Exhibit (h)(3)
RBC CAPITAL MARKETS CORPORATION
MASTER AGREEMENT AMONG UNDERWRITERS
July 1, 2004
RBC Capital Markets Corporation
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Ladies and Gentlemen:
1. General. We understand that RBC Capital Markets Corporation is
entering into this Agreement in counterparts with us and other firms who may be
underwriters for issues of securities in which RBC Capital Markets Corporation
is acting as Representative or one of the Representatives of the several
underwriters. This Agreement shall apply to any public offering of securities
pursuant to a registration statement filed under the Securities Act of 1933, as
amended (the "Act"), in which we elect to act as an underwriter after receipt of
an invitation from RBC Capital Markets Corporation including, without
limitation, the identity of the issuer and, if different from the issuer, the
seller or sellers of the securities, the securities proposed to be offered,
whether the underwriters are offered an option to purchase additional securities
to cover over-allotments and, the names of the other Representatives, if any,
and stating that our participation as an underwriter in the proposed offering
shall be subject to the provisions of this Agreement. RBC Capital Markets
Corporation's invitation shall include instructions for our acceptance of such
invitation. At or prior to the time of an offering, RBC Capital Markets
Corporation shall advise us, to the extent applicable, as to the expected
offering date, the expected closing date, the amount of our underwriting
obligation, the initial public offering price, the interest or dividend rate, if
any, and the price to underwriters (including the breakdown of the management
fee, underwriting compensation, selling concession and dealer reallowance). All
of the foregoing information may be conveyed to you in one or more telegrams,
telexes, graphic scanning communications or other form of written communication
(such communications received by us with respect to an offering are hereafter
collectively referred to as the "Invitation").
This Agreement, as amended or supplemented by the Invitation, shall
become binding upon us and the Representatives with respect to such offering if
you receive our written acceptance and you do not receive a written
communication revoking our acceptance prior to the time and date specified in
the Invitation (our unrevoked acceptance after expiration of such time and date
being hereinafter referred to as our "Acceptance"). Our Acceptance may be
conveyed to RBC Capital Markets Corporation by telegram, telex, graphic scanning
communication or other form of written communication. If we have not previously
executed this Agreement, by our Acceptance we shall be deemed to be signatories
hereof with respect to the offering to which the Acceptance relates. To the
extent that any terms contained in the Invitation are inconsistent with any
provisions herein, the terms of the Invitation shall supercede any provisions
herein. Our Acceptance will also constitute our confirmation that, except as
otherwise stated in such
Acceptance, each applicable statement included in the Master Underwriters'
Questionnaire attached as Exhibit A hereto (or otherwise furnished to us) is
correct. We agree to notify you immediately of any development before the
termination of the offering provisions referred to in Section 10(a) hereof with
respect to any particular offering of securities which makes untrue or
incomplete any information that we have given or are deemed to have given in
response to the Master Underwriters' Questionnaire. The obligations of each
underwriter shall be several and not joint. The securities offered in any
offering of securities made pursuant to this Agreement, including any guarantees
relating to such securities or any other securities into which such securities
are convertible or for which such securities are exercisable or exchangeable and
any securities that may be purchased upon exercise of an over-allotment option,
are hereinafter referred to as the "Securities." The issuer or issuers of the
Securities are hereinafter referred to as the "Company." All references herein
to "you" or the "Representatives" shall include RBC Capital Markets Corporation
and the other firms, if any, which are named as Representatives in the
Invitation. Except as otherwise provided in Section 10(c) hereof, the following
provisions of this Agreement shall apply separately to each individual offering
of Securities.
2. Underwriting Arrangements. The Representatives shall determine
which signatories or other parties deemed to be signatories to this Agreement
will be invited to become underwriters for the Securities. Changes may be made
by the Representatives in those who are to be underwriters and in the respective
amounts of Securities to be purchased by them, but the amount of Securities to
be purchased by us as set forth in the Invitation will not be increased without
our consent except as provided in the underwriting agreement (the "Underwriting
Agreement") covering the Securities. We authorize you on our behalf to execute
and deliver the Underwriting Agreement, in such form as you determine and to
take such action as you deem advisable in connection with the performance of the
Underwriting Agreement and this Agreement and the purchase, carrying, sale and
distribution of the Securities. The parties on whose behalf you execute the
Underwriting Agreement are hereinafter referred to as the "Underwriters." You
may waive performance or satisfaction by the Company, any selling security
holders or any other party to the Underwriting Agreement of certain of its or
their obligations or conditions included in the Underwriting Agreement, if in
your judgment such waiver will not have a material adverse effect upon the
interests of the Underwriters. It is understood that, if so specified in the
Invitation for the issue, arrangements may be made for the sale of Securities by
the Company or selling security holders pursuant to delayed delivery contracts.
