EXHIBIT 1(b)
MASTER AGREEMENT AMONG UNDERWRITERS
December __, 1997
Dear Sirs:
On or after the date hereof we may invite you to participate
as an underwriter in connection with one or more public offerings of securities
in which we are serving as sole or lead representative of the underwriting
syndicates. This Agreement will confirm our mutual agreement to the following
general terms and conditions applicable to your participation in any such
underwriting syndicate.
1. Applicability of this Agreement; Invitation and Acceptance.
From time to time on or after the date hereof we may be responsible for managing
or otherwise implementing the sale of securities offered publicly pursuant to a
registration statement filed under the Securities Act of 1933, as amended (the
"Securities Act"), or offered pursuant to an exemption from registration
thereunder. The terms and conditions of this Agreement shall be applicable to
any such offering in which we have invited you to participate as an underwriter
and have expressly informed you that the terms and conditions of this Agreement
shall apply. This Agreement shall not apply to any offering of securities
effected wholly outside the United States of America. Any offering to which the
terms and conditions of this Agreement apply is herein referred to as an
"Offering", and the securities offered in an Offering, including any
Over-Allotment Securities (as hereinafter defined), are herein referred to as
the "Securities" with respect to such Offering.
We shall invite you to participate in an Offering and in
connection therewith shall advise you of:
(a) the principal terms of the Securities;
(b) the names of the issuer of the Securities, any
seller of Securities other than the issuer; any guarantor or insurer of the
Securities, the trustee or trustees under any indenture governing the Securities
and any Representative (as hereinafter defined) other than us;
(c) the amount of Securities to be underwritten by
you;
(d) the expected offering date and the expected
closing date or dates for the Securities; and
(e) the initial offering price or prices of the
Securities and the gross underwriting discounts and commissions in connection
therewith, together with the management fee, underwriting compensation (and, if
the Invitation, as defined below, states that the provisions of Section 7(b)
hereof shall apply to the Offering, the portion of such underwriting
compensation designated as the selling underwriters' fee, as such term is
defined in Section 7(b) hereof) and
selling concession to Selected Dealers (as hereinafter defined) comprising such
underwriting discounts and commissions and with any reallowance to other
dealers, except that if the initial offering price or prices of the Securities
are to be determined by reference to the market price of the Securities or to a
formula based upon the market price of certain securities (either such procedure
being herein referred to as "Market Pricing"), we shall so indicate in lieu of
specifying such initial offering price or prices (and other applicable terms of
the Securities) and shall specify only the maximum gross underwriting discounts
and commissions and the maximum management fee, instead of the fixed gross
underwriting discounts and commissions and the management fee, underwriting
compensation (and, if applicable, selling underwriters' fee), selling concession
and reallowance.
Such invitation and additional information, to the extent
applicable and then determined, shall be conveyed to you in a telegram, telex,
facsimile transmission, e-mail or other written form (electronic or otherwise)
of communication (any communication in any such form being herein referred to as
a "written communication"). Any such additional information, to the extent
applicable but not determined at the time such invitation is conveyed to you,
will be conveyed to you in a subsequent written communication. All written
communications addressed to you with respect to the Offering are herein referred
to collectively as the "Invitation". The Invitation will include instructions
for advising us of your acceptance (your "Acceptance") of the Invitation. If we
have received your Acceptance, a subsequent written communication from us shall
state that you may reject your allotment of Securities by notifying us prior to
the time and in the manner specified in such written communication.
If any seller of Securities proposes to authorize the
Underwriters (as hereinafter defined) to solicit offers to purchase the
Securities pursuant to delayed delivery contracts (such contracts being herein
referred to as "Delayed Delivery Contracts" and an Offering of Securities
pursuant to such contracts being herein referred to as a "Delayed Delivery
Offering"), we shall so advise you in the Invitation and shall advise you of
certain terms of the Delayed Delivery Contracts and the compensation to be
received in connection therewith. If the Underwriting Agreement (as hereinafter
defined) provides for the granting by any seller of Securities solely to cover
over-allotments (the "Over-Allotment Securities"), we shall notify you in the
Invitation of such option and of your maximum obligation upon exercise of such
option.
The Invitation may also contain provisions that amend or
supplement the terms and conditions of this Agreement as they apply to an
Offering. To the extent such supplementary terms and conditions are inconsistent
with any provision herein, such terms and conditions shall supersede any such
provision and you, by your Acceptance, shall be bound thereby. The terms
2
and conditions of this Agreement, as so amended or supplemented, shall become
effective with respect to your participation in such Offering only if we have
received your Acceptance before the date and time specified in the Invitation
and have not received a subsequent written communication from you rejecting your
allotment, pursuant to the second preceding paragraph.
Except as otherwise indicated, the following provisions of
this Agreement shall apply separately to each Offering.
2. Underwriting Arrangements. In connection with each
Offering, one or more of the issuer, one or more shareholders of the issuer, or
any seller, guarantor or insurer of the Securities will enter into an
underwriting or purchase agreement and may enter into an associated terms
agreement or similar agreement (collectively, the "Underwriting Agreement") with
us acting either as sole representative or as lead representative of one or more
other representatives of the underwriters named in the Underwriting Agreement
(the "Underwriters"). We, as sole representative of the Underwriters or, we and
one or more other representatives of the Underwriters as are named in the
Invitation, as the case may be, are herein referred to as the "Representatives".
The Underwriting Agreement shall be in the form (with all such additions,
modifications and deletions as the Representatives shall deem appropriate) that
shall have been filed with, and be publicly available from, the Securities and
Exchange Commission (the "Commission") or such other regulatory authority as we
shall specify in the Invitation or that we shall send to you (or make available
for you review in our office) as soon as practicable.
By your Acceptance, you agree and authorize us to agree to
purchase on your behalf, in accordance with the terms of the Underwriting
Agreement, (a) the amount of the Securities set forth opposite your name in the
Underwriting Agreement (which amount may exceed the amount set forth in the
Invitation by not more than __% as result of an increase in the aggregate amount
of the Securities or a reallotment of the Securities among the Underwriters)
plus the amount of any Securities that you may become obligated to purchase,
other than the amount of any Over-Allotment Securities, pursuant to Section 5
hereof (collectively, your "Initial Commitment"), plus (b) the amount of any
Over-Allotment Securities that you may become obligated to purchase by reason of
the exercise of an option provided in the Underwriting Agreement (including any
such Securities purchased pursuant to Section 5 hereof), less (c) the amount of
any Securities contracted to be sold pursuant to any Delayed Delivery Contracts
("Contract Securities") allocated to you in accordance with the last paragraph
of Section 6 hereof. The Securities that, after adding any such increases to and
subtracting any such decrease from your Initial Commitment, you are obligated to
purchase pursuant to the Underwriting Agreement are herein referred to
collectively as "your Securities". The percentage that an Underwriter's Initial
Commitment bears to the aggregate Initial Commitments of all of the Underwriters
is hereinafter referred to as the "Initial Commitment Percentage" of such
Underwriter.
