EXHIBIT(h)(3)
SHEARSON
▇▇▇▇▇▇
BROTHERS
May 15, 1985
Dear Sirs:
From time to time in the future, in connection with underwritten public
offerings of securities in which we act as representative of the underwriters
comprising the underwriting syndicates, you may be invited to become a member of
an underwriting syndicate.
Attached hereto are the basic provisions of the Agreement Among
Underwriters (the "Basic Provisions") that will be applicable to any such
underwritten offering where we are the lead representative and expressly inform
you that such basic provisions are applicable. Acceptance by you by telegram,
telex, Graphic Scanning or telephone call (confirmed immediately in writing) of
an Invitation Telex referred to in the Basic Provisions and/or acceptance by you
of an allotment of securities as set forth in the Terms Telex referred to in the
Basic Provisions shall reconfirm (or, if you have not signed and returned this
letter to us, shall confirm) your acceptance of and agreement to the terms and
conditions set forth in the Basic Provisions, insofar as such terms and
conditions relate to the securities referred to in the Terms Telex, and shall
constitute a binding agreement among yourselves and the other several
Underwriters of such securities. In certain cases the Invitation Telex and the
Terms Telex may be combined in a single communication. Such acceptance will
further constitute your confirmation of the statements made in the Underwriters'
Questionnaire attached as Schedule A to the Basic Provisions unless you advise
us in your acceptance of any exceptions to such questionnaire.
Please acknowledge your agreement to the foregoing procedure by signing
and returning the enclosed duplicate copy of this letter (and the attached Basic
Provisions) to us, attention of ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Syndicate Registration,
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
Very truly yours,
SHEARSON ▇▇▇▇▇▇ BROTHERS INC.
By: _______________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Managing Director
Acknowledged: , 20
_________________________________________
(Underwriter's name, exactly as it should appear
in any Registration Statement or advertisement,
and address, including zip code)
By _______________________________________
(Sign name clearly and print title)
SHEARSON ▇▇▇▇▇▇ BROTHERS INC.
AGREEMENT AMONG UNDERWRITERS
BASIC PROVISIONS FOR OFFERINGS OF SECURITIES
May 15, 1985
These basic provisions (the "Basic Provisions") set forth the general
terms and conditions pursuant to which the several Underwriters will agree among
themselves with reference to proposed purchases severally of Securities (the
"Securities") referred to in an underwriting agreement (the "Underwriting
Agreement") to be executed by the issuer of such Securities (the "Company") and
the selling securityholders, if any (the "Selling Securityholders").
1. Underwriting Arrangements. (a) From time to time, in
connection with public offerings of the Securities by Underwriters to be
represented by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Brothers Inc., either alone or with one or more
other firms (the "Representatives"), the Representatives may invite one or more
Underwriters to become a member of an underwriting syndicate on the terms and
conditions set forth herein. which shall be deemed to include the terms and
conditions set forth in (i) any letter, wire, telex or other written
communication or telephone call (confirmed immediately in writing) to
prospective Underwriters in connection with an invitation to become a member of
an underwriting syndicate (the "Invitation Telex") and (ii) any letter, wire,
telex or other written communication or telephone call (confirmed immediately in
writing) to Underwritten in connection with the terms of any particular public
offering of Securities (the "Terms Telex"), provided that the terms and
conditions set forth herein and therein shall be applicable only to public
offerings with respect to which Shearson ▇▇▇▇▇▇ Brothers Inc. has expressly
informed Underwriters that such terms and conditions shall be applicable. Under
certain circumstances the Invitation Telex and the Terms Telex may be combined
in a single communication, in which case any reference herein to either the
Invitation Telex or the Terms Telex shall refer to such single communication.
Any Invitation Telex, the Terms Telex and these Basic Provisions are together
referred to herein as this "Agreement".
(b) The Terms Telex specifies, with respect to the Underwriter to
whom such Terms Telex is addressed, (i) the amount of the Securities to be
purchased by such Underwriter, the purchase price to be paid by such Underwriter
for the Securities, (ii) the public offering price of the Securities or, if the
initial public offering price is to be determined by a formula based on market
prices, the terms of the formula, (iii) the interest rate, if any, (iv) the
selling, concession, if any, to be allowed to Selected Dealers (as defined in
Section 5(c) hereof), (v) the amount of any reallow to other dealers, (vi) the
Representatives' compensation for managing the offering, (vii) certain
information with respect to the Trustee, if any, and (viii) other matters,
including whether the Underwriting Agreement provides the Underwriters with an
option to purchase additional Securities (the "Option Securities") to cover
over-allotments and whether the Underwriters are authorized to solicit
institutional investors to purchase Securities pursuant to Delayed Delivery
Contracts, certain terms thereof and the Underwriters' compensation therefor.