Such Securities are hereinafter referred to as "Delayed Delivery Securities,"
and such contracts as "Delayed Delivery Contracts." Securities for which such
contracts are not entered into by the Company or selling security holders are
hereinafter referred to as "Immediate Delivery Securities." References here to
delayed delivery and Delayed Delivery Contracts apply only to offerings in which
delayed delivery is authorized. The term "underwriting obligation," as used in
this Agreement with respect to any Underwriter, shall refer to the principal
amount or number of shares or units of the Securities (plus such additional
Securities as may be required by the Underwriting Agreement to be purchased by
such Underwriter 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 are entered into by the Company.
As compensation for your services we will pay a management fee as
specified in the Invitation for the offering (without deduction in respect of
Delayed Delivery Securities), and you may charge our account therefore. If there
is more than one Representative, such compensation will be divided among the
Representatives in such proportions as they determine.
3. Prospectus and Registration Statement. You will furnish to us (or
make available for our review in your office), to the extent made available to
you by the Company, a copy of the registration statement or statements filed
with the Securities and Exchange Commission (the "Commission") with respect to
the Securities (other than any documents incorporated therein by reference and
any exhibits) and any amendments thereto. You will furnish to us, as soon as
practicable after sufficient quantities thereof are made available to you by the
Company, copies of the prospectus, supplemented prospectus or term sheet
(excluding any documents incorporated by reference therein) to be used in
connection with the offering of the Securities. As used herein "Prospectus"
means the form of prospectus (including any term sheet, supplements and any
documents incorporated by reference therein) authorized for use in connection
with such Offering, and "Registration Statement" means the registration
statement, as amended and including any documents incorporated by reference
therein, under which the offer and sale of the Securities are registered under
the Act.
We understand that we are not authorized to give any information or
make any representation not contained in the Prospectus, as amended or
supplemented, or in any document incorporated by reference therein in connection
with the offering of the Securities. Our Acceptance of an Invitation shall
constitute our agreement that, if requested by you, we will furnish a copy of
any amendment, supplement or term sheet to any preliminary or final Prospectus
to each person to whom we have furnished a previous preliminary or final
Prospectus. Our Acceptance of an Invitation relating to an offering of
Securities shall constitute our acknowledgment that we are familiar with the
Registration Statement, including the documents incorporated by reference
therein, the form of Underwriting Agreement and the form of indenture, if any,
or other documents describing the terms of the Securities, filed as exhibits to
the Registration Statement or otherwise made available to us, and with any
preliminary prospectus, preliminary supplemental prospectus or prospectus
relating to the Securities theretofore filed with the Commission. Our Acceptance
of an Invitation relating to an offering of Securities shall also constitute our
consent to being named in the Prospectus as one of the Underwriters of the
Securities. You are authorized, with approval of counsel for the Underwriters,
to approve on our behalf any amendments, supplements or term sheet to the
Registration Statement or in the Prospectus. Our Acceptance of an Invitation
shall also constitute our confirmation that we have delivered, and our agreement
that we will deliver, all preliminary and final Prospectuses required for
compliance with Rule 15c2-8 (or any successor provision) under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"). We agree to keep an
accurate record of the distribution (including dates and number of copies) by us
of copies of the Registration Statement, the Prospectus or any preliminary
prospectus (or any amendment, supplement or term sheet to any thereof), and
promptly upon request by you, to bring all subsequent changes to the attention
of anyone to whom such materials shall have been
distributed. We agree that, if we are advised by you that the Company was not,
immediately prior to the filing of the Registration Statement, subject to the
requirements of Section 13(a) or 15(d) of the Exchange Act, we will not sell any
of the Securities to persons over whose account we exercise discretionary
authority without their specific advance consent.
