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EXHIBIT 2.h.2.
MASTER AGREEMENT AMONG UNDERWRITERS
January 1, 1996
EVEREN Securities, Inc.
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Ladies and Gentlemen:
From time to time after the date hereof you may act as Representative
or as one of the Representatives of the members of an underwriting syndicate
for offerings of securities of various issuers. This will confirm our
agreement as to the general terms and conditions applicable to our
participation in any such underwriting syndicate.
1. Applicability of 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 you identifying the issuer and the names of the
other Representatives, if any, containing information regarding certain terms
of the securities to be offered, specifying the amount of our proposed
participation and stating 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 public
offering price, the interest or dividend rate (or the method by which such rate
is to determined), the conversion price, the underwriting discount, the
management fee, the selling concessions and the reallowance, except that if the
public offering price of the hereinafter referred to as "Formula Pricing"), you
shall so advise us and shall specify the maximum underwriting discount,
management fee and selling concession. The foregoing information may be
conveyed by you in one or more communications by telegram, telex, telecopier or
other written form of communication and are hereinafter collectively referred
to as the "Invitation." If the Underwriting Agreement (as hereinafter defined)
provides for the granting to the Underwriters of an option to purchase
additional securities to cover over-allotments, if any, you will notify us, in
the Invitation, of such option and of our maximum obligation upon exercise of
such option. The Invitation may also contain additional provisions which
supplement or amend the terms of this Agreement.
This Agreement, as amended or supplemented by the Invitation, shall
become effective with respect to our participation in an offering of securities
if your Syndicate Department receives our oral or written acceptance prior to
the time and date specified in the Invitation (our unrevoked acceptance after
such time and date being hereinafter referred to as our "Acceptance" and you do
not receive a written communication revoking 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 Underwriting
Agreement does not provide for an overallotment option, the securities to be
purchased are hereinafter called the Firm Securities and any additional
securities which may be purchased upon exercise of the over-allotment option
are hereinafter called the Additional Securities, with the Firm Securities and
all or any part of the Additional 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", to "EVEREN", or to the "representatives" shall mean EVEREN
Securities, Inc. and the other firms, if any, which are named as
Representatives in the Invitation. It is understood and agreed that EVEREN
may act on behalf of all Representatives. The Securities to be offered may,
but need not, be registered for a delayed or continuous offering pursuant to
Rule 415 under the Securities Act of 1933 (the "1933 Act").
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 amendment to this Agreement shall
be effective with respect to any offering of Securities to which this Agreement
applies commenced after this Agreement is so amended or supplemented.
2. Offering Documents. In case of an invitation regarding an
offering 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 relating to the Securities filed with the
Securities and Exchange Commission (the "Commission") pursuant to the 1933 Act
and each amendment thereto (excluding exhibits by including any documents
incorporated by reference therein). If the registration statement relates to
securities to be offered on a delayed or continuous basis pursuant to Rule 415
under the 1933, Act, the term "Registration Statement" means such registration
statement as amended to the date of the Underwriting Agreement. Otherwise, the
term Registration Statement means such registration statement as amended at the
time when it becomes effective (including the information, if any, deemed to be
a part of such Registration Statement at the time of the effectiveness pursuant
to rule 430A under the 1933 Act). The term "Prospectus" means the prospectus,
together with a final prospectus supplement, if any, relating to the offering
of the Securities, and in the form first used to confirm sales of the
Securities. The term "preliminary prospectus" means any preliminary prospectus
related to the offering of the Securities or any preliminary prospectus
supplement together with a prospectus relating to the offering of the
Securities. As used herein the terms Registration Statement, Prospectus and
preliminary prospectus shall include in each case the material if any,
incorporated by reference therein.
With respect to Securities for which no Registration Statement is
filed with the Commission, you will furnish to us, to the extent made available
to you by the Issuer, copies of any offering circular or other offering
materials to be used in connection with the offering of the Securities and of
each amendment thereto (the "Offering Circular").
We understand that it is our responsibility to examine the
Registration Statement, the Prospectus, the Offering Circular, any amendment or
supplement thereto relating to the offering of the Securities, any preliminary
prospectus or offering circular and the material, if any, incorporated by
reference therein and we will familiarize ourself with the terms of the
Securities and the other terms of the offering thereof which are to be
reflected in the Prospectus or Offering Circular and the Invitation. You are
authorized, with the approval of counsel for the Underwriters, to approve on
our behalf any amendments or supplements to the Registration Statement or the
Prospectus or Offering Circular.