(c) By its acceptance by telegram, telex, Graphic Scanning, or
telephone call (confirmed immediately in writing) of the Invitation Telex or the
Terms Telex as the case may be, in accordance with the terms thereof and its
acceptance of an allotment of Securities as set forth in the Terms Telex, each
Underwriter agrees that it will purchase, on the terms and conditions set forth
in the Underwriting Agreement, in the Invitation Telex, if any, in the Terms
Telex, in the Prospectus referred to below and herein, the amount of such
Securities set forth in the Underwriting Agreement to be purchased by it.
(d) If acceptance of an Invitation Telex has been received, the
Terms Telex may state that an Underwriter will be deemed to have accepted an
allotment of Securities unless the Syndicate Department of Shearson ▇▇▇▇▇▇
Brothers Inc. receives a telegram, telex or Graphic Scanning prior to the time
specified in the Terms Telex giving notice of such Underwriter's rejection of
its allotment of Securities. Notwithstanding the foregoing, in certain instances
the Representatives may notify the Underwriters that no affirmative acceptance
to either any Invitation Telex or the Terms Telex may be required. In such case.
an Underwriter will be deemed to have accepted an allotment or Securities unless
the Syndicate Department of Shearson ▇▇▇▇▇▇ Brothers Inc. receives a telegram
telex or Graphic Scanning prior to the time specified in the Terms Telex giving
notice of such Underwriter's rejection of its allotment of Securities.
2. Registration Statement and Prospectus. As used in this
Agreement the term "Registration Statement" means the registration statement, as
amended, filed with respect to the Securities under the Securities Act of 1933
(the "Act"), and the terms "Preliminary Prospectus" and "Prospectus" mean any
preliminary prospectus and the prospectus (including any basic prospectus and
prospectus supplement and any documents incorporated by reference) authorized
for use in connection with the offering of the Securities. A conformed copy of
the Registration Statement (excluding exhibits other than the Underwriting
Agreement, any indenture covering the Securities, any computation of the ratio
of earnings to fixed charges, and any computation of per share earnings) and
such number of copies of each Prospectus (and any documents incorporated by
reference in any Prospectus) as may be requested by any Underwriters will be
delivered to it. Each Underwriter hereby consents to being named in any
Prospectus as an underwriter of the amount of Securities specified in the Terms
Telex addressed to such Underwriter.
3. Authority of the Representatives. (a) Each Underwriter
authorizes the Representatives, on such Underwriter's behalf, to negotiate in
their discretion the terms of, and to execute and deliver, the Underwriting
Agreement. Each Underwriter also authorizes the Representatives to exercise, in
their discretion, all authority and discretion vested in the Underwriters or in
the Representatives by the Underwriting Agreement and to take all such action as
the Representatives may believe desirable in order to carry out the Underwriting
Agreement and this Agreement.
(b) Each Underwriter authorizes the Representatives to take such
action as, in their discretion, may be necessary or desirable to effect the sale
and distribution of the Securities, including the right to determine and advise
the Company and Selling Securityholders, if any, of the terms of any proposed
offering, the selling concession to Selected Dealers and the reallowance, if
any, to other dealers. Each Underwriter also authorizes the Representatives to
determine all matters relating to the public advertisement of the offering of
the Securities.
(c) Any action to be taken by the Representatives under this
Agreement may be taken by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Brothers Inc.
4. Authority of the Representatives as to Withdrawing or
Defaulting Underwriter. (a) Until the termination of this Agreement, the
Representatives are authorized to arrange for or agree to the purchase by other
persons, who may include the Representatives and any of the other Underwriters,
of any Securities not taken up by any withdrawing or defaulting Underwriter. In
the event that such arrangements or agreements are made, the respective amounts
of the Securities to be purchased by the other Underwriters and by such other
persons, if any, shall be taken as the basis for all rights and obligations
under this Agreement, but this shall not in any way affect the liability of any
defaulting Underwriter to the other Underwriters (including the Representatives)
for damages resulting from such default, nor shall such default in any way
relieve any other Underwriter of any of its obligations hereunder or under the
Underwriting Agreement, except as herein or therein provided.
(b) In the event of default by one or more Underwriters in respect
of its obligations under this Agreement, including the obligations to take up
and pay for any Securities or Stabilized Securities (as defined in Section 9(a)
hereof) purchased by the Representatives for their respective accounts pursuant
to Section 9 hereof, or to deliver any Securities sold or over-allotted by the
Representatives for their account pursuant to such Section, and to the extent
that arrangements shall not have been made by the Representatives for any person
to assume the obligations or such defaulting Underwriter, each non-defaulting
Underwriter shall assume its proportionate share of the obligations of each
defaulting Underwriter without relieving any such defaulting Underwriter of its
liability therefor.