4. Public Offering. (a) In connection with the public offering of the
Securities, we authorize you, in your discretion, to determine the time of the
initial public offering, to determine the amount of Securities, if any, to be
purchased by the Underwriters pursuant to any over-allotment option, to change
the initial public offering price and the concessions and discounts to dealers
after the initial public offering, to furnish the Company with the information
to be included in the Registration Statement with respect to the terms of
offering, and to determine all matters relating to advertising and
communications with dealers or others.
We authorize you (i) to reserve for sale and to sell to (A)
institutions and retail investors, and (B) dealers selected by you ("Selected
Dealers"), and (ii) to reserve for sale pursuant to Delayed Delivery Contracts
arranged by you through Selected Dealers, all or any part of the Securities to
be purchased by us, as you determine. Any such sale to Selected Dealers may be
made pursuant to the terms and conditions of your Master Selected Dealers
Agreement or otherwise, as you may determine. Each Selected Dealer shall be a
person (a "Dealer") who is a broker or dealer (as defined in the By-Laws of the
National Association of Securities Dealers, Inc. (the "NASD")) actually engaged
in the investment banking or securities business and (i) a member in good
standing of the NASD that makes the representations and agreements applicable to
such a member contained in Section 17 hereof or (ii) a foreign broker, dealer or
other institution not eligible for membership in the NASD that makes the
representations and agreements applicable to such foreign institutions contained
in Section 17 hereof. You may arrange for any Underwriter, including the
Representatives, to become one of the Selected Dealers. Reservations for sales
to institutions and retail investors and for sales pursuant to Delayed Delivery
Contracts for our account are to be as nearly as practicable in proportion to
our underwriting obligation, except for such sales for our account as designated
by an institution or retail customer. Reservations for sales to Selected Dealers
for our account need not be in proportion to our underwriting obligation, but
sales of Securities reserved for our account for sale to Selected Dealers shall
be made as nearly as practicable in the ratio which the amount of Securities
reserved for our account bears to the aggregate amount of Securities reserved
for the account of all Underwriters, as calculated from day to day. 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
and the price to institutions and retail investors shall be the public offering
price. With your consent, the Underwriters may allow, and Selected Dealers may
re-allow, a discount on sales to Dealers 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, in your discretion, to buy Immediate Delivery
Securities for our account from Selected Dealers at the public offering price
less such amount not in excess of the Selected Dealers' concession as you
determine.
At or before the time the Securities are released for sale, you shall
notify us of the amount of Securities that has not been reserved for our account
for sale to Selected Dealers and for sale pursuant to Delayed Delivery Contracts
and the amount that is to be retained by us for direct sale. After advice from
you that the Securities are released for public offering, we will offer to the
public in conformity with the terms of the offering set forth in the Prospectus
such of our Securities as you advise are not reserved.
We will from time to time, upon your request, report to you the amount
of Securities retained by us for direct sale that remains unsold. Upon your
request, we will deliver to you for our account, or sell to you for the account
of one or more of the Underwriters, such amount of unsold Securities as you may
designate at the public offering price less, in the case of sales or deliveries
for the account of Selected Dealers, 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
other Underwriters, at the public offering price less, in the case of purchases
for the account of Selected Dealers, an amount determined by you not in excess
of 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 pursuant to Delayed Delivery Contracts or for sale to, but not
purchased and paid for by, Selected Dealers, all as above provided; however, 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.
If, in accordance with the terms of the offering set forth in the
Prospectus, 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 of the first paragraph of this Section
relating to your right to change the public offering price and concessions and
discounts 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.
Any Securities sold or loaned by us (otherwise than through you) which
you purchase in the open market for the account of any Underwriter will be
repurchased by us on demand at the cost of such purchase plus commissions and
taxes on redelivery. Securities delivered on such repurchase need not be the
identical Securities so purchased. In lieu of such action you may in your
discretion sell for our account the Securities so purchased and debit or credit
our account for the loss or profit resulting from such sale, or charge our
account with an amount not in excess of the Selected Dealers' concession with
respect to such Securities.
(b) Delayed Delivery Arrangements. We authorize you to act on our
behalf in making all arrangements for the solicitation of offers to purchase
Delayed Delivery Securities from the Company pursuant to Delayed Delivery
Contracts and we agree that all such arrangements will be made only through you,
directly or through Selected Dealers (including Underwriters acting as Selected
Dealers) to whom you may pay a commission as provided in the Prospectus and
herein.