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3. Underwriting Agreement. We authorize you to execute and deliver
an underwriting or purchase agreement and any amendment or supplement thereto
and any associated Terms Agreement or other similar agreement (collectively,
the "Underwriting Agreement") on our behalf with the Issuer and/or any selling
security holder with respect to the Securities in such form as you determine.
We will be bound by all terms of the Underwriting Agreement as executed. The
term "original underwriting commitment," as used in this Agreement with respect
to any Underwriter, shall refer to the amount of Firm Securities set forth
opposite such Underwriter's name in the Underwriting Agreement plus any
additional Firm Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of the Underwriting Agreement or Section 13
hereof. The ratio which such original underwriting commitment bears to the
aggregate amount of Firm Securities to be purchased by all the Underwriters is
referred to in this Agreement as the "underwriting proportion" of such
Underwriter.
It is understood that, if so specified in the Invitation, arrangements
may be made for the sale of the Securities by the Issuer pursuant to delayed
delivery contracts (herein 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.
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 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 Underwriting Agreement bears
to the aggregate principal amount of the serial Securities to be purchased by
all the Underwriters.
4. Authority of Representative. You are also authorized in your sole
discretion to take the following actions with respect to the Underwriting
Agreement: (a) To postpone any closing date or option closing date or to
extend any other time or date specified in the Underwriting Agreement; (b) To
exercise any right of cancellation or termination; (c) To arrange for the
purchase by other persons (including yourselves or any other Underwriters) of
any of the Securities not taken up by an defaulting Underwriter or by the other
Underwriters as provided in the Underwriting Agreement; (d) To give notice on
our behalf of the determination to purchase any Additional Securities; (e) With
respect to offerings using Formula Pricing, to determine the initial public
offering price and the price at which the Securities are to be purchased in
accordance with the Underwriting Agreement; (f) To consent to any other
additions to, changes in or waivers of provisions of the Underwriting
Agreement, and to take such other action in connection with the offering of the
Securities, as may seem advisable to you in respect thereof.
5. Method of Offering. We authorize you 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, carrying and resale desirable:
(a) To determine the time of the initial public offering of the Securities, and
the initial public offering price and the Underwriters' gross spread and
whether to purchase any Additional Securities and the amount, if any, of
Additional Securities to be purchased; (b) To make any changes in the public
offering price or other terms of the offering; (c) To make changes in those
who are to Underwriters and in the respective amounts of the Firm Securities to
be purchased by them, provided that our original underwriting commitment shall
not be changed without our consent; (d) To determine all matters relating to
advertising and communications with dealers or others; (e) To reserve for sale
and to sell to institutions or other retail purchasers, for our account, such
of our Securities as you may determine; provided, however, that such
reservations and sales shall be made for the respective accounts of the several
Underwriters as nearly as practicable in their respective underwriting
proportions, except for such sales for the account of a particular Underwriter
designated by such a purchaser; (f) To reserve for sale and to sell to
dealers, for our account, such of our Securities as you may determine;
provided, however, that such dealers shall be actually engaged in the
investment banking or securities business and shall be either members in good
standing of the National Association of Securities Dealers, Inc. (the "NASD")
or dealers registered as a broker-dealer under Section 15 of the Securities
Exchange Act of 1934 (the "1934 Act") who agree to make no sales within the
United States, its territories or its possessions or to persons who are
nationals thereof or residents therein; and provided, further, that each dealer
shall agree to comply with the provisions of Section 24 of Article 111 of the
Rules of Fair Practice of the NASD, and each foreign dealer who is not a member
of the NASD also shall agree to comply with the NASD's interpretation with
respect to free-riding and withholding, to comply, as though it were a member
of the NASD, with the provisions of Sections 8 and 36 of Article 111 of such
Rules of Fair Practice, and to comply with Section 25 of Article 111 thereof as
that Section applies to a nonmember foreign dealer; (g) To apportion such sales
to dealers among the Underwriters as nearly as practicable in the ratio
reserved; provided, however, that if such ratio is to be revised by reason of
the release for direct sale as hereinafter provided, sales may be apportioned
by you from day to day on the basis of the ration existing at the end of the
preceding day; (h) To fix the concession to dealers and reallowance to dealers
and, after the initial public offering of the Securities, to make changes in
the concessions and reallowance, (i) At any time with respect to unsold
Securities retained by us: (A) to reserve any of such Securities for sale by
you for our account, or (B) to purchase any of such Securities which in your
opinion are needed to enable you to make deliveries for the accounts of the
several Underwriters pursuant to this Agreement. Such purchases may be made at
the public offering price, or at your option, at such price less all or any
part of the concession to dealers.