5. Offering of the Securities. (a) The Representatives will
notify each Underwriter when the initial public offering of the Securities
(subject to reservation by the Representatives as herein provided) is to be
made. The Representatives are authorized, in their discretion, after the initial
public offering to change the public offering price, the selling concession to
Selected Dealers and the reallowance to other dealers. The offering price at any
time in effect is hereinafter referred to as the "public offering price." Each
Underwriter agrees to make, at the initial public offering price, a public
offering of the Securities purchased by it and not reserved by the
Representatives for sale to retail purchasers and dealers.
(b) Each Underwriter agrees that all arrangements for the
solicitation of offers to purchase the Securities under Delayed Delivery
Contracts, if such contracts are authorized pursuant to the Underwriting
Agreement, will be made only through the Representatives and each Underwriter
authorizes the Representatives to act on its behalf in making such arrangements
for the accounts of all Underwriters of or less than all Underwriters and in
such proportions as the Representatives may determine, in their discretion. Any
fee payable to the Representatives for the accounts of the Underwriters under
the Underwriting Agreement with respect to arranging sales of Securities
pursuant to Delayed Delivery Contracts shall be credited to the accounts of the
Underwriters.
(c) Each Underwriter authorizes the Representatives to reserve and
offer for sale such of the Securities to be purchased by such Underwriter
pursuant to the Underwriting Agreement or for its account under any of the
provisions of this Agreement as the Representatives shall
determine (i) to retail purchasers and (ii) to dealers to be selected by the
Representatives (the "Selected Dealers") (A) who are members of the National
Association of Securities Dealers, Inc. (the "NASD") and who will agree to
comply with the requirements of Section 24 of Article III of the Rules of Fair
Practice of the NASD or (B) who are foreign dealers not eligible for membership
in the NASD and who will agree (I) not to make any sales of the Securities in,
or to nationals or residents of, the United States, its territories or its
possessions and (II) in making any sales of the Securities to comply, as though
such foreign dealers were members of the NASD, with (x) the interpretation of
the Board of Governors of the NASD entitled "Free-Riding and Withholding," (y)
the requirements of Sections 8, 24 and 36 of Article III of the Rules of Fair
Practice of the NASD and (z) to the extent applicable to such foreign dealers,
the requirements of Section 25 of such Article III. The sales referred to in
clause (i) shall be made at the public offering price, and the sales referred to
in clause (ii) shall be made at the public offering price less the selling
concession to Selected Dealers. The Representatives may arrange for any
Underwriter, including the Representatives, to become one of such Selected
Dealers, and each Underwriter agrees that it will not offer any of the
Securities for sale at a price below the public offering price or allow any
concession therefrom except as herein, otherwise provided. Sales made by the
Representatives for the account of each Underwriter to Selected Dealers will be
as nearly as practicable in the ratio which the amount of the Securities so
reserved for the account of such Underwriter bears to the aggregate amount of
the Securities so reserved for the account of all Underwriters.
(d) Any such public offering may be made by Representatives
pursuant to the terms and conditions of selling agreements or otherwise, as the
Representatives determine. Each Underwriter authorizes the Representatives to
determine the form and manner of any selling agreements or other communications
with Selected Dealers and, in the event there shall be any such selling
agreements, each Underwriter agrees to be governed by the terms and conditions
of such agreements.
(e) The Representatives, as such, may make purchases and sales of
the Securities from or to any Underwriter or Selected Dealer at the public
offering price less all or any part of the selling concession to Selected
Dealers specified in the Terms Telex. With the Representatives' consent, any
Underwriter may make purchases or sales of the Securities from or to any
Underwriter or Selected Dealer at the public offering price less all or any part
of such selling concession to Selected Dealers.
(f) The Representatives will notify each Underwriter promptly upon
the release of the public offering of the Securities as to the amount of the
Securities reserved for safe to retail purchasers and Selected Dealers, and the
amount of the Securities not so reserved. Any of the Securities not so reserved
may be sold by each Underwriter for its own account. Each Underwriter agrees,
upon the Representatives' request, at any time or times prior to the termination
of this Agreement with respect to the Securities, to report to the
Representatives as to the amount of the Securities not so reserved which then
remain unsold by it and the Representatives may, in their discretion, add to the
Securities reserved for sale to retail purchasers and Selected Dealers any such
unsold Securities.
