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 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 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
SmithBarney,HarrisUpham &Co.Incorporatedmayact onbehalfofall 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 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 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.
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 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.
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 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 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.
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 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 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 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) 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 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 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.
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
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 prepared, 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.