We understand that you will advise us when the Securities are released
for public offering and of the amount of Securities sold or reserved for sale
for our account. We shall retain for direct sale any Securities purchased by
us and not so sold or reserved. Direct sales will be made in accordance with
the terms of offering set forth in the Prospectus or Offering Circular. With
your consent, we may obtain release from you for direct sale of any Securities
held by you for sale pursuant to subparagraphs (3) and (f) above but not sold
and paid for. To the extent Securities so released had been reserved for sale
to dealers, the amount of Securities reserved for our account for sale to
dealer shall be correspondingly reduced. We promptly will advise you at your
request, of the amount of Securities retained by us which remain unsold and of
the amount of Securities remaining unsold which were delivered to us pursuant
to the last paragraph of this Section 4.
If so directed in the Invitation, we agree that without your express
prior written consent we will not sell to any account over which we exercise
discretionary authority any of our Securities. We will also comply with any
other restriction which may be set forth in the Invitation.
If, prior to the termination of this Agreement with respect to the
offering of the Securities, you shall purchase or contract to purchase any of
the Securities sold directly by us, in your discretion you may (i) sell for our
account the Securities so purchased and debit or credit our account for the
loss or profit resulting from such sale, (ii) charge our account with an amount
equal to the concession to dealers with respect thereto and credit such amount
against the cost thereof or (iii) require us to purchase such Securities at a
price equal to the total cost of such purchase, including commissions, accrued
interest, amortization of original issue discount or dividends and transfer
taxes on redelivery.
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6. Delayed Delivery Arrangements. We authorize you to act on our
behalf in making all arrangements for the solicitation of offers to purchase
Securities from the Issuer pursuant to Delayed Delivery Contracts, and we agree
that all such arrangements will be made only through you (directly or through
Underwriters or dealers). You may allow to dealers in respect of such
Securities a commission equal to the concession allowed to dealers pursuant to
Section 5.
The commitments of the Underwriters shall be reduced in the aggregate
by the principal amount of Securities covered by Delayed Delivery Contracts
made by the Issuer, the commitment 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 of Securities covered by
Delayed Delivery Contracts among the several Underwriters shall be final and
conclusive, and we agree to be bound by any notice delivered by you to the
Issuer setting forth the amount of the reduction in our commitment as a result
of Delayed Delivery Contracts.
Upon receiving payment from the Issuer of the fee for arranging
Delayed Delivery Contracts, you will credit our account with the portion of
such fee applicable to the Securities covered by Delayed Delivery Contracts
allocated to us. You will charge our account with any commission allocated to
dealers in respect of Securities covered by Delayed Delivery Contracts
allocated to us.
7. Trading Authorization. We authorize EVEREN, during the term of
this Agreement relating to the offering of the Securities in its discretion:
(a) To make purchases and sales of Securities, any securities into which the
Securities are convertible or for which the Securities are exchangeable and any
other securities of the Issuer or any guarantor of the Securities specified in
the Invitation, in the open market or otherwise (in addition to purchases and
sales made under the authority of Section 5), either for long or short account,
on such terms and at such prices as it may determine; (b) In arranging for
sales of the Securities pursuant to Section 5, to over-allot, and to make
purchases for the purpose of covering any over-allotment so made.
It is understood that, in connection with the offering of the
Securities EVEREN may have made purchases of any such securities for
stabilizing purposes prior to the time when we became one of the Underwriters
and we agree that any such securities so purchased shall be treated as having
been purchased for the respective accounts of the Underwriters pursuant to the
foregoing authorization.