(g) If all the Securities so reserved are not promptly sold by the
Representatives, any Underwriter may from time to time, with the
Representatives' consent, obtain a release of all or
any Securities of such Underwriter then remaining unsold, and Securities so
released shall thereafter be deemed not to have been reserved. Securities of any
Underwriters so reserved which remain unsold or if sold have not been paid for
at any time prior to the termination or this Agreement with respect to the
Securities may, in the Representatives' discretion or upon the request of such
Underwriter, be delivered to such Underwriter for carrying purposes only, but
such Securities shall remain subject to disposition by the Representatives, in
their discretion, until this Agreement is terminated. If the aggregate amount of
the Securities so reserved upon termination of this Agreement does not exceed
20% of the total amount of the Securities, the Representatives may, in their
discretion, sell for the accounts of the Several Underwriters all or any
Securities so reserved, at such prices, on such terms and in such manner as the
Representatives may determine.
(h) The Representatives may, in their discretion, charge the
account of any Underwriter with an amount equal to the selling concession to
Selected Dealers (plus any broker's commissions and transfer taxes) with respect
to Securities purchased by such Underwriter, or purchased for their account, and
not sold to retail purchasers or Selected Dealers for their account by the
Representatives, which, prior to the termination of this Agreement, the
Representatives may purchase or contract to purchased in the open market or
otherwise, pursuant to this Agreement, for the account of any Underwriter, or
which may be delivered against contracts made prior to the termination of this
Agreement; or in lieu thereof require such Underwriter to repurchase on demand
at the total cost thereof (including commissions and taxes) any of such
Securities so purchased or contracted to be purchased. Securities delivered on
such repurchases need not be the identical Securities originally purchased. In
lieu of so charging the account of any Underwriter or delivering such Securities
to any Underwriter obligated to repurchase the same as aforesaid, the
Representatives may, in their discretion, sell the same for the account of such
Underwriter, publicly or privately, without notice, at such prices and upon such
terms and to such persons, including any of the several Underwriters, as the
Representatives may determine, charging to the Underwriters so obligated the
amount of any loss and expense or crediting to such Underwriter the amount of
any profit less any expense resulting from such sale.
6. Compensation to Representatives. As compensation for the
Representatives' services, each Underwriter agrees to pay the Representatives a
management fee as specified in the Terms Telex (without reduction for any
Securities to be delivered pursuant to any Delayed Delivery Contracts). Such
compensation shall be treated as an expense of each Underwriter and shall be
charged to its account on the books of the Representatives.
7. Payment and Delivery. (a) At or before 9:00 A.M., New York
City time, on the date on which the Underwriters are required to purchase
Securities, such Underwriter agrees to deliver to the Representatives at the
office of Shearson ▇▇▇▇▇▇ Brothers Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (Cashier's Window,
Main Level), New York, N.Y. 10013, or such other address as the Underwriter may
be notified by the Representatives, a certified or official bank check payable
in New York Clearing House funds or, if specified in the Terms Telex,
immediately available funds to the order of Shearson ▇▇▇▇▇▇ Brothers Inc. for an
amount equal to the initial public offering price less the selling concession to
Selected Dealers for the Securities to be purchased by such Underwriter pursuant
to the Underwriting Agreement. The Representatives may, however, advance funds
(to the extent permitted by law) in respect of Securities which have been sold
or reserved for sale to retail purchasers or Selected Dealers for the account of
any Underwriter.
Each Underwriter authorizes the Representatives to make payment to the Company
and the Selling Securityholders, if any, for the Securities to be purchased by
such Underwriter against delivery to the Representatives of certificates for
such Securities for the account of such Underwriter. Unless notified at least
three full business days prior to the date of delivery to make other
arrangements, the Representatives may, in their discretion, advise the Company
and the Selling Securityholders, to prepare each Underwriter's certificates for
the Securities to be purchased by it in the name of such Underwriter (or in such
other name as the Representatives shall designate, but such other name shall be
for administrative convenience only and shall not affect such Underwriter's
title to such Securities or the several nature of the obligations of the
Underwriters hereunder) in such denominations as the Representatives may
determine. The Representatives will give each Underwriter notice of the date of
delivery.
(b) Each Underwriter authorizes the Representatives to hold and
deliver against payment the Securities purchased by such Underwriter or for its
account which have been sold or reserved for sale to retail purchasers or
Selected Dealers, and agrees to endorse such Securities in blank or to deliver
to the Representatives upon their request appropriate powers executed in blank.
The Representatives will remit promptly to each Underwriter an amount equivalent
to the purchase price paid by such Underwriter, and not advanced or borrowed by
the Representatives for securities sold for such Underwriter's account to retail
purchasers or Selected Dealers and for which payment has been received. The
Representatives agree that Securities not sold or reserved by them as aforesaid
will be available for delivery to each Underwriter at the office of Shearson
▇▇▇▇▇▇ Brothers Inc., One Western Union International Plaza (Cashiers'
Department--17th Floor), New York, N.Y. 10004, or such other address as the
Underwriter may be notified by the Representatives, as soon as practicable after
such Securities have been delivered to the Representatives.
