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EXHIBIT 1.2
MASTER AGREEMENT AMONG UNDERWRITERS
550,000 SHARES
AMCOR CAPITAL CORPORATION
$10.00 SERIES A 9% CONVERTIBLE PREFERRED STOCK
___________, ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇ SECURITIES, INC.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
We understand that you act as Representative of the several
underwriters (the "Underwriters") of the offering of 550,000 Shares of its
$10.00 Series A 9% Convertible Preferred Stock, and the underwriters' over
allotment option to purchase 82,500 additional Shares, by AMCOR Capital
Corporation, a Delaware corporation (the "Offering"). This Agreement shall
apply to the Offering in which we elect to act as an underwriter and our
participation as an underwriter in the Offering shall be subject to the
provisions of this Agreement. At or prior to the time of an offering, you will
advise us by written notice, as to the expected offering date, the expected
closing date, the initial offering price, the interest or dividend rate (or the
method by which such rate is to be determined), the conversion price, the
underwriting discount, the management fee, the selling concession and the
reallowance, except that if the offering price of the securities is to be
determined as contemplated by Rule 430A under the Securities Act of 1933 (such
procedure being hereinafter referred to as "430A Pricing"), you shall so advise
us and shall specify the maximum underwriting discount, management fee and
selling concession. Such information may be conveyed by you in one or more
communications (such communications received by us with respect to the Offering
are hereinafter collectively referred to as the "Invitation"). You will notify
us, in the Invitation, of such option and of our maximum obligation upon
exercise of such option.
This Agreement, as it may be amended or supplemented by the
Invitation, shall become effective with respect to our participation in the
Offering if you receive our oral or 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 will constitute our confirmation that, except as otherwise stated in
such Acceptance, each statement included in the Master Underwriters'
Questionnaire set forth as Exhibit A hereto (or otherwise furnished to us) is
correct. AMCOR Capital Corporation, the issuer of the securities in the
Offering made pursuant to this Agreement, is hereinafter referred to as the
"Issuer". If the Underwriting Agreement does not provide for an over-allotment
option, the securities to be purchased are hereinafter referred to as the
"Securities"; if the Underwriting Agreement provides for an over-allotment
option, the securities the Underwriters (as hereinafter defined) are initially
obligated to purchase pursuant to the Underwriting Agreement are hereinafter
called the "Initial Securities" and any additional securities which may be
purchased upon exercise of the over-allotment option are hereinafter called the
"Option Securities", with the Initial Securities and all or any part of the
Option Securities being hereinafter collectively referred to as the
"Securities". Any underwriters of Securities under this Agreement, including
the Representatives (as hereinafter defined),
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are hereinafter collectively referred to as the "Underwriters". All references
herein to "you" or to the "Representatives" shall mean ▇▇▇▇▇▇ ▇▇▇▇▇ Securities,
Inc. and the other firms, if any, which are named as Representatives in the
Invitation. This Agreement may be supplemented or amended by you by written
notice to us and, except for supplements or amendments set forth in an
Invitation relating to a particular offering of Securities, any such supplement
or amendment to this Agreement shall be effective with respect to the Offering
after this Agreement is so amended or supplemented.
SECTION 1. UNDERWRITING AGREEMENT; AUTHORITY OF REPRESENTATIVES. We
authorize you to execute and deliver the Underwriting Agreement and any
amendment or supplement thereto and any associated agreement (collectively
referred to herein as the "Underwriting Agreement") on our behalf with the
Issuer with respect to the Securities in such form as you determine. We will
be bound by all terms of the Underwriting Agreement as executed. We understand
that changes may be made in those who are to be Underwriters, and in the amount
of Securities to be purchased by them, but the amount of Securities to be
purchased by us in accordance with the terms of this Agreement, including the
maximum amount of Option Securities, if any, which we may become obligated to
purchase by reason of the exercise of any over-allotment option provided in the
Underwriting Agreement, shall not be changed without our consent except as
provided in the Underwriting Agreement.
As Representatives of the Underwriters, you are authorized to take
such action as you deem necessary or advisable to carry out this Agreement, the
Underwriting Agreement, and the purchase and sale of the Securities, and to
agree to any waiver or modification of any provision of the Underwriting
Agreement. To the extent applicable, you are also authorized to determine (i)
the amount of Option Securities, if any, to be purchased by the Underwriters
pursuant to any over-allotment option and (ii) with respect to offerings using
430A Pricing, the initial offering price and the price at which the Securities
are to be purchased in accordance with the Underwriting Agreement. It is
understood and agreed that ▇▇▇▇▇▇ ▇▇▇▇▇ Securities, Inc. may act on behalf of
all Representatives.