3
Your Acceptance shall also constitute (i) your representation
that your commitment to purchase your Securities will not result in a violation
of the financial responsibility requirements of Rule 15c3-1 (or any successor
provision) under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), or any similar requirements of the National Association of Securities
Dealers, Inc. ("NASD"), if you are a member, or of any securities exchange to
which you belong; (ii) your confirmation that the information that you have
given or are deemed to have given in response to the Master Underwriters'
Questionnaire, attached as Exhibit A hereto, is correct; and (iii) your consent
to the inclusion in any registration statement, prospectus or offering circular
(as hereinafter defined) in connection with an Offering, as such may be amended
or supplemented, of a reference to you as one of the Underwriters of the
Securities and of certain information that you have given or are deemed to have
given in response to the Master Underwriters' Questionnaire. You agree to notify
us immediately of any development before the termination of this Agreement with
respect to any Offering which makes untrue or incomplete any information that
you have given or are deemed to have given in response to the Master
Underwriters' Questionnaire, and you consent to the inclusion of the information
with respect to such development in such registration statement, prospectus or
offering circular.
In the event that the Securities include debt obligations
maturing serially, your Securities shall include, subject to any adjustments
provided for in the Underwriting Agreement or in the Invitation, a principal
amount of each series of such debt obligations that equals your Initial
Commitment Percentage of the aggregate principal amount of such series.
3. Offering Documents.
(a) Registered Offerings. In the case of an Offering
of Securities registered under the Securities Act (a "Registered Offering"), we
shall either provide you in the Invitation with the file number of the
registration statement filed with the Commission with respect to the Securities
or provide to you (or make available for your review in our office) as soon as
practicable a copy (which may be in electronic form) of such registration
statement or the latest amendment thereto which incorporates by reference the
original registration statement and earlier filed amendments. You shall
familiarize yourself with the terms of the Securities and the other terms of the
Offering reflected in the Invitation, such registration statement, any
prospectus subject to completion included in such registration statement (a
"preliminary prospectus"), any prospectus included in such registration
statement or otherwise filed with the Commission, or any amendment or supplement
to any of the foregoing. You understand that you will not be authorized by the
issuer or any seller, guarantor or insurer of the Securities to give any
information or to make any representation not contained in the registration
statement, a preliminary prospectus or the prospectus, as amended or
supplemented, in connection with the Offering of such Securities. You authorize
us, with the approval of counsel for the Underwriters, to approve on your behalf
any amendments or supplements to such registration statement, any such
preliminary prospectus or such prospectus. Your Acceptance shall constitute your
representation that the information to be set forth in such registration
statement, any such preliminary prospectus, such prospectus and any such
amendment or supplement is correct and not misleading insofar as it relates to
you. By your Acceptance you confirm that you have delivered and agree that you
will deliver all preliminary prospectuses and prospectuses required for
compliance with the provisions of Securities Act Release No. 4968 and Rule
15c2-8 (or any successor release or provision) under the Exchange
4
Act and any applicable foreign laws (and any applicable rules and regulations
thereunder). By your Acceptance you agree to make a record of your distribution
of each preliminary prospectus and prospectus (including dates, numbers of
copies and persons to whom sent) and you shall, if requested by the
Representatives, furnish a copy of an amended or supplemented preliminary
prospectus or prospectus to each person to whom you have furnished a previous
preliminary prospectus or prospectus and, if also requested by the
Representatives, indicate to each such person the changes reflected in such
amended or supplemented preliminary prospectus or prospectus.
(b) Non-Registered Offerings. In the case of an
Offering other than a Registered Offering, we shall provide you in the
Invitation with information as to the availability through a specified
regulatory authority of a preliminary offering circular or other document
comparable to a preliminary prospectus in a Registered Offering (a "preliminary
offering circular") relating to such Offering, a proof (which may be in
electronic format) of an offering circular or other document comparable to a
prospectus in a Registered Offering (an "offering circular") relating to such
Offering, or such offering circular. Alternatively, we may provide to you (or
make available for your review in our office) as soon as practicable a copy of
such preliminary offering circular, proof of an offering circular or offering
circular. You shall familiarize yourself with the terms of the Securities and
the other terms of the Offering reflected in the Invitation or in any such
preliminary offering circular, proof of an offering circular or offering
circular. You understand that you will not be authorized by the issuer or any
seller, guarantor or insurer of the Securities to give any information or to
make any representation not contained in a preliminary offering circular, proof
of an offering circular or offering circular, as amended or supplemented, in
connection with the Offering of such Securities. You authorize us, with the
approval of counsel for the Underwriters, to approve on your behalf any
amendments or supplements to any such preliminary offering circular, proof of an
offering circular or offering circular. Your Acceptance shall constitute your
representation that the information to be set forth in any such preliminary
offering circular, proof of an offering circular or such offering circular is
correct and not misleading insofar as it relates to you. By your Acceptance you
confirm that you have delivered and you agree that you will deliver all
preliminary offering circulars and offering circulars required for compliance
with the applicable federal, state and foreign laws, and applicable rules and
regulations of any regulatory body promulgated under such laws, governing the
use and distribution of offering circulars by underwriters and, to the extent
consistent with such laws, rules and regulations, you confirm that you have
delivered and agree that you will deliver all preliminary offering circulars and
offering circulars that would be required if the provisions of Rule 15c2-8 (or
any successor provision) under the Exchange Act applied to such Offering. By
your Acceptance you agree to make a record of your distribution of each
preliminary offering circular, proof of an offering circular and offering
circular (including dates, numbers of copies and persons to whom sent) and you
shall, if requested by the Representatives, furnish a copy of an amended or
supplemented preliminary offering circular, proof of an offering circular or
offering circular and, if also requested by the Representatives, indicate to
each such person the changes reflected in such amended or supplemented
preliminary offering circular, proof of an offering circular or offering
circular.
5
(c) Name and Address. Except as you otherwise notify
us in writing from time to time, your name as it should appear in the prospectus
or offering circular relating to an Offering and your address are as set forth
on the signature page hereof.
4. Authority of the Representatives. You authorize the
Representatives to execute and deliver the Underwriting Agreement on your behalf
and to agree to any variation of its terms except as to the purchase price of
your Securities (unless the offering price or prices of the Securities are to be
determined by Market Pricing) or, except as provided herein or in the
Underwriting Agreement, as to the amount of your Securities. If the offering
price or prices of the Securities are to be determined by Market Pricing, you
also authorize the Representatives to determine the initial offering price of
the Securities but not to change the manner in which the offering price or
prices are to be determined. You understand that the Representatives may change
the proposed composition of the syndicate of Underwriters.
You authorize us to exercise all the authority and discretion
vested in the Underwriters or in the Representatives by the provisions of the
Underwriting Agreement and to take all such actions as in our discretion may be
necessary or desirable to carry out the provisions of the Underwriting Agreement
and this Agreement. You understand that, except as otherwise specifically
indicated herein, all determinations made or other actions taken by us or by the
Representatives hereunder shall be made or taken in our sole discretion and
judgment or in the sole discretion and judgment of the Representatives, as the
case may be. You will be bound by all the terms of the Underwriting Agreement as
executed.
You authorize the Representatives to take such actions as may
be necessary or desirable to effect the sale and distribution of the Securities,
including the right to determine the terms of the Offering, the selling
concession to Selected Dealers and any reallowance to other dealers, the right
to exercise any option in the Underwriting Agreement relating to the purchase of
Over-Allotment Securities and the right to make any judgment relating to the
satisfaction of conditions to the obligations of the Underwriters under the
Underwriting Agreement (including the waiver of any such conditions or the
termination of the Underwriting Agreement.
