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EXHIBIT 2(h)(2)
MASTER AGREEMENT AMONG UNDERWRITERS
July 18, 1985
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
Dear Sirs:
We understand that from time to time you may act as
Representative or as one of the Representatives of several underwriters of
offerings of various issuers. This Agreement shall apply to any offering of
securities handled by your Corporate Syndicate Department in which we elect to
act as an underwriter after receipt of an invitation from your Corporate
Syndicate Department which shall identify 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 public offering price, the interest or
dividend rate (or the method by which such rate is to be determined), the
conversion price, the underwriting discount, the management fee, the selling
concession and the reallowance, except that if the public offering price of the
securities is to be determined by a formula based upon the market price of
certain securities (such procedure being hereinafter referred to as "Formula
Pricing"), you 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
Underwriting Agreement (as hereinafter defined) provides for the granting of an
option to
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purchase additional securities to cover over-allotments, you will notify us, in
the Invitation, 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 your Corporation Syndicate Department receives our oral or written
acceptance and does not subsequently 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 Underwriting Agreement does not provide for an
over-allotment option, the securities to be purchased are hereinafter to as the
"Securities," if the Underwriting Agreement provides for an over-allotment
option, the securities the Underwriters (as hereinafter defined) are initially
obligated to purchase pursuant to the Underwriting Agreement 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" or to this
"Representatives" shall mean ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ & Co. 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
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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.
1. UNDERWRITING AGREEMENT; AUTHORITY OF REPRESENTATIVES. We
authorize you to execute and deliver an underwriting of 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 securityholder with respect to the Securities
in such form as you determine. We will be bound by all terms of the Underwriting
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 and the Underwriting Agreement, including the amount of
Additional Securities, if any, which we may become obligated to purchase by
reason of the exercise of any over-allotment option provided in the Underwriting
Agreement, shall not be changed without our consent.
As Representatives of the Underwriters, you are authorized to
take such action as you deem necessary or advisable to carry out this Agreement,
the Underwriting Agreement, and the purchase, sale and distribution of the
Securities, and to agree to any waiver or modification of any provision of the
Underwriting Agreement. The extent applicable, you are also authorized to
determine (i) the amount of Additional Securities, if any, to be purchased by
the Underwriters pursuant to any over-allotment option and (ii) with respect to
offerings using Formula Pricing, the initial public offering price and the price
at which the Securities are to be purchased in accordance with the Underwriting
Agreement. It is understood and agreed that ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
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
Contract"). References herein to delayed delivery and Delayed Delivery Contracts
apply only to offerings to
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which delayed delivery is applicable. The term "underwriting obligation," as
used in this Agreement with respect to any Underwriting, shall refer to the
amount of Securities, including any Additional Securities (plus such additional
Securities as may be required by the Underwriting 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 Underwriting 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 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 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.
2. REGISTRATION STATEMENT AND PROSPECTUS; OFFERING CIRCULAR. In
the case of an Invitation regarding an offer of Securities registered under the
1933 Act (a "Registered Offering"), you will furnish to us, to the extent made
available to you and 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 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
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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
if 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").
3. PUBLIC OFFERING. The sale of the Securities 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 to the public in conformity with the terms of
offering set forth in the Prospectus or Offering Circular, such of the
Securities to be purchased by us ("our Securities") as are not reserved for our
account for sale to Selected Dealers and others pursuant to Section 5. After the
initial public offering, the public 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 public offering price and concession and discount to dealers shall
not apply, and other references in this Section and elsewhere in this Agreement
to the public offering price or Selected Dealers' concession shall be deemed to
mean the prices and concessions determined by you from time to time in your
discretion.
If so directed 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.
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The initial public advertisement with respect to the Securities
shall appear on such date, and shall include the names of such of the
Underwriters, as you may determine. Thereafter, any Underwriter may advertise at
its own expense.
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
of 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 obligations 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 obligation as a result
of Delayed Delivery Contracts.
Upon receiving payment from 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.
5. OFFERING TO SELECTED DEALERS AND OTHERS; MANAGEMENT OF
OFFERING. We authorize you, for our account, to reserve for sale and to sell to
dealers ("Selected Dealers"), among whom any of the Underwriters may be
included, such amount of our Securities as you shall determine. Reservations for
sales to Selected Dealers for our account need not be in proportion to our
under-writing obligation, but sales of Securities reserved for our account for
sale to Selected Dealers shall be made as
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nearly as practicable in the ratio which the amount of Securities reserved for
our account bears to the aggregate amount of Securities reserved for the account
of all Underwriters, as calculated from day to day. The price to Selected
Dealers initially shall be the public offering price less a concession not in
excess of the Selected Dealers concession set forth in the Invitation. Selected
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 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 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 Section 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.