(c) If an Underwriter is a member of, or clears through a member
of, The Depository Trust Company ("DTC"), the Representatives may, in their
discretion, deliver such Underwriter's Securities through the facilities of DTC.
8. Authority to Borrow. The Representatives are hereby authorized
(to the extent permitted by law) to arrange such loans for the account of one or
more of the Underwriters, severally and not jointly, to execute and deliver any
notes or other instruments in connection therewith, and to pledge as security
therefor all or any part of the Securities as the Representatives may deem
necessary or advisable to carry out the purchase, carrying and distribution of
the Securities, and to advance their own funds, in their individual capacities,
charging current interest rates. Any lending bank is hereby authorized to rely
upon instructions of the Representatives in all matters relating to any such
loan. The Representatives may deliver to any Underwriter for carrying purposes
such Securities, or any part thereof, which Securities will be redelivered to
the Representatives on demand.
9. Over-Allotments and Stabilization. (a) The Representatives
may, for the account of each Underwriter, until the termination of this
Agreement or earlier surrender of this authorization, (i) over-allot in
arranging for sales of the Securities to retail purchasers and Selected Dealers,
and purchase Securities at such prices as the Representatives may determine for
the purpose of covering such over-allotments, and (ii) for the purpose of
stabilizing the market in the Securities, make purchases and sales of Securities
or other securities of the
Company which the Representatives may designate for purchase or sale in
stabilizing transactions ("Stabilized Securities"), for long or short account,
on a when-issued basis or otherwise, at such prices, in such amounts and in such
manner as the Representatives may determine; provided that at no time shall the
net dollar commitment of any Underwriter either for long or short account, under
this Section 9, exceed (except as otherwise provided in Section 4(b) hereof) 15%
of the amount of the Securities (and the Option Securities, if any) which such
Underwriter is obligated to purchase pursuant to the Underwriting Agreement.
Such purchases, sales, and, over-allotments shall be made for the accounts of
the several Underwriters as nearly as practicable in proportion to the
respective underwriting obligations of such Underwriters. Each Underwriter
agrees to take up at cost on demand any Securities or Stabilized Securities so
purchased for their account and to deliver on demand any thereof so sold or any
Securities so over-allotted for their account.
(b) The Representatives may sell for the account or any
Underwriter any Securities or Stabilized Securities purchased pursuant to the
provisions of this Section 9 upon such terms as the Representatives may deem
advisable and any Underwriter, including the Representatives, may participate as
a purchaser in connection with any such sales. The Representatives shall have
full discretionary power to pay such commissions in connection with such
purchases and sales as they may deem proper and to charge the respective
accounts of the Underwriters commissions on purchases and sales effected by
them.
(c) If stabilizing transactions are effected pursuant to the
authorizations contained in this Section 9, the Representatives shall effect
such transactions in accordance with the rules of the Securities and Exchange
Commission (the "Commission") under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"). and each Underwriter agrees to furnish the
Representatives with the notification required by Rule 17a-2(d) promulgated by
the Commission under the Exchange Act. The Representatives will notify each
Underwriter if they effect any such transactions.
10. Open Market Transactions. Each Underwriter agrees that, except
as herein otherwise provided, until the termination of this Agreement or until
notified by the Representatives prior thereto that such Underwriter is released
from this restriction, it will not buy, sell, deal or trade in the Securities or
Stabilized Securities or, if options to purchase Securities or common stock into
which Securities may be convertible ("Common Stock") are traded on any
securities exchange, buy any right or option to purchase Securities or Common
Stock for their own account or for the accounts of customers except on
unsolicited brokerage orders therefor received and executed in the ordinary
course of their brokerage business. Each Underwriter further agrees that it will
not lend any shares of Common Stock, either before or after the purchase of the
Securities, to any customer, Underwriter, Selected Dealer or to any other
securities broker or dealer. Each Underwriter represents that it has not
participated, since the date on which it was invited by the Representatives to
participate in the offering of Securities, in any transactions prohibited by the
foregoing provisions of this Section 10 and that it has at all times complied
with the provisions of Rule 10b-6 under the Exchange Act applicable to the
offering of the Securities.