6
You agree to cooperate with the Representatives to the extent possible in order
to satisfy any undertakings the Representatives may make to any national
securities exchange in connection with the listing and distribution of the
Securities. You authorize the Representatives to file with any governmental
agency any reports required to be filed by the Representatives or the
Underwriters in connection with the transactions contemplated by the
Underwriting Agreement or this Agreement, and you shall furnish any information
in your possession that is needed for such reports.
If the Underwriters should be deemed to constitute a
partnership for federal income tax purposes, then you elect to be excluded from
the application of Subchapter K, Chapter 1, Subtitle A of the Internal Revenue
Code of 1986 and agree not to take any position inconsistent with such election,
and you authorize the Representatives to execute and file on your behalf such
evidence of such election as may be required by the Internal Revenue Service.
If we are acting with other firms as Representatives, your
representations and agreements set forth herein shall also be for the benefit of
such other firms; provided, however, that it is expressly understood that any
action that you herein authorize the Representatives to take may be taken by us
on behalf of all of the Representatives.
You agree that a public advertisement of the Offering may be
made by the Representatives on behalf of the Underwriters on such date as the
Representatives shall determine. Your Acceptance shall constitute your
representation that you have not advertised the Offering and that you will not
do so until after the earlier of the first [Delivery] Date (as defined in the
Underwriting Agreement) or the first date on which the Representatives shall
have publicly advertised the Offering. You understand that any advertisement you
may then make shall be on your own responsibility and at your own expense and
risk.
5. Defaulting Underwriters. Until such time as the terms of
this Agreement shall cease to be applicable to an Offering, you authorize the
Representatives to arrange for the purchase by other persons, who may include
any of the Underwriters, of any Securities not taken up and paid for by any
Underwriter in default of its obligations under the Underwriting Agreement. If
such arrangements are made, the respective amounts of the Securities to be
purchased by the non-defaulting Underwriters and such other persons shall be
taken as the basis for all rights and obligations hereunder; but this shall not
in any way affect the liability of any defaulting Underwriter to the other
Underwriters for damages
7
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 event of a default by an Underwriter in respect of its
obligations under the Underwriting Agreement to take up and pay for any
Securities agreed to be purchased by it thereunder or a failure by an
Underwriter to deliver any securities sold or over-allotted by the
Representatives for the account of such Underwriter pursuant to Section 10
hereof or to bear, subject to the provisions of Section 7(b) hereof, if
applicable, its Initial Commitment Percentage of expenses or liabilities
pursuant to Sections 12, 14 and 15 hereof, and to the extent that arrangements
shall not have been made by us for any other persons to assume the obligations
of such Underwriter, you agree (subject to any limitations contained in the
Underwriting Agreement) to assume your proportionate share, based upon the
percentage that the amount of the Securities set forth in the Underwriting
Agreement opposite your name bears to the aggregate amount of the Securities set
forth in the Underwriting Agreement opposite the names of all non-defaulting
Underwriters, of the obligations of such Underwriter without relieving such
Underwriter of its liability therefor.
6. Offerings. The Representatives shall notify you when the
initial public offering of the Securities is to be made and of the initial
public offering price or prices, if any. You hereby authorize the
Representatives to change the public offering price or prices, the selling
concession to Selected Dealers and reallowance to other dealers, and the other
terms of sale hereunder and under any agreements with Selected Dealers, by
reason of changes in general market conditions or otherwise. The public offering
price or prices at any time in effect are hereinafter referred to as the
"offering price or prices". If the offering price or prices of Securities are to
be determined by Market Pricing, the offering price or prices, the selling
concession and the reallowance with respect to such Securities shall refer to
such price or prices, selling concession and reallowance as determined by the
Representatives from time to time. You agree that any of the Securities released
to you for public offering and not reserved by the Representatives for sale to
dealers, including any firm also acting as an Underwriter, to be selected by the
Representatives (the "Selected Dealers") or to institutions and other retail
purchasers shall be promptly reoffered at the offering price or prices, and you
will not allow any discount therefrom except as otherwise provided herein.
You authorize the Representatives, for your account, to
reserve and offer for sale to Selected Dealers such of your Securities as the
Representatives may determine. Reservations for sales to Selected Dealers for
the accounts of the Underwriters need not be made in proportion to the
respective Initial Commitment Percentages of the Underwriters. Any Securities so
reserved for your account shall be made as nearly as practicable in the ratio
which the amount of your Securities reserved for sale to Selected Dealers bears
to the aggregate amount of Securities so reserved for the accounts of all
Underwriters, as calculated from day to day. Any such offering to Selected
Dealers may be made pursuant to the terms and conditions of Wit Capital
Corporation Master Selected Dealer Agreement (copies of which are available from
us upon request) or otherwise, as the Representatives may determine.
8
You also authorize the Representatives, for your account, to
reserve and offer for sale to institutions and other retail purchasers such of
your Securities as the Representatives may determine. Except for any such sale
designated by a purchaser to be for the account of a particular Underwriter,
such reservations and sales for your account shall be made as nearly as
practicable in accordance with your Initial Commitment Percentage, unless you
agree to a smaller amount at the request of the Representatives.
You authorize the Representatives to make purchases and sales
of Securities from or to any Selected Dealer or Underwriter at the offering
price or prices less all or any part of the selling concession to Selected
Dealers set forth in the Invitation. With the consent of the Representatives,
any Underwriter may make purchases or sales of the Securities from or to any
Selected Dealer or Underwriter at the offering price or prices less all or any
part of such selling concession. Upon the request of the Representatives, you
will notify the Representatives of the identity of any dealer to whom you
allowed such a discount and any Underwriter or Selected Dealer from whom you
received such a discount.
If an Offering is subject to the By-Laws, rules and
regulations of the NASD, the provisions of this paragraph shall also apply.
Selling concessions to Selected Dealers and reallowances to other dealers may be
allowed only as consideration for services rendered in distribution to dealers
who are actually engaged in the investment banking or securities business, who
execute the written agreement prescribed by Section 24(c) of Article III of the
Rules of Fair Practice of the NASD and who are either members in good standing
of the NASD or are foreign banks, dealers or institutions not eligible for
membership in the NASD who agree to make no sales within the United States of
America, its territories or possessions or to persons who are citizens thereof
or residents therein and to comply with the NASD's Interpretation with Respect
to Free-Riding and Withholding in making sales outside the United States of
America. In connection with any purchase or sale of any of the Securities
wherein a selling concession, discount or other allowance is received or
granted, (a) each Underwriter agrees to comply with the provisions of Section 24
of Article III of the NASD's Rules of Fair Practice and (b) in the case of
Underwriters that are non-NASD member brokers or dealers in a foreign country,
each Underwriter also agrees to comply, as though such Underwriter were an NASD
member, with the provisions of Sections 8 and 36 thereof and to comply with
Section 25 thereof as that section applies to non-NASD member brokers or dealers
in a foreign country.