All such purchases and sales and over-allotments shall be made for
respective accounts of the several Underwriters as nearly as practicable in
their respective underwriting proportions; provided, however, that at no time
shall our net commitment resulting from such purchases and sales, either for
long or short account, or pursuant to such over-allotments, exceed 15% (or such
other amount as may be specified in the Invitation) of our original
underwriting commitment and provided, further that in determining our net
commitment for short account there shall be subtracted the maximum amount of
Additional Securities which we are entitled to purchase. We agree to take up
at cost on demand any securities so purchased for our account and to deliver
on demand any securities so sold or so over-allotted for our account. Without
limiting the generality of the foregoing , EVEREN, may buy or take over for the
respective accounts of the several Underwriters, all in the proportion and
within the limits set forth, at the price at which reserved, any of the
Securities reserved for sale by it but not sold and paid for, for such purposes
as it may determine, including, but not limited to, the covering of
over-allotments and short sales.
If EVEREN engages in any stabilization transaction pursuant to this
Section, it will notify us promptly of the date and time of the first
stabilizing purchase and the date and time of termination of stabilization.
EVEREN shall prepare and maintain such records as are required to be maintained
by it as manager pursuant to Rule 17a-2 under the 1934 Act.
8. Limitation on Transactions by Underwriters. If the Securities are
shares of common stock ("Common Stock") of the Issuer or securities of the
Issuer that may be exchanged for or converted into Common Stock, we agree that
we will not, without the express prior written consent of EVEREN, buy, sell,
deal or trade in (i) any Common Stock, (ii) any security of the Issuer
convertible into Common Stock or (iii) any right or option to acquire or sell
Common Stock or any security of the Issuer convertible into Common Stock, for
our own account or for the account of a customer, except: (a) as provided for
in this Agreement or the Underwriting Agreement; (b) that we may convert any
security of the Issuer convertible into Common Stock owned by us and sell the
Common Stock acquired upon such conversion and that we may deliver Common Stock
owned by us upon the exercise of any option written by us as permitted by the
provisions set forth herein; (c) in brokerage transactions on unsolicited
orders which have not resulted from activities on our part in connection with
the solicitation of purchases and which are executed by using the ordinary
course of our brokerage business; and (d) than on or after the date of the
initial public offering of the Securities, we may execute covered writing
transactions in options to acquire Common Stock, when such transactions are
covered by Securities, for the accounts of customers.
An opening uncovered writing transaction in options to acquire Common
Stock for our account or for the account of a customer shall be deemed, for
purposes of this Section 8, to be a sale of Common Stock which is not
unsolicited. The term "opening uncovered writing transaction in options to
acquire" as used above means a transaction where the seller intends to become a
writer of an option to purchase any Common Stock which he does not own. An
opening uncovered purchase transaction in options to sell Common Stock for our
account or for the account of a customer shall be deemed, for purposes of this
paragraph, to be a sale of Common Stock which is not unsolicited. The term
"opening uncovered purchase transaction in options to sell" as used above means
a transaction where the purchaser intends to become an owner of an option to
sell Common Stock which he does not own.
If the Securities are not shares of Common Stock or securities of the
Issuer that may be exchanged for or converted into Common Stock, we agree that
we will not bid for or purchase, or attempt to induce any other person to
purchase, any Securities or any other securities of the Issuer designated in
the Invitation other than (i) as proved for in this Agreement or the
Underwriting Agreement, (ii) as expressly approved in writing by EVEREN or (iii)
as a broker in executing unsolicited orders.
We represent that we have not participated in any transaction
prohibited by the preceding paragraphs this Section 8 and that we have at all
times complied with and will at all times comply with the provisions of Rule
10b-6 of the Commission applicable to the offering of the Securities.
We may, with your express prior written consent, make purchases of the
Securities from and sales to other Underwriters at the public offering price,
less all or any part of the concession to dealers.
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9. Delivery and Payment. 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 EVEREN (unless otherwise specified in the
Invitation) in an amount equal to, as you direct, (i) the public offering price
or prices plus accrued interest, amortization of original issue discount or
dividends, if any, set forth in the Prospectus or Offering Circular less the
selling concession in respect of such of the Securities to be purchased by us
as shall have been retained by or released to us for direct sale, of (iii) the
amount set forth in the Invitation with respect to the Securities to be
purchased by us. You shall use such funds to make payment on our behalf of the
purchase price for the Securities to be purchased by us. Any balance shall be
held by you for our account. If you have not received our funds as requested
you may in your discretion make any such payment on our behalf and we will
promptly deliver funds to you in the amount so requested. Any such payment by
you will not relieve us from any of our obligations under this Agreement or
under the Underwriting Agreement.