The obligation of each of the Underwriters to purchase and pay for
Securities as set forth in the Underwriting Agreement shall be reduced in the
proportion provided for therein, except that (i) as to any Delayed Delivery
Contract determined by you, in your discretion, to have been directed and
allocated by a purchaser to a particular Underwriter, such obligation of such
Underwriter shall be reduced by the amount of Delayed Delivery Securities
covered thereby, (ii) as to any Delayed Delivery Contracts for which
arrangements are made through Selected Dealers, such obligation of each
Underwriter shall be reduced as nearly as practicable in the proportion
determined by you that the amount of Securities of such Underwriter reserved and
sold pursuant to Delayed Delivery Contracts arranged through Selected Dealers
bears to the total Securities so reserved and sold, and (iii) such reductions
shall be rounded, as you shall determine, to the nearest $1,000 principal amount
or whole share or unit of the Securities.
The fee payable by the Company to each Underwriter with respect to
Delayed Delivery Securities pursuant to the Underwriting Agreement shall be
credited to the account of such Underwriter based upon the amount by which such
Underwriter's underwriting obligation is reduced as specified in the preceding
paragraph.
If the amount of Delayed Delivery Securities applied to reduce an
Underwriter's underwriting obligation and the amount of Immediate Delivery
Securities sold by or for the account of such Underwriter exceeds such
Underwriter's underwriting obligation, there shall be credited to such
Underwriter with respect to such excess amount of Securities only the amount of
the Selected Dealers' concession.
The commissions payable to Selected Dealers in respect of Delayed
Delivery Contracts arranged through them shall be charged to each Underwriter in
the proportion which the amount of Securities of such Underwriter reserved and
sold pursuant to Delayed Delivery Contracts arranged through Selected Dealers
bears to the total Securities so reserved and sold.
5. Payment and Delivery. We authorize you to make payment on our
behalf to the Company or any selling security holder of the purchase price of
our Securities, to take delivery of our Securities, registered as you may direct
in order to facilitate deliveries, and to deliver our reserved Securities
against sales. At your request we will pay you an amount equal to the public
offering price, less the selling concession, of either our Securities or our
unreserved Securities as you direct, and such payment will be credited to our
account and applied to the payment of the purchase price. Such payment shall be
made in the form and at the time and places as may be specified in such request.
After you receive payment for reserved
Securities sold for our account, you will remit to us the purchase price (if
any) paid by us for such Securities and credit or debit our account with the
difference between the sale prices and the purchase price thereof. You will
deliver to us our unreserved Securities promptly, and our reserved but unsold
Securities, against payment of the purchase price therefor (except, in the case
of Securities for which payment has previously been made), as soon as
practicable after the termination of the provisions referred to in Section 10(a)
hereof, except that if the aggregate amount of reserved but unsold Securities
upon such termination does not exceed 15% of the total amount of the Securities,
you may in your discretion sell such reserved but unsold Securities for the
accounts of the several Underwriters as soon as practicable after such
termination, at such prices and in such manner as you determine.
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.
Notwithstanding the foregoing provisions of this Section, if
transactions in the Securities can be settled through the facilities of The
Depository Trust Company or any other depository or similar facility, if we are
a member, you are authorized, in your discretion, to make appropriate
arrangements for payment 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.
6. Authority to Borrow. In connection with the purchase or carrying of
our Securities or other securities purchased for our account, we authorize you,
in your discretion, to advance your funds for our account, charging current
interest rates, to arrange loans for our account, and in connection therewith to
execute and deliver any notes or other instruments and hold or pledge as
security any of our Securities or such other securities. Any lender may rely
upon your instructions in all matters relating to any such loan. Any Securities
or such other securities held by you for our account may be delivered to us for
carrying purposes, and if so delivered will be redelivered to you upon demand.