The Representatives shall notify each Underwriter promptly
upon the initial release of the Securities for public offering as to the amount
of Securities reserved for sale to Selected Dealers and institutions and other
retail purchasers, including, in the case of a Delayed Delivery Offering,
Securities reserved for sale to institutional investors who have entered or will
enter into Delayed Delivery Contracts. Securities not so reserved may be sold
directly by each Underwriter for its own account in conformity with the terms of
offering set forth in the prospectus or offering circular relating to such
Offering, except that from time to time the Representatives may add to the
Securities reserved for sale to Selected Dealers and institutions and other
retail purchasers any Securities retained and not sold by an Underwriter. You
agree to notify the Representatives from time to time, upon their request, of
the amount of your Securities retained by you for direct sale remaining unsold
and, upon request of the Representatives, to deliver to the Representatives for
your account, or sell to the Representatives for the account of one or more of
the Underwriters,
9
such amount of unsold securities as the Representatives may designate at the
offering price less an amount determined by the Representatives not in excess of
the selling concession to Selected Dealers. The Representatives may repurchase
Securities from all Underwriters or Selected Dealers, for the account of one or
more of the Underwriters, at prices determined by the Representatives not in
excess of the offering price less the selling concession to Selected Dealers. If
all the Securities reserved for offering to Selected Dealers and institutions
and other retail purchasers are not sold by the Representatives promptly, any
Underwriter may from time to time, with the consent of the Representatives,
obtain a release of all or any portion of the Securities of such Underwriter
then remaining unsold and Securities so released shall thereafter be deemed not
to have been reserved. Securities of any Underwriter so reserved which remain
unsold or, if sold, have not been paid for at any time prior to the time that
the terms of this Agreement cease to apply to the Offering of such Securities
may, in the discretion of the Representatives or upon the request of such
Underwriter, be delivered to such Underwriter for carrying purposes or for sale
by such Underwriter, but such Securities shall remain subject to disposition by
the Representatives until delivered for sale by such Underwriter or the time
that the terms of this Agreement cease to apply to such Offering. To the extent
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 returned to the Representatives upon demand. If the aggregate amount of
Securities so reserved at the time that the terms of this Agreement cease to
apply to such Offering does not exceed 20% of the aggregate amount of
Securities, the Representatives may sell for the accounts of the several
Underwriters any such Securities so reserved, at such prices, on such terms and
in such manner as the Representatives may determine.
In the case of a Delayed Delivery Offering, you authorize the
Representatives to make all arrangements for the solicitation of offers to
purchase Securities from the seller or sellers pursuant to Delayed Delivery
Contracts and you agree that all such arrangements will be made only through the
Representatives, either directly or through Underwriters or Selected Dealers. To
the extent that the Representatives shall determine, Contract Securities that
have been directed by institutions or other retail purchasers to a particular
Underwriter or that were contracted for pursuant to arrangements made by a
particular Underwriter through the Representatives shall be allocated to such
Underwriter and all other Contract Securities shall be allocated to the accounts
of the respective Underwriters as nearly as practicable in accordance with their
respective Initial Commitment Percentages; provided, however, that the principal
amount of Contract Securities so allocated to any Underwriter shall not exceed
such Underwriter's Initial Commitment, and any Contract Securities that would
otherwise have been allocated to such Underwriter ("Excess Contract Securities")
shall be allocated among the other Underwriters in such manner as the
Representatives shall, in their discretion, determine to be equitable and
practicable. The Representatives may pay a commission to any Selected Dealer for
services rendered in respect of Contract Securities.
7. Compensation to Representatives and Selling Underwriters.
(a) Compensation to Representatives. As compensation
for the services of the Representatives, you agree to pay the Representatives,
and authorize the
10
Representatives to charge your account with, an amount not in excess of the
management fee specified in the Invitation. Such fee shall not be reduced for
any Securities to be delivered pursuant to any Delayed Delivery Contracts. If we
are acting with other firms as Representatives, such compensation shall be
divided among the Representatives in such proportions as the Representatives may
determine.
(b) Compensation to Selling Underwriters. If the
Invitation states that the provisions of this Section 7(b) shall apply to the
Offering, as compensation for the services of those Underwriters which actually
sell for their own account some or all of the Securities, whether consisting of
Securities retained by or Securities released to any such Underwriter for direct
sale (each such Underwriter being herein referred to as a "Selling
Underwriter"), (i) you agree to pay the Selling Underwriters, and authorize the
Representatives to charge your account with, an amount not in excess of the
portion of the underwriting compensation specified in the Invitation as the
selling underwriters' fee (which shall be paid with respect to all of your
Securities, whether or not such Securities are ultimately sold by an
Underwriter, including you, or by Selected Dealers), and (ii) if you become a
Selling Underwriter with respect to the Offering, there shall be credited to
your account as compensation for such services your allocable portion of the
aggregate selling underwriters' fee, as described below. The account of each
Selling Underwriter shall be credited with an amount equal to the product of (x)
the excess, if any, of (A) the aggregate selling underwriters' fee over (B) the
total amount of General Expenses (as defined in Section 12 hereof) in connection
with the Offering, and (y) the percentage that the amount of Securities retained
by or released to such Selling Underwriter for direct sale bears to the
aggregate amount of Securities retained by or released to all of the
Underwriters for direct sale in the Offering (such percentage being referred to
herein as the "Selling Percentage"). With respect to any Delayed Delivery
Offering, the provisions of this Section 7(b) shall be amended as provided in
the Invitation.
The provisions of this Section 7(b) may only be made
applicable to Offerings of securities by closed-end management investment
companies.
8. Payment and Delivery for the Securities. At or before such
time, on such dates and at such places as specified in the Invitation, you agree
to deliver to us, unless otherwise specified in the Invitation, a certified or
official bank check or checks drawn on or by a New York Clearing House bank and
payable in next day funds to our order. Such payment shall be in an amount equal
to the initial offering price or prices plus any accrued interest, amortization
of original issue discount or accumulated dividends required to be paid to the
seller or sellers pursuant to the Underwriting Agreement, less the selling
concession to Selected Dealers, in respect of either your Securities or that
portion of your Securities retained by or released to you for direct sale, as
the Representatives shall direct. You authorize the Representatives to make
payment for your Securities against delivery to the Representatives of your
Securities (which, in the case of Securities that are debt obligations, may be
in temporary form), and the difference between the amount of such payment and
the amount of your funds delivered to us therefor shall be credited to your
account. You authorize the Representatives to accept delivery of your Securities
in definitive form upon exchange of any Securities in temporary form received by
the Representatives on the [Delivery] Date pursuant to the preceding sentence.
You further authorize
11
the Representatives to make the payment referred to above with their own funds
on your behalf and to charge current interest rates thereon. In such an event,
you shall reimburse the Representatives promptly upon request.
You authorize the Representatives to hold any of your
Securities that have been sold or reserved for sale to Selected Dealers or to
institutions or other retail purchasers and to deliver such Securities against
your payment of an amount equal to the initial offering price or prices of such
Securities plus any accrued interest, amortization of original issue discount or
accumulated dividends as the Representatives determine, less the selling
concession to Selected Dealers in respect thereof. The Representatives may cause
some or all of your Securities so reserved to be delivered to the
Representatives registered in one or all of their names or in such other names
as the Representatives shall designate, but such registration shall be for
administrative convenience only and shall not affect your title to such
Securities or the severalty of the obligations of the Underwriters to the seller
or sellers. Any of your Securities not sold or reserved by the Representatives
as aforesaid shall be available for delivery to you at your office as soon as
practicable after such Securities have been delivered to the Representatives. At
such time as this Agreement shall cease to apply to an Offering or such earlier
time as the Representatives shall determine, the Representatives shall deliver
to you any of your Securities reserved for sale to Selected Dealers or
institutions or other retail purchasers but not sold and paid for, against
payment as aforesaid.