11. Allocation of Expenses. Each Underwriter authorizes the
Representatives to charge against such Underwriter's account any and all
expenses incurred by the Representatives,
as such, in connection with the purchase, carrying, offering, sale and
distribution of the Securities for the account of such Underwriter. All expenses
of a general nature paid by the Representatives in connection with the purchase
and sale of the Securities shall be borne by the Underwriters in proportion to
the amount of the Securities which each Underwriter is obligated to purchase
pursuant to the Underwriting Agreement, except that any transfer taxes payable
by reason of sales by the Underwriters shall be charged to the accounts of the
respective Underwriters only to the extent that sales of Securities or
Stabilized Securities are made for such Underwriter's account. In the event of
the default of any Underwriter in carrying out its obligations under this
Agreement, the expenses chargeable to such Underwriter pursuant to this
Agreement and not paid by it, as well as any additional losses or expenses
arising from such default, may be charged against the other Underwriters are
obligated to purchase pursuant to the Underwriting Agreements, without, however,
relieving such Underwriter from its liability therefor. The Representatives'
ascertainment of all expenses and the apportionment thereof shall be conclusive.
12. Termination. This Agreement will terminate at the close of
business on the fifth full day after the date of the Terms Telex unless prior
thereto the Underwriting Agreement shall have been executed and delivered and
shall have become effective, in which event: (a) if there shall be an offering
to Selected Dealers pursuant to the terms of selling agreements, this Agreement
will terminate at the close of business on the fifteenth day after the
termination of the selling agreements, or at such earlier date, not earlier than
the termination of the selling agreements, as the Representatives may determine,
but may be extended for a further period not exceeding thirty days with the
consent of the Underwriters (including the Representatives) who have agreed to
purchase in the aggregate 50% or more of the total amount of the Securities; or
(b) if there shall be no such offering to Selected Dealers, this Agreement will
terminate at the close of business on the thirtieth day after payment by the
Underwriters for the Securities, or at such earlier date as the Representatives
may determine. Notwithstanding any settlement of accounts under this Agreement,
each Underwriter agrees to pay its proportionate share (based on its final total
obligation to purchase Securities pursuant to the Underwriting Agreement) of the
amount of any claim, demand or liability which may be asserted against and
discharged by the Underwriters, or any of them, based on the claim that the
Underwriters constitute an association, unincorporated business or other entity,
and also to pay a like proportionate share of any transfer taxes which may be
assessed after such settlement and of the expenses incurred by the Underwriters,
or any of them, and approved by the Representatives, in contesting any such
claim, demand, liability or tax.
13. Position of Representatives. (a) Except as otherwise
specifically provided in this Agreement, the Representatives shall have full
authority to take such action as they may deem necessary or advisable in respect
of all matters pertaining to the Underwriting Agreement and this Agreement in
connection with the purchase, carrying, offering, sale, distribution and
advertising of the Securities, but they shall not be under any liability
whatsoever to any of the Underwriters except such as may be incurred under the
Act and except for want of good faith and for the obligations expressly assumed
by them in this Agreement. No obligations not expressly assumed by the
Representatives in this Agreement shall be implied hereby or inferred from this
Agreement. Authority with respect to matters to be determined by the
Representatives or by the Representatives, the Company and the Selling
Securityholders, if any, pursuant to the terms of the Underwriting Agreement
shall survive the termination of this Agreement. Nothing
herein contained shall constitute the several Underwriters an association, or
partners with the Representatives or with each other, or, except as in this
Agreement expressly provided, render any Underwriter liable for the obligation
of any other Underwriter, and the rights, obligations and liabilities of each of
the Underwriters are several, in accordance with their respective obligations,
and not joint. If the Underwriters, among themselves or with the Selected
Dealers, are deemed to constitute a partnership for Federal income tax purposes,
it is the intent of each Underwriter to be excluded from the application of
Subchapter K, Chapter 1, Subtitle A, of the Internal Revenue Code of 1954, as
amended. Each Underwriter elects to be so excluded and agrees not to take any
position inconsistent with such election. Each Underwriter authorizes the
Representatives, in their discretion, to execute and file on behalf of the
Underwriters such evidence of election as may be required by the Internal
Revenue Service.
(b) The Representatives shall be under no duty to account for any
interest on funds of any of the Underwriters at any time in their hands, and
such funds may be held by the Representatives unsegregated from their general
funds.
14. Indemnification and Future Claims. (a) Each Underwriter agrees
to indemnify and hold harmless each other Underwriter, and each person, if any,
who controls any such other Underwriter within the meaning of Section 15 of the
Act, to the extent and upon the terms that such Underwriter will agree to
indemnify, hold harmless and reimburse the Company and the Selling
Securityholders, if any, as set forth in the Underwriting Agreement.