7. Stabilization and Over-Allotment. We authorize you, in your
discretion, to make purchases and sales of Securities, any other securities of
the Company of the same class and series and any other securities of the Company
which you may designate in the open market or otherwise, for long or short
account, on such terms as you deem advisable, and to over-allot in arranging
sales. Such purchases and sales and over-allotments will be made for the
accounts of the Underwriters as nearly as practicable in proportion to their
respective underwriting obligations. It is understood that you may have made
purchases of securities of the Company for stabilizing purposes prior to the
time when we become one of the Underwriters, and we agree that any securities so
purchased shall be treated as having been purchased for the respective accounts
of the Underwriters pursuant to the foregoing authorization. We authorize you,
in your discretion, to cover any short position incurred pursuant to this
Section by purchasing securities on such terms as you deem advisable. Except as
provided in this Section, at no time will our net commitment under the foregoing
provisions of this Section exceed 15%
of our underwriting obligation, excluding Securities which may be purchased upon
exercise of an over-allotment option. In the case of our net commitment for
short account, our net commitment will be computed assuming that all Securities
which may be purchased upon exercise of an over-allotment option are acquired.
We will on demand take up at cost, including accrued interest or dividends and
amortization of original issue discount, if any, any securities so purchased and
deliver any securities so sold or over-allotted for our account, and, if any
other Underwriter defaults in its corresponding obligation, we will assume our
proportionate share of such obligation without relieving the defaulting
Underwriter from liability. Upon request, we will advise you of the Securities
retained by us and unsold and will sell to you for the account of one or more of
the Underwriters such of our unsold Securities and at such price, not less than
the net price to Selected Dealers nor more than the public offering price, as
you determine. We understand that the existence of this provision is no
assurance that the price of the Securities will be stabilized or that
stabilizing, if commenced, may not be discontinued at any time. If you effect
stabilizing purchases pursuant to this Section, you will notify us promptly of
the initiation and termination thereof.
8. Open Market Transactions. We and you agree not to bid for,
purchase, attempt to induce others to purchase, or sell directly or indirectly,
any Securities, any other securities of the Company of the same class and series
and any other securities of the Company which you may designate, except as
brokers pursuant to unsolicited orders and as otherwise provided in this
Agreement and the Underwriting Agreement. If the Securities are or include
common stock or securities convertible into common stock, we and you also agree
not to effect, or attempt to induce others to effect, directly or indirectly,
any transactions in or relating to put or call on any stock of the Company,
except to the extent permitted by Regulation M under the Exchange Act as
interpreted by the Commission. We represent that we have at all times complied
with and will at all times comply with the provisions of Regulation M under the
Exchange Act applicable to any offering of Securities.
9. Net Capital. We represent that the incurrence by us of our
obligations hereunder and under the Underwriting Agreement in connection with
the offering of the Securities will not result in a violation of Rule 15c3-1
under the Exchange Act, or of any similar provisions of any applicable rules of
any securities exchange to which we are subject or of any restriction imposed on
us by any such exchange or any governmental authority.
10. Termination; Amendment. (a) The provisions of (i) the second
sentence of the fourth paragraph of Section 4(a) hereof, (ii) the last paragraph
of Section 4(a) hereof, (iii) the first sentence of Section 7 hereof, and (iv)
Section 8 hereof (collectively, the "offering provisions") will terminate at the
close of business on the 45th day after the date the Securities are released for
sale by you by notice to the Underwriters or at the close of business on the day
of the closing of the purchase of the Securities by the Underwriters pursuant to
the Underwriting Agreement, whichever is later, unless in either such case the
effectiveness of such offering provisions is extended or sooner terminated as
hereinafter provided. You may extend the effectiveness of such offering
provisions up to an additional 15 days by notice to us to the effect that the
offering provisions of this Agreement are extended to the date or by the number
of days
indicated in the notice. You may terminate such offering provisions other than
the last paragraph of Section 4(a) hereof at any time by notice to us to the
effect that the offering provisions of this Agreement are terminated and you may
terminate the provisions of the last paragraph of Section 4(a) hereof at any
time at or subsequent to the termination of the other offering provisions by
notice to us to the effect that the penalty bid provisions of this Agreement are
terminated. All other provisions of the Agreement shall remain operative and in
full force and effect with respect to such offering.
(b) This Agreement may be terminated by either party hereto upon five
business days' written notice to the other party; provided, however, that with
respect to any particular offering of Securities, if you receive any such notice
from us after our Acceptance for such offering, this Agreement shall remain in
full force and effect as to such offering and shall terminate with respect to
such offering and all previous offerings only in accordance with and to the
extent provided in subsection (a) of this Section.