We authorize you, in carrying out the provisions of this Agreement, in
your discretion, to arrange loans for our account, to advance your funds for
our account, charging current interest rates, and to hold or pledge as
security therefor all or any part of the Securities which you may be holding
for our account. Any lender is hereby authorized to accept your instructions
with respect to such loans, and we authorize you to execute and deliver notes
or other instruments in connection therewith.
You shall remit to us or credit to our account (i) the proceeds of any
loan taken down on our behalf and (ii) upon receiving payment to you for any
Securities sold for our account, an amount equal either to the purchase price
paid by us of the price received by you therefor, as you may determine. If the
Underwriting Agreement for an offering provides for the payment of a commission
or other compensation to the Underwriters, we authorize you to receive such
commission or other compensation for our account.
We authorize you to take delivery of certificates for our Securities
(which may, in the case of Securities which are debt obligations, be in
temporary form), registered as you may direct in order to facilitate
deliveries, and to deliver any Securities reserved for us against sales. You
will deliver to us certificates for our unreserved Securities and certificates
for our reserved but unsold Securities as soon as practicable after the
termination of the provisions referred to in Section 11. If we are a member of
the Depositary Trust Company, you may at your discretion arrange for payment
for and/or deliver of our participation through the facilities of such Company
or, if we are not a member, such settlement may be made through our ordinary
correspondent who is a member.
Certificates for all other Securities which you then hold for our
account shall be delivered to us upon termination of this Agreement with
respect to the offering of the Securities, or prior thereto in your discretion,
and certificates for any such Securities may at any time be delivered to us for
carrying purposes only, subject to redelivery upon demand. If, upon
termination of this Agreement with respect to the offering of the Securities,
an aggregate of not more than 10% of the Securities remains unsold, EVEREN may,
in its discretion, sell such Securities at such prices as it may determine.
10. Indemnification and Certain Claims. With respect to each
offering of Securities pursuant to this Agreement, we agree to indemnify and
hold harmless each of the other Underwriters, and each person, if any, who
controls any other Underwriter within the meaning of Section 15 of the 1933 Act
or Section 20 of the 1934 Act and to reimburse their expenses, all to the
extent, if any, and upon the terms that we agree to indemnify and hold harmless
the Issuer and other specified persons and to reimburse their expenses, as set
forth in the Underwriting Agreement.
With respect to each offering of Securities pursuant to this
Agreement, we will pay our proportionate share (based on our underwriting
proportion) of (a) all expenses incurred by you in investigating or defending
against any claim or proceeding which is asserted or instituted by any party
(including any governmental or regulatory body) other than an Underwriter based
upon the claim that the Underwriters constitute an association, unincorporated
business or other separate entity, or relating to the Registration Statement or
Prospectus or Offering Circular for any amendment or supplement thereto) or any
preliminary prospectus or offering circular and (b) any liability incurred by
you in respect of any such claim or proceeding, whether such liability shall be
the result of a judgement or as a result of any settlement agreed to by you,
other than any such liability as to which you actually receive indemnity
pursuant to the first paragraph of this Section 10 or indemnity or contribution
pursuant to the Underwriting Agreement.
11. Termination and Settlement. With respect to each offering of
Securities pursuant to this Agreement, this Agreement shall terminate (i) on
the thirtieth business day after the initial public offering of the Securities,
(ii) on such earlier date as you may determine or (iii) on the termination of
the Underwriting Agreement if the Underwriting Agreement shall be terminated as
permitted by its terms. You may at your discretion, on notice to us prior to
the termination of this Agreement with respect to the offering of the
Securitites, terminate or suspend us prior to the terinaton of this Agreement
with respect to the offering of the Securities, terminate or suspend the
effectiveness of Sections 5, 7 and 8 hereof or any part of them, or alter any
of the terms or conditions of offering determined pursuant to Section 5 hereof.
No termination or suspension pursuant to this Section shall affect your
authority under Section 7 hereof to over any short position under this
Agreement.
Upon termination of this Agreement with respect to the offering of the
Securities, all authorizations, rights and obligations hereunder shall cease,
except (i) the mutual obligations to settle accounts hereunder, (ii) our
obligation to pay any transfer taxes which may be assessed and paid on account
of any sales hereunder for our account, (iii) our obligation with respect to
purchases which may be made by you from time to time thereafter to cover any
short position incurred under this Agreement, (iv) our agreements contained in
the first and their paragraphs of Section 10 hereof and (v) the obligations of
any defaulting Underwriter, all of which shall continue until fully discharged.