(b) In the event that at any time any claim or claims shall be
asserted against the Representatives, as such, or shall otherwise involve the
Underwriters generally, or relate to any Preliminary Prospectus, any Prospectus,
the Registration Statement, the public offering of the Securities, or any of the
transactions contemplated by this Agreement, each Underwriter authorizes the
Representatives to make such investigation, to retain such counsel and to take
such other action as the Representatives shall deem necessary or desirable under
the circumstances, including settlement of any such claim or claims if such
course of action shall be recommended by counsel retained by them. Each
Underwriter agrees to pay to the Representatives, on request, such Underwriter's
proportionate share (based on their final total obligation to purchase
Securities pursuant to the Underwriting Agreement) of all expenses incurred by
the Representatives (including, but not limited to, the fees and disbursements
of counsel retained by them) in investigating and defending against such claim
or claims, and their proportionate share of any liability incurred by the
Representatives in respect of such claim or claims, whether such liability shall
be the result of a judgment against the Representatives or as a result of any
such settlement. A claim against or liability incurred by a person who controls
an Underwriter within the meaning of Section 15 of the Act shall be deemed to
have been made against or incurred by such Underwriter.
(c) The foregoing indemnity agreement shall survive the
termination of this Agreement, and shall remain in full force and effect
regardless of any investigation made by or on behalf of such other Underwriter
or controlling person.
15. Title to Securities. The Securities and Stabilized Securities
purchased by or for the account of each Underwriter pursuant to this Agreement
or the Underwriting Agreement shall remain the property of such Underwriter
until sold, and no title to any such Securities or
Stabilized Securities shall in any event pass to the Representatives, as such,
by virtue of any of the provisions of this Agreement.
16. Blue Sky Matters. It is understood that the Representatives
assume no obligation or responsibility with respect to the right of any
Underwriter or other person to sell the Securities in any jurisdiction,
notwithstanding any information which the Representatives may furnish as to the
jurisdictions under the securities laws of which it is believed the Securities
may be sold.
17. NASD Membership. The Representatives represent that they are
members in good standing of the NASD and each Underwriter represents that it is
either (a) a member in good standing of the NASD or (b) a foreign dealer not
eligible for membership in the NASD, in which event such Underwriter agrees that
it will not sell any of the Securities in, or to nationals or residents of, the
United States, its territories or its possessions, except as required by
Sections 5(c), 5(e), 5(f) and 9 hereof, and that in making any sales of the
Securities it will comply, as though it were a member of the NASD, with (i) the
interpretation of the Board of Governors of the NASD entitled "Free-Riding and
Withholding," (ii) the requirements of Sections 8, 24 and 36 of Article III of
the Rules of Fair Practice of the NASD and (iii) to the extent applicable to it,
the requirements of Section 25 of such Article III.
18. Underwriters' Questionnaire. Each Underwriter represents and
warrants to the Representatives, the Company and the Selling Securityholders, if
any, that the statements made in the Underwriters Questionnaire attached as
Schedule A are (except as otherwise disclosed in writing to the Representatives)
true, correct and complete as of the date of the Terms Telex.
19. Certain Agreements of the Underwriters. Each Underwriter
agrees that:
(a) Such Underwriter will notify the Representatives immediately
if any of the representations of such Underwriter contained in this Agreement
cease to be accurate;
(b) If, immediately prior to the filing of the Registration
Statement, the Company was not subject to the requirements of Section 13(a) or
15(d) of the Exchange Act, such Underwriter (i) will not sell any Securities to
any account over which it exercises discretionary authority and (ii) confirms
that (A) it is familiar with Release No. 4968 under the Act and Rule 15c2-8
under the Exchange Act relating to the distribution of prospectuses for
securities of an issuer which is not subject to the reporting requirements of
Section 13(a) or 15(d) of the Exchange Act, (B) copies of each Preliminary
Prospectus have been or will be distributed to all persons to whom it expects to
mail confirmations of sales, (C) such distribution will be made not less than 48
hours prior to the time that it is expected such confirmations will be mailed,
(D) such distribution will be either made by air mail if the confirmations are
to be sent by air mail, or by such other means of delivery as shall assure that
such Preliminary Prospectuses will be received not less than 48 hours prior to
the time confirmations are received and (E) such Underwriter will otherwise
comply with said Release; and
(c) Such Underwriter will (i) deliver Preliminary Prospectuses,
Prospectuses and other reports required to be delivered under the Act, the
Exchange Act and the rules and regulations under such Acts, including without
limitation Rule 15c2-8 under the Exchange Act, (ii) keep an accurate record of
the names and addresses of all persons to whom it delivers copies
of the Registration Statement, any amendment thereto or any Preliminary
Prospectus or any document incorporated therein by reference, (iii) upon the
request of the Representatives, furnish promptly to the persons who received
copies of the foregoing documents, any subsequent amendment, revised Preliminary
Prospectus, Prospectus, documents incorporated by reference or any memorandum
furnished to the undersigned outlining changes in the Registration Statement or
any Preliminary Prospectus and (iv) deliver a copy of each Prospectus to each
person who purchases any of the Securities from it.