SECTION 2. REGISTRATION STATEMENT AND PROSPECTUS. You will furnish
to us, to the extent made available to you by the Issuer, copies of any
registration statement or registration statements relating to the Securities
which may be filed with the Securities and Exchange Commission (the
"Commission") pursuant to the 1933 Act and of each amendment thereto (excluding
exhibits but including any documents incorporated by reference therein). Such
registration statement(s) as amended, and the prospectus(es) relating to the
sale of Securities by the Issuer constituting a part thereof, including all
documents incorporated therein by reference, as from time to time amended or
supplemented by the filing of documents pursuant to the Securities Exchange Act
of 1934 (the "1934 Act"), the 1933 Act or otherwise, are referred to herein as
the "Registration Statement" and the "Prospectus", respectively; provided
however, that a supplement to the Prospectus filed with the Commission pursuant
to Rule 424 under the 1933 Act with respect to an offering of Securities (a
"Prospectus Supplement") shall be deemed to have supplemented the Prospectus
only with respect to the Offering of Securities to which it relates.
SECTION 3. OFFERING. The sale of the securities to the public shall
commence as soon as you deem advisable. We will not sell any Securities until
they are released by you for that purpose. When notified by you that the
Securities are released for sale, we will offer, in conformity with the terms
of the Offering set forth in the Prospectus, such of the Securities to be
purchased by us as are not reserved for our account for sale to Selected
Dealers and others pursuant to Section 5 hereof. After the initial
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offering, the offering price and the concession and discount therefrom may be
changed by you by notice to the Underwriters, and we agree to be bound by any
such change.
Unless otherwise permitted in the Invitation, we will not sell any
Securities to any account over which we have discretionary authority. We will
also comply with any other restrictions which may be set forth in the
Invitation.
The initial public advertisement, if any, with respect to the
Securities shall appear on such date, and shall include the names of such of
the Underwriters, as you may determine.
SECTION 4. DELAYED DELIVERY ARRANGEMENTS. We authorize you to act on
our behalf in making all arrangements for the solicitation of offers to
purchase Securities from the Issuer pursuant to Delayed Delivery Contracts, and
we agree that all such arrangements will be made only through you (directly or
through Underwriters or Selected Dealers). You may allow to Selected Dealers
in respect to such Securities a commission equal to the concession allowed to
Selected Dealers pursuant to Section 5 hereof.
The obligations of the Underwriters shall be reduced in the aggregate
by the principal amount of Securities covered by Delayed Delivery Contacts made
by the Issuer, the obligation of each Underwriter to be reduced by the
principal amount of such Securities, if any, allocated by you to such
Underwriter. Your determination of the allocation of Securities covered by
Delayed Delivery Contracts among the several Underwriters shall be final and
conclusive, and we agree to be bound by any notice delivered by you to the
Issuer setting forth the amount of the reduction in our obligation as a result
of Delayed Delivery Contracts.
Upon receiving payment from the Issuer of the fee for arranging
Delayed Delivery Contracts, you will credit our account with the portion of
such fee applicable to the Securities covered by Delayed Delivery Contracts
allocated to us. You will charge our account with any commission allocated to
Selected Dealers in respect to Securities covered by Delayed Delivery Contracts
allocated to us.
SECTION 5. OFFERING TO SELECTED DEALERS AND OTHERS; MANAGEMENT OF
OFFERING. We authorize you, for our account, to reserve for sale and sell to
dealers ("Selected Dealers"), among whom any of the Underwriters may be
included, such amount of Securities to be purchased by us as you shall
determine. 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. Sales to Selected Dealers may
be made under the ▇▇▇▇▇▇ ▇▇▇▇▇ Securities, Inc. Standard Dealer Agreement, or
otherwise. The price to Selected Dealers initially shall be the offering price
less a concession not in excess of the Selected Dealers concession set forth in
the Invitation. Selected Dealers shall be actually engaged in the investment
banking or securities business and shall be either (i) members in good standing
of the National Association of Securities Dealers, Inc. (the "NASD") or (ii)
dealers with their principal place of business located outside the United
States, its territories and its possessions and not registered under the 1934
Act who agree to make no sales within the United States, its territories or its
possessions or to persons who are nationals thereof or residents therein, or
(iii) banks that are not eligible for membership in the NASD. Each Selected
Dealer shall
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agree to comply with the provisions of Section 2740 of the Conduct Rules of the
NASD (the "Conduct Rules"), and each foreign Selected Dealer or bank who is not
a member of the NASD also shall agree to comply with the NASD's interpretation
with respect to free-riding and withholding, to comply, as though it were a
member of the NASD, with the provisions of Sections 2730 and 2750 of the
Conduct Rules, and to comply with Section 2420 of the Conduct Rules as that
section applies to a non-member foreign dealer or bank.