The accounts arising pursuant to this Agreement with respect to the
offering of the Securities shall be settled and paid as soon as practicable
after termination hereof with respect to such offering, except that you may
reserve such amount as you deem advisable to cover any additional contingent
expenses.
You are authorized at any time: (a) To make partial distributions of
credit balances or call for the payment of debit balances (b) To determine the
amounts to be paid to or by us, which determination will be final and
conclusive; (c) As compensation for your services in connection with this
Agreement with respect to the offering of the Securities, to charge our account
and pay to yourselves, when final accounting is made, an amount per security to
be determined by you (not to exceed the amount or the percentage of the
Underwriters' gross spread per security specified in the Invitation) for each
Security which we have agreed or shall become committed to purchase
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pursuant to the Underwriting Agreement; (d) To charge our account with (i) all
transfer taxes on sales made for our account and (ii) our underwriting
proportion of all expenses (other than transfer taxes) incurred by you, as
Representatives of the several Underwriters, in connection with the
transactions contemplated by this Agreement with respect to the offering of the
Securities; (e) To hold any of our funds at any time in your hands with your
general funds without accountability for interest.
12. Blue Sky Qualification. Upon request, you will inform us as to
the jurisdictions in which you have been advised by counsel that the Securities
have been registered or qualified for sale under the respective securities or
Blue Sky laws, but you do not assume any responsibility or obligation as to our
right to sell the Securities in any jurisdiction.
You are authorized to file or cause to be filed a Further State Notice
with the Department of State of New York.
13. Default by Underwriters. Default by any Underwriter in respect
of its obligations or in any way affect the liability of such defaulting
Underwriter to the other Underwriters for damages resulting from such default.
If one or more Underwriters default under the Underwriting Agreement, if
provided in the Underwriting Agreement you may (but shall not be obligated to)
arrange for the purchase by other, which may include yourselves or other
nondefaulting Underwriters, of all or a portion of the Securities not taken up
by the defaulting Underwriters.
If such arrangements are made, the respective original underwriting
commitments of the non-defaulting Underwriters and the amounts of the
Securities to be purchased by others, if any, 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 to assume our proportionate share, based upon our
original underwriting commitment, of the obligation of each such defaulting
Underwriter (subject to the limitations contained in the Underwriting
Agreement) without relieving such defaulting Underwriter of its liability
therefore.
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 original underwriting commitment, of
the obligations of each defaulting Underwriter without relieving any such
defaulting Underwriter of its liability therefor.
14. Distribution of Prospectuses; Offering Circulars. We are
familiar with Securities Act of 1933 Release No. 4968 and Rule 15c2-8 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 reasonable request for purposes contemplated by the
1933 Act, the 1934 Act and the rules and regulations thereunder.
If an Invitation states that the offering is subject to the 48-hour
prospectus delivery requirement set forth in Rule 15c2-8(b), our Acceptance of
the Invitation shall be deemed to constitute confirmation that we have
delivered for we will deliver) a copy of the preliminary prospectus to all
persons to whom we expect tot confirm a sale of Securities and that such
deliver was effected (or will be effected) at least 48 hours prior to the
mailing of such confirmations of sale.
We will keep an accurate record of the names and addresses of all
persons to whom we give copies of the Registration Statement, the Prospectus,
the Offering Circular or any preliminary prospectus or offering circular (or
any amendment or supplement thereto), and, when furnished with any subsequent
amendment to the Registration Statement, any subsequent prospectus or offering
circular or any memorandum outlining changes in the Registration Statement or
any prospectus or offering circular, we will, upon your request, promptly
forward copies thereof to such persons.
Our Acceptance of an Invitation relating to an offering made pursuant
to an Offering Circular shall constitute our agreement that, if requested by
you, we promptly 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, to the extent consistent with such
laws, rules and regulations, our Acceptance shall constitute our confirmation
that we have deliver, and our agreement that we will deliver, all preliminary
and final Offering Circulars which would be required if the provisions of the
Rule 15c2-8 (or any successor provision) under the 1934 Act applied to such
offering.
15. Miscellaneous. Nothing in this Agreement shall constitute us
partners with you or with the Underwriters. Our obligations and the
obligations of be read to make or otherwise each of the other Underwriters are
several and not joint. 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. Default by any Underwriter with respect to the
Underwriting Agreement shall not release us from any of the obligations
thereunder or hereunder.