In the case of a Delayed Delivery Offering, the commission
payable by the seller or sellers in respect of Contract Securities allocated to
you pursuant to the last paragraph of Section 6 hereof shall be credited to your
account, after deducting any commissions paid by the Representatives to any
Selected Dealer for services rendered in respect of such Contract Securities,
and in addition you shall be treated as a Selected Dealer in respect of your
Excess Contract Securities, if any.
If the Underwriting Agreement for any Offering provides for
the payment of a commission or other compensation to the Underwriters, you
authorize the Representatives to receive such commission or other compensation
for your account.
Notwithstanding the foregoing provisions of this Section 8 and
provided that the Representatives are able to utilize the services and
facilities of The Depository Trust Company or any other depository or similar
facility, if transactions in the Securities can be settled through the
facilities of The Depository Trust Company or any other depository or similar
facility, payment for and delivery of your Securities may be made through such
facilities, if you are a member, unless you have otherwise notified us within
two days after the date the Securities are first released for public offering,
or, if you are not a member, settlement may be made through a correspondent who
is a member pursuant to instructions you may send to us on or before the third
business day preceding the applicable Closing Date.
9. Authority to Borrow. You authorize the Representatives to
the extent permitted by law, to arrange loans for your account, to execute and
deliver any notes or other instruments in connection therewith and to pledge as
security therefor all or any part of your Securities or of any securities
purchased for the accounts of the several Underwriters pursuant to Section 10
hereof, as the Representatives may deem necessary or advisable to carry out the
purchase, carrying and distribution of the Securities. You further authorize the
Representatives to
12
advance their own funds on your behalf and to charge current interest rates
thereon, in which event you shall reimburse the Representatives promptly upon
request. The obligations of the Underwriters under loans arranged on their
behalf, including advances by the Representatives, shall be several in
proportion to their respective participations in such loans, and not joint. Any
lender is authorized to accept the instructions of the Representatives as to the
disposition of the proceeds of any such loans. The Representatives shall credit
you with the proceeds of any loans made for your account.
10. Over-Allotment; Stabilization. You authorize the
Representatives for the account of each Underwriter, prior to such time as this
Agreement shall cease to be applicable to an Offering, and for such longer
period as may be necessary in the judgment of the Representatives to cover any
short position incurred for the accounts of the several Underwriters pursuant to
this Agreement, (a) to over-allot in arranging for sales of Securities to
Selected Dealers and to institutions and other retail purchasers and, if
necessary, to purchase Securities or other securities of the issuer at such
prices as the Representatives may determine for the purpose of covering such
over-allotments and (b) for the purpose of stabilizing the market in the
Securities, to make purchases and sales of Securities or of any other securities
of the issuer or any guarantor or insurer of the Securities as the
Representatives may advise by the Invitation or otherwise, on the open market or
otherwise, 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, however, that at no time shall your net commitment under
this Section 10, either for long or short account (your net commitment in the
case of a short account being computed on the assumption that all Over-Allotment
Securities, if any, are acquired), exceed 20% (or such other amount as may be
specified in the Invitation) of the aggregate initial offering price of your
Securities. Subsequent to receipt by us of the Acceptances of the Underwriters
of an Offering, such percentage may be increased in connection with such
Offering with the approval of a majority in interest of the Underwriters. Such
purchases, sales and over-allotments shall be made for the respective accounts
of the several Underwriters as nearly as practicable in accordance with their
respective Initial Commitment Percentages. It is understood that, in connection
with any particular Offering, the Representatives may make purchases of
securities of the issuer or any guarantor or insurer of the Securities for
stabilizing purposes before the time you become an Underwriter, and you 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. You agree to take up on demand at cost any securities so
purchased for your account and deliver on demand any securities so sold or
over-allotted for your account. You authorize the Representatives to sell for
the account of the Underwriters any securities purchased pursuant to this
Section 10, upon such terms as the Representatives may deem advisable, and any
Underwriter, including any of the Representatives, may purchase such securities.
You authorize the Representatives to charge the respective accounts of the
Underwriters with broker's commissions or dealer's ▇▇▇▇-ups on purchases or
▇▇▇▇-▇▇▇▇▇ on sales effected by the Representatives. If the Representatives
effect any stabilizing purchases pursuant to this Section, the Representatives
shall notify you promptly of the date and time of the first stabilizing purchase
and the date and time when stabilizing was terminated. You agree to transmit to
the Representatives for filing with the Commission any report required to be
made by you pursuant to the Exchange Act as a result of any transactions in
connection with any Offering. It is understood
13
that no assurance is given by the Representatives or any other Underwriter that
the price of any securities of the issuer or any guarantor or insurer of the
Securities will be stabilized or that stabilizing, if commenced, will not be
discontinued at any time.
If pursuant to the provisions of the preceding paragraph and
prior to such time as the terms of this Agreement shall cease to be applicable
to an Offering (or prior to such earlier date as the Representatives may have
determined or such later date as may be necessary in the judgment of the
Representatives to cover any short position incurred for the accounts of the
several Underwriters pursuant to this Agreement) the Representatives purchase or
contract to purchase for the account of any Underwriter in the open market or
otherwise any Securities that were retained by, or released to, you for direct
sale, or any Securities issued in exchange for such Securities, you authorize
the Representatives either to charge your account with an amount equal to the
selling concession to Selected Dealers with respect thereto, which amount shall
be credited against the cost of such Securities, or to require you to repurchase
such Securities at a price equal to the total cost of such purchase, including
any accrued interest, amortization of original issue discount, accumulated
dividends, transfer taxes, broker's commissions or dealer's ▇▇▇▇-ups. In lieu of
such action, the Representatives may sell for your account the Securities so
purchased and debit or credit your account for the loss or profit resulting from
such sale, after giving effect to the incurrence of any of the charges and
expenses referred to above.
You acknowledge that the Representatives do not intend to
effect over-allotments or engage in stabilizing transactions with respect to
Offerings designated as "Public Venture Capital Offerings," unless otherwise so
indicated in the Invitation.
11. Open Market Transactions. You represent and agree that in
each Offering you will comply with the provisions of Regulation M (or any
successor provision) under the Exchange Act with regard, among other things, to
trading by underwriters. By your Acceptance, you represent that you have not,
since you became a "prospective underwriter" of the Securities (as defined in
said Rule), participated in any transaction prohibited by said Rule and you will
comply with the provisions of said Rule applicable to the Offering. You agree
that for purposes of this paragraph, in addition to the Securities, other
securities specified in the Invitation shall be considered securities of the
same class and series as the Securities to which this Agreement relates unless
the Representatives shall determine otherwise and so inform you.
