitute the Underwriters an
association, or partners, with you, or with each other, or, except as otherwise
provided herein or in the Purchase Agreement, render any Underwriter liable for
the obligations of any other Underwriter, and the rights, obligations and
liabilities of the Underwriters are several in accordance with their respective
underwriting obligations and not joint.
If the Underwriters are deemed to constitute a partnership for federal
income tax purposes, we elect to be excluded from the application of Subchapter
K, Chapter 1, Subtitle A, of the Internal Revenue Code of 1954, as amended, and
agree not to take any position inconsistent with such election, and you, as
Representatives, 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.
Unless we have promptly notified you in writing otherwise, our name as
it should appear in the Prospectus or Offering Circular and our address are set
forth on the signature pages hereof.
Section 22 Notices. Any notice from you shall be deemed to have been
duly given if mailed or transmitted to us at our address appearing below.
Section 23 Governing Law. This Agreement shall be governed by the laws
of the State of New York applicable to agreements made and to be performed in
said State.
Please confirm this Agreement and deliver a copy to us.
Very truly yours,
Name of Firm:
By:
----------------------------------------
Authorized Officer or Partner
Address:
-----------------------------------------
-----------------------------------------
-----------------------------------------
Confirmed as of the date first above written.
MERRILL, LYNCH, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By:
------------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
8