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 below.
Any notice from you to us shall be deemed to have been given if
mailed, telegraphed, faxed or hand delivered, or telephoned and subsequently
confirmed in writing, to our address appearing below.
6
We confirm that we are a member in good standing of the NASD or that
we are a foreign bank or dealer, not eligible for membership in the NASD. In
making sales of Securities, if we are such a member, we agree to comply with
all applicable rules of the NASD, including, without limitation, the NASD's
Interpretation with Respect to Free-Riding and Withholding and Section 24 of
Article 111 of the NASD's Rules of Fair Practice, or, if we are such a foreign
bank or dealer, we agree to comply with such Interpretation, Sections 8, 24 and
36 of such Article as though we were such a member and Section 25 of such
Article as it applies to a non-member broker or dealer in a foreign country.
If we are a foreign bank or dealer and we are not registered as a
broker-dealer under Section 15 of the 1934 Act, we agree that while we are
acting as an Underwriter with respect to the Securities and in any event
during the term of this Agreement with respect to the offering of the
Securities, we will not directly or indirectly engage in any transactions in
the United States, with nationals or residents of the United States, or with
any other person whereby we would be subject to the jurisdiction of the 1933
Act or 1934 Act (except for the purchases provided for in the Underwriting
Agreement and transactions contemplated by Section 5, 7 and 8 hereof) in (i)
Securities, (ii) Common Stock, if the Securities are Common Stock or securities
of the issuer that may be exchanged for or converted into Common Stock or (iii)
any other securities of the Issuer designated in the Invitation.
If we are a foreign bank or dealer, we represent that in connection
with sales and offers to sell Securities made by us outside the United State
(a) we will not offer or sell any Securities in any jurisdiction except in
compliance with applicable laws and (b) we will either furnish to each person
to whom any such sale or offer is made a copy of the then current preliminary
prospectus or offering circular, if any, of the Prospectus or Offering Circular
(as then amended or supplemented), as the case may be or inform such person
that such preliminary prospectus or offering circular, if any, or Prospectus or
Offering Circular will be available upon request. Any offering material in
addition to the then current preliminary prospectus or offering circular or the
Prospectus or Offering Circular furnished by us to any person in connection
with any offers or sales referred to in the preceding sentence (i) shall be
prepared and so furnished at our sole risk and expense and (ii) shall not
contain information relating to the Securities or the Issuer which is
inconsistent in any respect with the information contained in the then current
preliminary prospectus or offering circular, if any, or in the Prospectus or
Offering Circular (as then amended or supplements), as the case may be. It is
understood that no action has been taken by you or the issuer or any seller of
the Securities to permit a public offering in any jurisdiction other than the
United States where action would be required for such purpose.
We also confirm that our commitment to purchase Securities pursuant to
the Underwriting Agreement will not result in a violation of Rule 15c3-1 under
the 1934 Act or of any similar provisions of any applicable rules of any
securities exchange to which we are subject or of any restriction imposed upon
us by an such exchange or any governmental authority.
We agree that we will notify you immediately of any development before
the termination of this Agreement with respect to the offering of the
Securities which makes untrue or incomplete any information that we have given
or are deemed to have given in response to the Underwriters' Questionnaire.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
7
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.
EVEREN SECURITIES, INC.
By:____________________________________________
8
Exhibit A to Master Agreement Among Underwriters
Unless otherwise defined, capitalized terms used herein have the
meanings assigned thereto in the Master Agreement Among Underwriters dated
April 30, 1991, between EVEREN Securities, Inc. ("EVEREN") and you (such
agreement as amended or supplemented from time to time, being hereinafter
called the "Agreement"). Reference will be made to this Master Underwriters'
Questionnaire in each Invitation described in Section 1 of the Agreement
received by you from EVEREN in connection with offerings of securities in which
EVEREN is acting as representative or the manager of the representatives of the
several Underwriters. Your Acceptance of any such Invitation should respond to
this Master Underwriters' Questionnaire.