12. Allocation and Payment of Expenses. You authorize the
Representatives to charge your account, based upon your Initial Commitment
Percentage, of all expenses of a general nature incurred by the Representatives
in connection with the negotiation for and the purchase, carrying, marketing and
sale of the Securities (including without limitation any expenses incurred in
connection with, and any interest on, any amounts borrowed pursuant to Section 9
hereof) on behalf of the Underwriters and any losses or expenses incurred by the
Representatives as a result of or in connection with any over-allotment,
stabilization or other transactions effected pursuant to Section 10 hereof and,
in the case of a Delayed Delivery Offering, in connection with the solicitation
of offers to purchase Securities pursuant to Delayed Delivery Contracts (all
such expenses of a general nature being herein referred to collectively as
"General Expenses"); provided, however, that in no event shall General Expenses
be deemed to
14
include any liabilities or expenses contemplated by Sections 14 and 15 hereof.
You authorize the Representatives to charge your account with any transfer taxes
on sales of Securities made for your account (which transfer taxes shall not be
deemed to constitute General Expenses). You agree that the Representatives, in
order to facilitate a secondary offering of equity securities, may agree to pay
any stock transfer tax, subject to the reimbursement by the sellers of
associated carrying costs if such tax payment is not rebated on the day of
payment and of any portion of such tax payment not rebated. In the event that
such a tax payment results in any expense to the Representatives, such expense
shall be deemed to constitute General Expenses for purposes of this paragraph.
Neither any statement by the Representatives of any credit or debit balance in
your account nor any reservation from distribution to cover possible additional
expenses relating to the Securities shall constitute any representation by the
Representatives as to the existence or nonexistence of possible unforeseen
expenses or liabilities of or charges against the several Underwriters.
Notwithstanding the foregoing, if the Invitation states that
the provisions of Section 7(b) hereof shall apply to the Offering, all General
Expenses in connection with the Offering shall first be charged against
available funds that would otherwise be paid or credited to the accounts of the
Selling Underwriters from the aggregate selling underwriters' fee pursuant to
Section 7(b) hereof, and, to the extent not satisfied from such funds, you will
be liable for your Initial Commitment Percentage of all such General Expenses.
As promptly as possible after such time as this Agreement
shall cease to apply to an Offering, the accounts arising pursuant hereto shall
be settled and paid, but the Representatives may reserve such amount as they
deem advisable for additional expenses. The Representatives' ascertainment of
all expenses and their apportionment thereof shall be conclusive. The
Representatives may at any time make partial distributions of credit balances or
call for payment of debit balances. Any of your funds in the hands of the
Representatives may be held with their general funds without accountability for
interest. Notwithstanding any settlement or settlements hereunder, you will
remain liable for any transfer taxes on transfers for your account and for your
Initial Commitment Percentage of all expenses and liabilities incurred by or for
the accounts of the Underwriters, including any expenses and liabilities
referred to in Sections 14 and 15 hereof, which shall be determined as provided
in this Section 12. If the Invitation states that the provisions of Section 7(b)
hereof shall apply to the Offering and if you are a Selling Underwriter with
respect to the Offering, notwithstanding any settlement or settlements
hereunder, you shall remain liable for your Selling Percentage of all General
Expenses in connection with the Offering chargeable to the selling underwriters'
fee hereunder and for your Initial Commitment Percentage of the balance of such
General Expenses in the event such expenses exceed the aggregate selling
underwriters' fee.
13. Termination; Amendments. (a) 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 Offering, if we receive
any such notice from you after your Acceptance, this Agreement shall remain in
full force and effect as to such Offering and shall terminate with respect to
such Offering in accordance with the provisions of paragraph (b) of this
Section.
(b) If we have received your Acceptance with respect
to an Offering,
15
unless this Agreement or any provision hereof is earlier terminated by us and
except as otherwise provided in the Invitation, the terms and conditions of this
Agreement shall cease to be applicable to your participation in such Offering at
the close of business on the forty-fifth day after the date the Securities are
first released for public offering, but may be extended by us by written
communication for a further period or periods not exceeding an aggregate of
forty-five days; provided, however, that the provisions of this Agreement that
contemplate obligations surviving the termination of its effectiveness and the
provisions of Sections 12, 14 and 15 hereof shall survive such termination with
respect to any Offering.
(c) This Agreement may be amended or supplemented by
us by written notice to you and without need for further action on your part
and, except for amendments or supplements set forth in the Invitation relating
to a particular Offering, any such amendment or supplement to this Agreement
shall be effective with respect to any Offering, effected after this Agreement
is so amended or supplemented. Each reference herein to "this Agreement" shall,
as appropriate, be to this Master Agreement Among Underwriters as so amended and
supplemented by the Invitation or otherwise.
14. Liability of Representatives and Underwriters. Neither as
Representatives nor individually shall the Representatives be under any
liability (except for their own want of good faith and for obligations expressly
assumed by them hereunder) for or in respect of the validity, value or delivery
of, or title to, any Securities or any securities issuable upon exercise,
conversion or exchange of any Securities; the form of, or the statements
contained in, or the validity of, in the case of a Registered Offering, the
registration statement, any preliminary prospectus, the prospectus, any
amendment or supplement to any of the foregoing or any materials incorporated by
reference in any of the foregoing or, in the case of an Offering other than a
Registered Offering, any preliminary offering circular, any proof of an offering
circular, any offering circular, any amendment or supplement to any of the
foregoing or any materials incorporated by reference in any of the foregoing,
or, in either case, any letters or instruments executed by or on behalf of the
issuer, any seller other than the issuer, any guarantor or insurer of the
Securities or any other party; the form or validity of any contract or agreement
under which any Securities may be issued or which governs the rights of holders
of any Securities; the form or validity of any Underwriting Agreement, any
Delayed Delivery Contract or this Agreement; the performance by the issuer, any
seller other than the issuer, any guarantor or insurer of the Securities and any
other parties of any agreement on its or their parts; the qualification for sale
in any jurisdiction of any Securities or securities issuable upon exercise,
conversion or exchange of any Securities or the legality for investment of the
Securities or such securities under the laws of any jurisdiction; or any matter
in connection with any of the foregoing; provided, however, that nothing in this
paragraph shall be deemed to relieve the Representatives from any liability
imposed by the Securities Act. The Representatives do not waive any right that
they may have under the Securities Act or the Exchange Act or the rules and
regulations promulgated thereunder or under state law.
Nothing contained herein or in any written communication from
us shall constitute the several Underwriters an association or partners with you
or each other or, except as herein expressly provided, render any Underwriter
liable for the obligations of any other Underwriter. The rights,
16
obligations and liabilities of each of the Underwriters are several, in
accordance with their respective obligations, and not joint. Notwithstanding any
settlement of accounts under this Agreement, you agree to pay your Initial
Commitment Percentage of the amount of any claim, demand or liability that 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 your Initial Commitment Percentage of
expenses approved by the Representatives and incurred by the Underwriters or any
of them, in contesting any such claims, demands or liabilities.
15. Indemnification and Contribution. (a) Each Underwriter
agrees to indemnify, hold harmless and reimburse each other Underwriter and each
person (other than the issuer), if any, who controls such other Underwriter
within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act to the extent, and upon the terms that such Underwriter agrees to
indemnify, hold harmless and reimburse the issuer, any seller other than the
issuer and certain other persons pursuant to the provisions of the Underwriting
Agreement. This indemnity agreement shall remain in full force and effect
regardless of any investigation made by or on behalf of such other Underwriter
or controlling person.