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 our Securities at the public 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 obligations, unless you agree to smaller proportion at our
request.
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At or before the time the Securities are released for sale, you
shall notify us of the amount of our 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 our unsold Securities
as you may designate at the public 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
public 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 public
offering price less a concession not in excess of the concession to Selected
Dealers.
6. REPURCHASE 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
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delivered to us need not be the 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.
7. STABILIZATION AND OVER-ALLOTMENT. In order to facilitate the
distribution of the Securities, we authorize you, in your discretion, to
purchase and sell 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, for long or short account, at such
prices as you may determine, and, in the 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 as 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 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.
At the close of business on any day our net commitment, either for long or short
account, resulting from such purchases or sales (including over-allotments)
shall not exceed 15% (or such other amount as may be 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 any such other securities so
sold or over-allotted for our account, including accrued interest, amortization
of original issue discount or dividend, and we will pay to you on demand the
amount of any losses
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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 thereunder.
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.
8. RULE 10B-6. We represent and agree that in connection with
the offering of Securities we have complied and will comply with the provisions
of Rule 10b-6 under the 1934 Act as they apply to the offering of the
Securities.
9. PAYMENT AND DELIVERY. As 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 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
Incorporated (unless otherwise specified in the Invitation) in an amount equal
to, as you direct, either (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 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, in the
case of Securities which are debt obligations, 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.
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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. If, upon
termination of the provisions of this Agreement specified in Section 16 hereof,
an aggregate of not more than 10% of the Securities remains unsold, you may, in
your discretion, sell such Securities at such prices as you may determine.
If we are a member of The Depository Trust Company or any other
depository or similar facility, you are authorized to make appropriate
arrangements for payment for and/or delivery through its facilities of the
Securities to be purchased by us, or, if we are not a member, settlement may be
made through a correspondent that is a member pursuant to our timely
instructions 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 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.
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 Underwriting 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 proportion as
they may determine.
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
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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 you instruction 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.
12. BLUE SKY QUALIFICATION. 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.
13. MEMBERSHIP IN NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC.:
FOREIGN UNDERWRITERS: 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). We hereby agree to comply with Section 24 of
Article III of the Rules of fair Practice
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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, to comply, as though we were a member of the NASD,
with the provisions of Sections 5 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.
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 sales 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.
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 (or we will deliver) a copy of the preliminary prospectus to all
persons to whom we expect to confirm a sale of Securities and that such delivery
was affected (or will be affected) at least 48 hours prior to the mailing of
such confirmation of sale.
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 of 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
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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 15c2-8 (or any successor provision) under the 1934 Act
applied to such offering.
15. NET CAPITAL. The incurrence by us of our obligations hereunder and
under the Underwriting Agreement in connection with the offering of the
Securities will not place us in violation of the capital requirements of Rule
15c3-1 under the ▇▇▇▇ ▇▇▇.
16. TERMINATION. With respect to each offering of Securities to which
this Agreement applies, 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 B 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.
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 to which this Agreement applies, 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 amount 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 beheld
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)
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of all expenses and liabilities which may be incurred by or for the accounts of
the Underwriters with respect to each offering of Securities to which this
Agreement applies.
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 Underwriting Agreement.
19. CLAIMS AGAINST UNDERWRITERS. With respect to each offering of
Securities to which this Agreement applies, if at any time any person other than
an Underwriter asserts a claim (including any commenced or threatened
investigation or proceeding by any government agency or body) against on or more
of the Underwriters or against you as Representative(s) 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 obligations of all expenses incurred by you
(including the fees and expenses of counsel for the Underwriters) in
investigating and defending against such claim and our proportionate share of
the aggregate liability incurred by all Underwriters in respect of such claim
(after deducting any contribution or indemnification obtained pursuant to the
Underwriting Agreement, or otherwise, from persons other than Underwrites),
whether such liability is the result of a judgment against one or more of the
Underwriters or the result of any 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
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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.
20. DEFAULT BY UNDERWRITERS. Default by any Underwriter in respect of
its obligations hereunder or under the Underwriting Agreement shall not release
us from any of our 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 others, which may include yourselves or other
non-defaulting Underwriters, of all or a portion of the Securities no 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 damage
resulting from its default, nor shall any such default relieve any other
Underwriter of any of its obligations hereunder or under the Underwriting
Agreement except as herein or therein provided. In addition, in the event of
default by one or more Underwriters in respect of their obligations under the
Underwriting Agreement to purchase the Securities agreed to be purchased by them
thereunder and, to the extent that arrangements shall not have been made by you
for any person to assume the obligations of such defaulting Underwriter or
Underwriters, we agree, if provided in the Underwriting Agreement, to assume our
proportionate share, based upon our underwriting obligation, of the obligations
of each defaulting Underwriter without relieving any such defaulting Underwriter
of its liability therefor.