(1) Neither you nor any of your directors, officers or partners has a
material relationship (as "Material" is defined in Regulation C under the ▇▇▇▇
▇▇▇) with the Issue, its parent (if any), any other seller of the Securities or
any guarantor of the Securities;
(2) Neither you nor any of your directors, officer or partners,
separately or as a "group" (as that term is defined in Section 13(d)(3) of the
1934 Act), owns of record or beneficially 5% or more of any class of voting
securities of the Issuer, its parent (if any), any other seller of the
Securities or any guarantor of the Securities nor do you have any knowledge
that 5% or more of any class of voting securities of the issuer is held or will
be held subject to any voting trust or other similar agreement;
(3) You have not prepared any report or memorandum for external use in
connection with the proposed offer;
(4) If the Securities are to be issued under an indenture qualified
under the Trust Indenture Act of 1939 (the "1939 Act");
(a) neither you nor any of your directors, officer or partners
is an affiliate (as defined in Rule 0-2(b) under the ▇▇▇▇ ▇▇▇) of the Trustee,
or its parent (if any ) and neither the Trustee nor its parent (if any) nor any
of their directors or executive officers is a director, officer, partner,
employee, appointee or representative of yours as those terms are defined in
the 1939 Act or in the relevant instructions to Form T-1 thereunder;
(b) neither you nor any of your directors, officers or
partners , separately or as a group owns beneficially 1% or more of any class
of voting securities of the Trustee or its parent, if any; and
(c) if you are a corporation, you do not have outstanding nor
have you assumed or guaranteed any securities otherwise than in your corporate
name, and neither the Trustee nor its parent (if any) is a holder of such
securities.
(5) Other than as stated or to be stated in the Agreement, the EVEREN
Securities, Inc. Master Dealer Agreement or the Underwriting Agreement relating
to the proposed Offering, you do not know of or have reason to believe that (a)
there are any discounts or commissions to be allowed or paid to Underwriters or
any other items that would be deemed by the NASD to constitute underwriting
compensation for purposes of the NASD's Rules of Fair Practice, (b) there are
any discounts or commissions to be allowed or paid to dealers, including all
cash, securities, contracts or other considerations to be received by any
dealer in connection with the sale of the Securities, (c) there is an intention
to over-allot or (d) the price of any security may be stabilized to facilitate
the offering of the Securities.
(6) In the case of a Registered Offering where the Registration
Statement is on Form S-1, you have not prepared any engineering, management or
similar reports or memoranda relating to broad aspects of the business,
operations or products of the Issuer, its parent (if any) or any guarantor
within the past 12 months (except for reports solely comprised of
recommendation to buy, sell or hold the securities of the Issuer, its parent
(if any) or any guarantor, unless such recommendations have changed within the
past six months). If any such report or memorandum has been prepared, furnish
to EVEREN (a) three copies thereof and (b) a statement as to the actual or
proposed use, identifying (i) each class of persons (institutional mailing
lists, retail clients, etc.) who have received or will received the report
memorandum, (ii) the number of copies distributed to each such class and (iii)
the period of distribution.
(7) If the Issuer is a public utility, you are not a "holding company
or a "subsidiary company" or an "affiliate" of a "holding company" or of a
"public utility company, " each as defined in the Public Utility Holding
Company Act of 1935.
(8) Neither you nor any of your directors, officers, partners or
"persons associated with" you (as defined in the By-Laws of the NASD) nor, to
your knowledge, any "related person" (defined by the NASD to include counsel,
financial consultants and advisors, finders, members of the selling or
distribution group and any other persons associated with or related to any of
the foregoing) nor any other broker-dealer (a) within the last 18 months have
purchased in private transactions, or intend before, at or within six months
after the commencement of the public offering of the Securities, to purchase in
private transactions, any securities of the Issuer or any subsidiary thereof,
or (2) within the last 12 months had any dealing with the Issuer, any selling
security holder or any subsidiary or controlling person thereof (other than
relating to the proposed Underwriting Agreement) as to which document or
information are required to be field with the NASD pursuant to its Statement of
Policy Concerning Venture Capital and Other Investments by Broker/Dealers Prior
to Public Offerings or its Interpretation with Respect to Review of Corporate
Financing.
(9) You may, in accordance with and pursuant to the financial
responsibility requirements of Rule 15c3-1 under the Exchange Act, agree to
purchase the amount of Securities to be purchased by you.
(10) If the Issuer of the Securities has not had a registration
statement effective under the 1933 Act and does not intend to register any
securities under Section 12 of the 1934 Act, you do not intend to confirm sales
of the Securities to any accounts over which you exercise discretionary
authority.