Each Underwriter represents to each other Underwriter that the
information relating to such Underwriter that has been or may be furnished in
writing to the issuer by such Underwriter expressly for use, in the case of a
Registered Offering, in the registration statement, any preliminary prospectus,
any prospectus or any amendment or supplement to any of the foregoing with
respect to such Securities or, in the case of an Offering other than a
Registered Offering, any preliminary offering circular, proof of an offering
circular, offering circular or amendment or supplement to any of the foregoing
with respect to such Securities is correct in all material respects. This
representation shall remain in full force and effect regardless of any
investigation made by or on behalf of any such other Underwriter or controlling
person.
(b) Each Underwriter agrees to pay upon the
Representatives' request, as contribution, its Initial Commitment Percentage of
any losses, claims, damages or liabilities, joint or several, under the
Securities Act or otherwise, paid or incurred by any Underwriter (including the
Representatives, individually or as representatives of the Underwriters) to any
person other than an Underwriter (including amounts paid by an Underwriter as
contribution), arising out of or based upon (i) an untrue statement or alleged
untrue statement of a material fact contained in such registration statement or
any amendment thereto or arising out of or based upon 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, (ii) an untrue
statement or alleged untrue statement of a material fact contained in any such
preliminary prospectus, prospectus, preliminary offering circular, proof of an
offering circular, offering circular, amendment or supplement to any of the
foregoing, or any other selling or advertising material used with the consent of
the Representatives by the Underwriters in connection with the sale of the
Securities, or arising out of or based upon the omission or alleged omission to
state therein a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading and (iii)
any act or omission to act or any alleged act or omission to act by the
Representatives, individually or as representatives of the Underwriters, or by
the Underwriters, as a group but not individually, in connection with any
transaction contemplated by this Agreement or undertaken in preparing for the
purchase, sale and delivery of the Securities; and each Underwriter will pay its
Initial Commitment Percentage of any legal or other expenses reasonably incurred
by the Representatives, or with their 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
paragraph, appropriate adjustment may be made by the Representatives to reflect
any amounts received by any one or more Underwriters, pursuant to the
Underwriting Agreement or otherwise, in respect of the claim upon which such
obligation is based. In respect of any claim there shall be credited against the
amount of any Underwriter's obligation under this paragraph any loss, damage,
liability or expense that is paid or incurred by such Underwriter as a result of
such claim being asserted against it, and, if such loss, damage, liability or
expense is paid or incurred by such Underwriter subsequent to any payment by it
pursuant to this paragraph, appropriate provision shall be made to effect such
credit, by refund or otherwise. If any claim to which the provisions of this
paragraph would be applicable is asserted, the Representatives may take such
action in connection therewith as they deem necessary or desirable, including
retention of counsel for the Underwriters and separate counsel for any
particular Underwriter or group of Underwriters, and the fees and disbursements
of any counsel so retained by the Representatives shall be included in the
amounts of the Underwriters' obligations under this paragraph. The
Representatives may consent to being named as the representatives of a defendant
class of underwriters. Any Underwriter may elect to retain at its own expense
its own counsel and, on advice of such counsel and with the Representatives'
consent, may settle or consent to the settlement of any such claim. The
Representatives may settle or consent to the settlement of any such claim, on
advice of counsel retained by them, with the approval of a majority in interest
of the Underwriters. Whenever any Underwriter receives notice of the assertion
of any claim to which the provisions of this paragraph would be applicable, such
Underwriter shall give prompt notice thereof to the Representatives. Whenever
the Representatives receive notice of the assertion of any such claim, they
shall give prompt notice thereof to each Underwriter. The Representatives also
shall furnish each Underwriter with periodic reports, at such times as they deem
appropriate, as to the status of any such claim and the action taken by them in
connection therewith. In the event of the failure of any Underwriter to fulfill
its obligations under this paragraph, such obligations may be charged against
each non-defaulting Underwriter in the same proportion as the respective Initial
Commitment of such non-defaulting Underwriter bears to the aggregate Initial
Commitments of the non-defaulting Underwriters, without relieving such
defaulting Underwriter of its liability therefor. In determining the amount
payable pursuant to this paragraph, any loss, claim, damage, liability or
expense paid or incurred, and any amount received, by any person controlling any
Underwriter within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act shall be deemed to have been paid or incurred or received by
such Underwriter to the extent such amount has been paid or incurred or received
by reason of such control relationship. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
16. Title to Securities. The Securities purchased by or on
behalf of the respective Underwriters and any securities purchased pursuant to
Section 10 hereof by or on behalf of the respective Underwriters shall remain
the property of such Underwriters until sold,
18
and title to any such Securities or securities shall not in any event pass to
the Representatives by virtue of any of the provisions of this Agreement.
17. Legal Qualifications. It is understood that the
Representatives assume no responsibility with respect to the right of any
Underwriter or other person to offer or to sell Securities in any jurisdiction,
notwithstanding any "Blue Sky" memorandum or survey or any other information
that the Representatives may furnish as to the jurisdictions under the
securities laws of which it is believed the Securities may be sold. You
authorize the Representatives 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 you propose to offer Securities outside the United States
of America, its territories or its possessions, you shall take, at your own
expense and risk, such action, if any, as may be necessary to comply with the
laws of each foreign jurisdiction in which you propose to offer Securities.
If the Representatives inform you that the NASD views the
Offering as subject to Schedule E to the By-Laws of the NASD, you agree that you
shall, to the extent required, offer the Securities in compliance with such
Schedule and the NASD's interpretation thereof.
If the Representatives inform you that the NASD views the
Securities as interests in a direct participation program, you agree that you
shall, to the extent required, offer the Securities in compliance with the
NASD's interpretation of Appendix F of its Rules of Fair Practice.
18. Successors and Assigns. This Agreement shall be binding
on, and inure to the benefit of, the parties hereto and the other persons
specified in Section 15 hereof, and the respective successors and assigns of
each of them.
19. APPLICABLE LAW. THIS AGREEMENT AND THE TERMS AND
CONDITIONS SET FORTH HEREIN WITH RESPECT TO ANY OFFERING, TOGETHER WITH SUCH
SUPPLEMENTARY TERMS AND CONDITIONS WITH RESPECT TO SUCH OFFERING AS MAY BE
CONTAINED IN THE INVITATION IN CONNECTION THEREWITH, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
20. Miscellaneous. Any notice from the Representatives or us
to you shall be deemed to have been duly given if conveyed by written
communication or telephone to you at the address set forth at the end of this
Agreement, or at such other address as you shall have advised us from time to
time in writing. Any notice from you to the Representatives or us shall be
deemed to have been duly given if conveyed to us by written communication to ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇; by
telephone to ▇▇▇-▇▇▇-▇▇▇▇; by facsimile to 212-253-4410; or by e-mail to
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇.
You represent that you are actually engaged in the investment
banking or securities business and that you are either a member in good standing
of the NASD or, if you are not such a member, you are a foreign bank, dealer or
institution not eligible for membership in the NASD
19
that agrees to make no sales within the United States of America, its
territories or possessions or to persons who are citizens thereof or residents
therein (except that you may participate in sales to Selected Dealers and to
institutions and other retail purchasers under Section 6 hereof) and to comply
with the NASD's interpretation with Respect to Free-Riding and Withholding in
making sales outside the United States of America.
In connection with any Registered Offering of Securities of an
issuer that was not, immediately prior to the filing of the registration
statement with respect to such Securities, subject to the requirements of
Section 13(a) or 15(d) of the Exchange Act, you agree that you will not sell any
of such Securities to any accounts over which you exercise discretionary
authority.