20. Notices. Any notice from the Representatives to any
Underwriter shall be deemed to have been duly given if mailed, telephoned (and
confirmed in writing) or telegraphed to such Underwriter at the address set
forth in the Terms Telex to such Underwriter. Any notice from any Underwriter to
the Representatives shall be deemed to have been duly given if mailed,
telephoned (and confirmed in writing) or telegraphed to Shearson ▇▇▇▇▇▇ Brothers
Inc., American Express Tower, World Financial Center, New York, New York 10013,
Attention: Syndicate Department (or to such other address as the Underwriter may
be notified by the Representatives).
21. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of New York, without giving effect to the
choice of law or conflicts of laws principles thereof.
SCHEDULE A
UNDERWRITERS' QUESTIONNAIRE
n connection with each offering of Securities to which this Agreement
relates, except as disclosed to the Representatives in writing, each Underwriter
advises the Representatives as follows and authorizes the Representatives to use
the information furnished in response to this Underwriters' Questionnaire in the
Registration Statement relating to the Securities:
(a) Neither such Underwriter nor any of its directors,
officers or partners, individually or as a part of a "group" (as that
term is used in Section 13(d)(3) of the Exchange Act), (i) has a
"material" relationship (as defined in Rule 405 under the Act) with the
Company or any Selling Securityholder or (ii) is a director, officer or
holder (of record or beneficially) of 5% or more of any class of voting
securities of the Company or any Selling Securityholder;
(b) With reference to the Interpretation of the Board of
Governors of the NASD with respect to the Review of Corporate
Financing, neither such Underwriter nor any of its "related persons"
(as defined by the NASD) (i) has purchased or otherwise acquired from
the Company any warrants, options or other securities of the Company
within 18 months prior to the date that the Registration Statement was
initially filed or subsequent to that date, and there are no existing
arrangements for any such purchase or (ii) has had any dealings with
the Company (except those with respect to the Underwriting Agreement)
or any "affiliate" of the Company (as defined in Rule 405 under the
Act) as to which documents or other information are required to be
furnished to the NASD pursuant to such Interpretation;
(c) Other than as may be stated in the Registration
Statement, any Prospectus, this Agreement, the Underwriting Agreement
or any selling agreements, such Underwriter does not know of any
discounts or commissions, including any cash, securities, contract or
other consideration to be received by any dealer in connection with the
sale of the Securities, or of any intention to over-allot the
Securities or to stabilize the price of any security to facilitate the
offering of the Securities;
(d) If the Securities are to be issued pursuant to a
trust indenture, such Underwriter is not in control of, controlled by,
or under common control with the Trustee, any other trustee under a
trust indenture relating to securities of the Company and qualified
under the Trust Indenture Act of 1939 (an "Other Trustee") or any of
their respective affiliates, and none of said companies or affiliates,
or any of their respective directors or executive officers, is a
director, officer, partner, employee, appointee or representative of
such Underwriter;
(e) If the Securities are to be issued pursuant to a
trust indenture, such Underwriter and its directors, executive officers
and partners, taken as a group, did not, on the date of the Trustee's
Statement of Eligibility and Qualification on Form T-1, own
beneficially more than 1% of the outstanding voting securities of the
Trustee, the Trustee's parent, any Other Trustee or the parent of any
Other Trustee;
(f) If the Registration Statement is on Form S-1, such
Underwriter has not prepared or had prepared for it within the past 12
months any engineering, management or similar report or memorandum
relating to the broad aspects of the business, operations or products
of the Company, except for reports solely comprised of recommendations
to buy, sell or hold the Company's securities, unless such
recommendations have changed within the past six months;
(g) If the Registration Statement is on either Form S-2
or Form S-3, such Underwriter has not prepared any report or memorandum
for external use by it or by the Company in connection with the
proposed offering of the Securities;
(h) Such Underwriter's proposed commitment to purchase
Securities will not result in a violation by it of the financial
responsibility requirements of Rule 15c3-1 under the Exchange Act;
(i) Such Underwriter is familiar with the rules,
regulations and releases of the Commission dealing with the
dissemination of information prior to and during registration and has
not distributed nor will it distribute any written information outside
of its organization relating to the Company or its securities other
than in accordance with such rules, regulations and releases; and
(j) If the Company 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," each as
defined in the Public Utility Holding Company Act of 1935.