21. LEGAL RESPONSIBILITY. As Representative(s) of the Underwriters, you
shall have no liability to us, except for your lack of good faith and for
obligations
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assumed by you in this Agreement and except that we do not waive any rights that
we may have under the 1933 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 Underwriting 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 agrees not to take any position inconsistent with such election,
and you, as Representative(s), 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 below.
22. NOTICES. Any notices from you shall be deemed to have been duly
given if mailed or transmitted to us at our address appearing below.
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.
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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.
▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
By:___________________________
Managing Director
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EXHIBIT A
MASTER UNDERWRITERS' QUESTIONNAIRE
In connection with each offering of Securities pursuant to the
Smithy Barney, ▇▇▇▇▇▇ ▇▇▇▇▇ & Co. Incorporated Master Agreement Among
Underwriters, dated July 18, 1985 (the "Agreement"), each Underwriter confirms
the following information, except as indicated in such Underwriter's Acceptance
or other written communication furnished to ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ & Co.
Incorporated. Defined terms used herein have the same meaning as defined terms
in the Master Agreement Among Underwriters.
(a) Neither such Underwriter nor any of its directors, officers or
partners have any material (as defined in Regulation C under the ▇▇▇▇ ▇▇▇)
relationship with the Issuer, its parent (if any), any other seller of the
Securities or any guarantor of the Securities.
(b) Except as described or to be described in the Agreement, the
Underwriting Agreement or the Invitation, such Underwriter does not know: (i) of
any discounts or commissions to be allowed or paid to dealers, including all
cash, securities, contracts, or other consideration to be received by any dealer
in connection with the sale of the Securities, or of any other discounts or
commissions to be allowed or paid to the Underwriters or of any other items that
would be deemed by the NASD to constitute underwriting compensation for purposes
of the NASD's Rules of Fair Practice, (ii) of any intention to over-allot, or
(iii) that the price of any security may be stabilized to facilitate the
offering of the Securities.
(c) No report or memorandum has been prepared for external use (i.e.,
outside such Underwriter's organization) by such Underwriter in connection with
the proposed offering of Securities and, in the case of a Registered Offering,
where the Registration Statement is on Form S-1, such Underwriter has not
prepared or had prepared for it any engineering, management or similar report or
memorandum relating to the broad aspects of the business, operations or products
of the Issuer, its parent (if any) or any guarantor of the Securities within the
past twelve months. If any such report or memorandum has been pre-
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pared, furnish to ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇ & Co. Incorporated three copies
thereof, together with a statement as to the distribution of the report or
memorandum, identifying each class of persons to whom the report or memorandum
was distributed, the number of copies distributed to each class and the period
of distribution.
(d) If the Securities are debt securities to be issued under an
indenture to be qualified under the Trust Indenture Act of 1939, neither such
Underwriter nor any of its directors, officers or partners is an "affiliate", as
that term is defined under the Trust Indenture Act of 1939, of the Trustee for
the Securities as specified in the Invitation, or its parent (if any); 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 such Underwriter as those terms are defined in the Trust Indenture Act of
1939 or in the relevant instruction to Form T-1; neither such Underwriter nor
any of its directors, partners or executive officers, separate or as a group,
owns beneficially 1% or more of the shares of any class of voting securities of
the Trustee or of its parent (if any); and if such Underwriter is a corporation,
it does not have outstanding nor has it assumed or guaranteed any securities
issued otherwise than in its present corporate name, and neither the Trustee nor
its parent (if any) is a holder of any such securities.
(e) If the Issuer is a public utility, such Underwriter is not a
"holding company" or a "subsidiary company" or an "affiliate" of a "holding
company" or of a "public utility company", each as defined in the Public Utility
Holding Company Act of 1935.
(f) Neither such Underwriter nor any "group" (as that term is defined
in Section 13(d)(3) of the ▇▇▇▇ ▇▇▇) of which it is a member is the beneficial
owner (determined in accordance with Rule 13d-3 under the ▇▇▇▇ ▇▇▇) of more than
5% 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 does it
have any knowledge that more than 5% of any class of voting securities of the
Issuer is held or to be held subject to any voting trust or other similar
agreement.
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