20
Please confirm, by signing and returning this Agreement to us,
your acceptance of and agreement to the terms and conditions of this Agreement
(as supplemented and amended from time to time pursuant to Section 13 hereof),
together with and subject to any supplementary or alternative terms and
conditions contained in the Invitation and any other written communication from
us or the Representatives in connection with such Offering, all of which shall
constitute a binding agreement between you and the Representatives and among you
and the other Underwriters. Your Acceptance of an Invitation with respect to an
Offering shall constitute (a) confirmation that your representations and
warranties set forth in this Agreement are true and correct as of the times or
for the periods specified herein, (b) confirmation that your agreements set
forth in this Agreement have been and will be performed fully by you to the
extent and at the times required hereby and (c) acknowledgment of your
familiarity with the offering documents, as set forth in Section 3 hereof, with
respect to such Offering.
Very truly yours,
WIT CAPITAL CORPORATION
By:
-------------------------------------
Name:
Title:
CONFIRMED as of the date first written above:
------------------------------------------
(Name of Firm)
By:
---------------------------------------
Title:*
-----------------------------------
Address:
----------------------------------
----------------------------------
----------------------------------
Name as it should appear in any
prospectus, offering circular or
advertisement (if different from above):
------------------------------------------
Exhibit A
--------------------------------
* If signer is not an officer or partner, please attach evidence of
authorization.
21
MASTER UNDERWRITERS' QUESTIONNAIRE
Unless otherwise defined, capitalized terms used herein have
the meanings assigned thereto in the Master Agreement Among Underwriters dated
November __, 1997 between Wit Capital Corporation and you (as amended or
supplemented from time to time, the "Agreement"). Reference will be made to this
Master Underwriters' Questionnaire in each Invitation described in Section 1 of
the Agreement received by you from Wit Capital Corporation in connection with an
Offering of Securities in which Wit Capital Corporation is acting as sole or
lead representative of the several Underwriters. Your Acceptance of any such
Invitation should refer to this Master Underwriters' Questionnaire and should
set forth any exceptions to the following statements or state that there are no
such exceptions.
(1) Neither you nor any of your directors, officers or
partners has a material relationship (as "material" is defined in Rule
405 under the Securities Act) with the issuer of the Securities, its
parent (if any) or any guarantor, insurer or seller of the Securities.
(2) Neither you nor any of your directors, officers or
partners, separately or as a "group" (as that terms is used in Section
13(d)(3) of the Exchange Act), owns of record or beneficially
(determined in accordance with Rule 13d-3 under the Exchange Act) more
than five percent of any class of voting securities of the issuer, its
parent (if any), or any guarantor, insurer or seller of the Securities,
nor do you have any knowledge that more than five percent of any class
of voting securities of such issuer, parent, guarantor, insurer or
seller is held or to be held subject to any voting trust or other
similar agreement.
(3) You have not prepared any report or memorandum for
external use by the issuer or any Underwriter in connection with the
Offering or, if you have prepared any such report or memorandum, you
are furnishing to Wit Capital Corporation (a) three copies thereof and
(b) a statement as to the actual or proposed use, identifying each
class of persons (institutional clients, retail clients, etc.) who have
received or will receive the report or memorandum, the number of copies
distributed to each such class and the period of distribution.
(4) In the case of a Registered Offering for which the
registration statement is on Form S-1: You have not prepared any
engineering, management or similar report or memorandum relating to
broad aspects of the business, operations or products of the issuer,
its parent (if any), or any guarantor or insurer of the Securities
within the past twelve months (except for reports solely comprised of a
recommendation to buy, sell or hold the securities of the issuer, its
parent (if any), any guarantor or any insurer, unless such
recommendation has changed within the past six months) or, if any such
report or memorandum has been prepared, you are furnishing to Wit
Capital Corporation (a) three copies thereof and (b) a statement as to
the actual or proposed use, identifying each class of persons
(institutional clients, retail clients, etc.) who have received or will
receive the report or memorandum, the number of copies distributed to
each such class and the period of distribution.
22
(5) If the Securities are to be issued under an indenture
qualified under the Trust Indenture Act of 1939, as amended:
(a) Neither you nor any of your directors, officers
or partners is an affiliate (as defined in Rule 0-2 or any
successor provision under such Act) of the trustee or trustees
under such indenture or their respective parents (if any), and
neither such trustees nor their respective parents (if any)
nor any of their respective directors or executive officers is
a director, officer, partner, employee, appointee or
representative of yours, as those terms are defined in such
Act or in the relevant instructions to Form T-1 thereunder;
(b) Neither you nor any of your directors, partners
or executive officers, separately or as a group, owns
beneficially more than one percent of any class of voting
securities of either of such trustees or their respective
parents (if any); and
(c) If you are a corporation, you do not have
outstanding nor have you assumed or guaranteed any securities
otherwise than in your corporate name, and neither of such
trustees nor their respective parents (if any) is a beneficial
owner or pledgee of any of such securities.
(6) Other than as stated or to be stated in the Agreement, the
Wit Capital Corporation Master Selected Dealer Agreement or the
proposed Underwriting Agreement, you do not know of or have reason to
believe that (a) there are any discounts or commissions to be allowed
or paid to underwriters or any other items that would be deemed by the
NASD to constitute underwriting compensation for purposes of the NASD's
Rules of Fair Practice, (b) there are any discounts or commissions to
be allowed or paid to dealers, including all cash, securities,
contracts or other considerations to be received by any dealer in
connection with the sale of the Securities, (c) there is an intention
to over-allot or (d) the price of any security may be stabilized to
facilitate the offering of the Securities.
(7) If the issuer is a public utility: You are not a "holding
company", a "subsidiary company", or an "affiliate" of a "holding
company" or a "public-utility company", each as defined in the Public
Utility Holding Company Act of 1935, as amended.
(8) If the Offering is subject to the By-Laws, rules and
regulations of the NASD: Neither you nor any of your directors,
officers, partners or "persons associated with" you (as defined in the
By-Laws of the NASD) nor, to your knowledge, any "related person" (as
defined in the By-Laws of the NASD, which definition includes 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 broker-dealer (a) within the last eighteen
months has purchased in private transactions, or intends before, at or
within six months after the commencement of the public offering of the
Securities, to purchase in private transactions, any securities
(including warrants or
23
options) of the issuer, its parent (if any), any guarantor or insurer
or any subsidiary of any of the foregoing or (b) within the last twelve
months had any dealings with the issuer, any guarantor or insurer of
the Securities or any subsidiary or controlling person of any of the
foregoing (other than with respect to the Agreement or the proposed
Underwriting Agreement) as to which documents or information are
required to be filed with the NASD pursuant to its Interpretation with
Respect to Review of Corporate Financing.
(9) You may, in accordance with and pursuant to the financial
responsibility requirements of Rule 15c3-1 (or any successor provision)
under the Exchange Act, agree to purchase your Securities.
(10) If the issuer of Securities offered in a Registered
Offering was not, immediately prior to the filing of the registration
statement with respect to such Securities, subject to the requirements
of Section (13a) or 15(d) of the Exchange Act: You will not sell
Securities to any accounts over which you exercise discretionary
authority.
24