(c) This Agreement may be supplemented or amended by you by notice to
us by written communication and, except for supplements or amendments set forth
in an Invitation, any such supplement or amendment to this Agreement shall be
effective with respect to any offering to which this Agreement applies after the
date of such supplement or amendment. Each reference to "this Agreement" herein
shall, as appropriate, be to this Agreement as so supplemented and amended.
11. Expenses and Settlement. Except as otherwise provided herein, you
may charge our account with any transfer taxes on sales made by you of
Securities purchased by us under the Underwriting Agreement and with our
proportionate share (based upon our underwriting obligation) of all other
expenses incurred by you under this Agreement or in connection with the
purchase, carrying, sale or distribution of the Securities. The accounts
hereunder will be settled as promptly as practicable after the termination of
the offering provisions referred to in the first sentence of Section 10(a)
hereof, but you may reserve such amount as you deem advisable for additional
expenses. Your determination of the amount to be paid to our by us will be
conclusive. You may at any time make partial distributions of credit balances or
call for payment of debit balances. Any of our funds in your hands may be held
with your general funds without accountability for interest. Notwithstanding any
settlement, we will remain liable for any taxes on transfers for our account,
and for our proportionate share (based upon our underwriting obligation) of all
expenses and liabilities which may be incurred by or for the accounts of the
Underwriters.
12. Default by Underwriters. Default by one or more Underwriters
hereunder or under the Underwriting Agreement will not release the other
Underwriters from their obligations or affect the liability of any defaulting
Underwriter to the other Underwriters for damages resulting from such default.
If one or more Underwriters default under the Underwriting Agreement, you may
arrange for the purchase by others, including non-defaulting Underwriters, of
Securities not taken up by the defaulting Underwriter or Underwriters.
13. Position of Representatives. You will be under no liability to us
for any act or omission except for obligations expressly assumed by you herein,
and no obligations on your part will be implied hereby or inferred herefrom.
Your authority hereunder and under the Underwriting Agreement may be exercised
by you jointly or by RBC Capital Markets Corporation. The rights and liabilities
of the Underwriters are several in accordance with their respective underwriting
obligations and not joint, and nothing will constitute the Underwriters a
partnership, association or separate entity.
If for Federal income tax purposes the Underwriters should be deemed
to constitute a partnership then each Underwriter elects to be excluded from the
application of Subchapter K, Chapter 1, Subtitle A, of the Internal Revenue Code
of 1986, as amended. You, as Representatives of the several Underwriters, 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.
14. Indemnification. We will indemnify and hold harmless each other
Underwriter and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Act to the extent and upon the terms upon which
each Underwriter agrees to indemnify the Company, any selling security holders
and certain other persons in the Underwriting Agreement.
15. Contribution. Each Underwriter (including you) will pay upon your
request, as contribution, its proportionate share, based upon its underwriting
obligation, of any losses, claims, damages or liabilities, joint or several,
paid or incurred by any Underwriter to any person other than an Underwriter,
arising out of or based upon any untrue statement or alleged untrue statement of
any material fact contained in the Prospectus, any amendment, supplement or term
sheet thereto or any related preliminary Prospectus or any other selling or
advertising material approved by you for use by the Underwriters in connection
with the sale of the Securities, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading (other than an untrue statement or alleged
untrue statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Company by an Underwriter
through you specifically for use therein); and will pay such proportionate share
of any legal or other expenses reasonably incurred by you or with your consent
in connection with investigating or defending any such loss, claim, damage or
liability, or any action in respect thereof. In determining the amount of any
Underwriter's obligation under this Section, appropriate adjustment may be made
by you to reflect any amounts received by any one or more Underwriters in
respect of such claim from the Company, any selling security holder or any other
person (other than an Underwriter) pursuant to the Underwriting Agreement or
otherwise. There shall be credited against any amount paid or payable by us
pursuant to this Section any loss, damage, liability or expense which is
incurred by us as a result of any such claim asserted against us, and if such
loss, claim, damage, liability or expense is incurred by us subsequent to any
payment by us pursuant to this Section, appropriate provision shall be made to
effect such credit, by refund or otherwise. If any such claim is asserted, you
may take such action in connection therewith as you deem necessary
or desirable, including retention of counsel for the Underwriters, and in your
discretion separate counsel for any particular Underwriter or group of
Underwriters, and the fees and disbursements of any counsel so retained by you
shall be included in the amounts payable pursuant to this Section. In
determining amounts payable pursuant to this Section, any loss, claim, damage,
liability or expense incurred by any person controlling any Underwriter within
the meaning of Section 15 of the Act which has been incurred by reason of such
control relationship shall be deemed to have been incurred by such Underwriter.
Any Underwriter may elect to retain at its own expense its own counsel. You may
settle or consent to the settlement of any such claim, on advice of counsel
retained by you. Whenever you receive notice of the assertion of any claim to
which the provisions of this Section would be applicable, you will give prompt
notice thereof to each Underwriter. We will cooperate with you and counsel
retained by you in investigating and defending against such claim or claims and
will make available all relevant records, and documents and appropriate
personnel. If any Underwriter or Underwriters default in their obligation to
make any payments under this Section, each non-defaulting Underwriter shall be
obligated to pay its proportionate share of all defaulted payments, based upon
such Underwriter's underwriting obligation as related to the underwriting
obligations of all non-defaulting Underwriters, without, however, relieving such
defaulting Underwriter from its liability therefor.
16. Reports and Blue Sky Matters. We authorize you to file with the
Commission and any other governmental agency any reports required in connection
with any transactions effected by you for our account pursuant to this
Agreement, and we will furnish any information needed for such reports. We agree
to transmit to you for filing with the Commission any report required to be made
by us pursuant to the Exchange Act as a result of any transactions effected in
connection with the offering of the Securities. You will not have any
responsibility with respect to the right of any Underwriter or other person to
sell the Securities in any jurisdiction, notwithstanding any information you may
furnish in that connection. We authorize you to file on our behalf with the NASD
such documents and information, if any, which are available or have been
furnished to you for filing pursuant to applicable rules, statements and
interpretations of the NASD, and we will, upon request, promptly furnish you
with any information required to be furnished to the NASD.
17. NASD Matters. You represent that you are a member in good standing
of the NASD, and we represent that we are actually engaged in the investment
banking or securities business and are either (a) a member in good standing of
the NASD, or (b) a foreign broker, dealer or other institution not eligible for
membership in the NASD. If we are such a member we agree that in making sales of
the Securities we will comply with all applicable rules of the NASD, including,
without limitation, Rule 2740 of the NASD's Conduct Rules. If we are not an NASD
member, we agree to comply as though we were a member with Rules 2730, 2740,2750
and 2790 of the NASD's Conduct Rules. If we are such a foreign broker, dealer or
other institution, we agree not to offer or sell any Securities in the United
States of America except through you and in making sales of Securities we agree
to comply with Rule 2420 of the NASD's Conduct Rules as it applies to a
nonmember broker or dealer in a foreign country.
18. Notices. Any notices from you to us shall be deemed to have been
duly given if mailed, hand-delivered, telephoned (and confirmed in writing),
telegraphed, telexed, telecopied or communicated by graphic scanning to us at
the address set forth at the foot of this Agreement, or at such other address as
we shall have advised you in writing. Any notice from us to you shall be deemed
to have been duly given if mailed, hand-delivered, telephoned (and confirmed in
writing), telegraphed, telexed, telecopied or communicated by graphic scanning
to:
RBC Capital Markets Corporation
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: Syndicate Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(or to such other address, telephone, telecopy or telex as we shall be notified
by you). Communications by telegram, telex, telecopy, graphic scanning or other
written form shall be deemed to be "written" communications.
19. Governing Laws. This agreement shall be governed by, and construed
in accordance with, the laws of the State of New York, without regard to
principles of conflicts of laws thereof.
Very truly yours,
----------------------------------------
(Name of Firm)
By:
---------------------------------
Print Name:
-------------------------
Title:
------------------------------
Address:
----------------------------
Telephone:
--------------------------
Fax:
--------------------------------
Confirmed, as of the date first above written
RBC CAPITAL MARKETS CORPORATION
By
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▇▇▇ ▇▇▇▇▇, Managing Director
EXHIBIT A TO MASTER
AGREEMENT AMONG UNDERWRITERS
RBC CAPITAL MARKETS CORPORATION
MASTER UNDERWRITERS' QUESTIONNAIRE
In connection with an offering covered by RBC Capital Markets Corporation's
Master Agreement Among Underwriters dated July 1, 2004, we confirm that except
as set forth in our acceptance of an invitation to participate in such offering
or other communication furnished to RBC Capital Markets Corporation prior to the
effectiveness of our commitment to purchase:
(1) Neither we nor any of our directors, officers or partners have a
material (as material is defined in Regulation C under the Securities Act of
1933, as amended (the "Act")) relationship with the Company.
(2) Neither we nor any "group" (as that term is used in Section
13(d)(3) of the Securities Exchange Act of 1934 ("Exchange Act")) of which we
are a member is the beneficial owner (determined in accordance with Rule 13d-3
under the Exchange Act) of more than 5% of any class of voting securities of the
Company, nor do we have any knowledge that more than 5% of any class of voting
securities of the Company is held or to be held subject to any voting trust or
other similar agreement.
(3) Except as described in the Registration Statement, any Prospectus,
the Master Agreement Among Underwriters, the Underwriting Agreement and the
invitation to participate in the offering, we do not know 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.
(4) We have not prepared any report or memorandum for external use in
connection with the proposed offering. (If there are any exceptions, furnish
four (4) copies of each report and memorandum and identify each class of person
who received such material and the number of copies distributed to each such
class.)
(5) If the offer and sale of the securities are to be registered under
the Securities Act of 1933 pursuant to a Registration Statement on Form S-1, we
have not within the past twelve months prepared or had prepared for us any
engineering, management or similar report or memorandum relating to broad
aspects of the business, operations or products of the
Company. (The immediately preceding sentence does not apply to reports solely
comprised of recommendations to buy, sell or hold the Company's securities,
unless such recommendations have changed within the past six months or to
information already contained in documents filed with the Securities and
Exchange Commission. If there are any exceptions, furnish four (4) copies of
each report and memorandum and identify each class of persons who received such
material and the number of copies distributed to each such class.)
(6) Neither we nor any of our directors, officers, partners or
"persons associated with" us (as defined in the By-Laws of the National
Association of Securities Dealers, Inc. ("NASD")) nor, to our knowledge, any
"related person" (defined by the NASD to include counsel, financial consultants
and advisors, finders, members of the selling or distribution group and any
other persons associated with or related to any of the foregoing) or any other
broker-dealer, (a) within the last 12 months have purchased in private
transactions any securities of the Company or any Company Related Party (as
hereinafter defined), (b) within the last 12 months had any dealings with the
Company, any selling security holder or any subsidiary or controlling person
thereof (other than relating to the proposed Underwriting Agreement) as to which
documents or information are required to be filed with the NASD pursuant to its
Corporate Financing Rule or (c) during the 12 months immediately preceding the
filing of the registration statement, have entered into any arrangement which
provided for the receipt of any item of value (including, but not limited to,
cash payments and expense reimbursements) and/or the transfer of any warrants,
options or other securities from the Company or any Company Related Party to us
or any related person.
(7) There is no association or affiliation between us and (a) any
officer or director of the Company or any Company Related Party or (b) any
security holder of any class of securities of the Company or any Company Related
Party. The Term "Company Related Party" shall mean any selling security holder
offering securities to the public, any affiliate of the Company or any selling
security holder, and the officers or general partners, directors, employees and
security holders thereof.
(8) If the Securities are to be issued pursuant to a trust indenture,
we are not an affiliate (as defined in Rule 0-2 under the Trust Indenture Act of
1939) of the Trustee for the Securities or of 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 ours
(as those terms are defined in the Trust Indenture Act of 1939 or in the
relevant instructions to Form T-1). We and our directors, partners, and
executive officers, taken as a group, did not on the date specified in the
Invitation Telex, and do not, own beneficially 1% or more of the shares of any
class of voting securities of the Trustee or of its parent, if any. If we are a
corporation, we do not have outstanding and have not assumed or guaranteed any
securities issued otherwise than in our present corporate name.
(9) If the issuer is a public utility, we are not a "holding company"
or a "subsidiary company" or an "affiliate" of a "holding company" or of a
"public utility company", each as defined in the Public Utility Holding Company
Act of 1935.