With your consent, the Underwriters may allow, and Selected Dealers
may reallow, a discount on sales to any dealer who meets the above NASD
requirements in an amount not in excess of the amount set forth in the
Invitation. Upon your request, we will advise you of the identity of any
dealer to whom we allow such a discount and any Underwriter or Selected Dealer
from whom we receive such a discount.
We also authorize you, for our account, to reserve for sale and to
sell Securities to be purchased by us at the offering price to others,
including institutions and retail purchasers. Except for such sales which are
designated by a purchaser to be for the account of a particular Underwriter,
such reservations and sales shall be made as nearly as practicable in
proportion to our underwriting obligation, unless you agree to a smaller
proportion at our request.
At or before the time the Securities are released for sale, you shall
notify us of the amount of Securities which have not been reserved for our
account for sale to Selected Dealers and others and which is to be retained by
us for direct sale.
We will from time to time, upon your request, report to you the amount
of Securities retained by us for direct sale which remains unsold and, upon
your request, delivery 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 offering price less an amount determined by you not in excess
of the concession to Selected Dealers. You may also repurchase Securities from
other Underwriters and Selected Dealers, for the account of one or more of the
Underwriters, at prices determined by you not in excess of the offering price
less the concession to Selected Dealers.
You may from time to time deliver to any Underwriter, for carrying
purposes or for sale by such Underwriter, any of the Securities then reserved
for sale to, but not purchased and paid for by, Selected Dealers or others as
above provided, but to the extent that Securities are so delivered for sale by
such Underwriter, the amount of Securities then reserved for the account of
such Underwriter shall be correspondingly reduced. Securities delivered for
carrying purposes only shall be redelivered to you upon demand.
The Underwriters and Selected Dealers may, with your consent, purchase
Securities from and sell Securities to each other at the offering price less a
concession not in excess of the concession to Selected Dealers.
SECTION 6. REPURCHASE OF SECURITIES NOT EFFECTIVELY PLACED. In
recognition of the importance of distributing the Securities to bona fide
investors, we agree to repurchase on demand any Securities sold by us, except
through you, which are purchased by you in the open market or otherwise during
a period terminating as provided in Section 16, at a price equal to the cost of
such purchase, including
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accrued interest, amortization of original issue discount or dividends,
commissions and transfer and other taxes, if any, on redelivery. The
certificates delivered to us need not be identical certificates delivered to
you in respect of the Securities purchased. In lieu of requiring repurchase,
you may, in your discretion, sell such Securities for our account at such
prices, upon such terms and to such persons, including any of the other
Underwriters, as you may determine, charging the amount of any loss and
expense, or crediting the amount of any net profit, resulting from such sale,
to our account, or you may charge our account with an amount determined by you
not in excess of the concession to Selected Dealers.
SECTION 7. STABILIZATION AND OVER-ALLOTMENT. In order to facilitate
the sale of the Securities, we authorize you, in your discretion, to purchase
and sell Securities or any other securities of the Issuer or any guarantor of
the Securities specified in the Invitation in the open market or otherwise, for
long or short account, at such prices as you may determine, and, in arranging
for sales to Selected Dealers or others, to over-allot. You may liquidate any
long position or cover any short position incurred pursuant to this Section at
such prices as you may determine. You shall make such purchases and sales
(including over-allotments) for the accounts of the Underwriters as nearly as
practicable in proportion to their respective underwriting obligations. It is
understood that you may have made purchases of securities of the Issuer or
securities of any guarantor of the Securities for stabilizing purposes prior to
the time when we become an Underwriter, and we agree that any such securities
so purchased shall be treated as having been purchased for the respective
accounts of the Underwriters pursuant to the foregoing authorization At the
close of business on any day, the net commitment, either for long or short
account, resulting from such purchases or sales (including over-allotments)
shall not exceed 20% (or such other amount as may be specified in the
Invitation) of our underwriting obligation, except that such percentage may be
increased with the approval of a majority in interest of the Underwriters. We
will take up at cost on demand any Securities or other securities of the Issuer
or any securities of any guarantor of the Securities so sold or over-allotted
for our account, including accrued interest, amortization of original issue
discount or dividends, and we will pay to you on demand the amount of any
losses or expenses incurred for our account pursuant to this Section. In the
event of default by any Underwriter in respect of its obligations under this
Section, each non-defaulting Underwriter shall assume its share of the
obligations of such defaulting Underwriter in the proportion that its
underwriting obligation bears to the underwriting obligations of all
non-defaulting Underwriters without relieving such defaulting Underwriter of
its liability hereunder.
If you effect any stabilizing purchase pursuant to this Section 7, you
shall promptly notify us of the date and time of the first stabilizing purchase
and the date and time when stabilizing was terminated. You shall prepare and
maintain such records as are required to be maintained by you as manager
pursuant to Rule 17a-2 under the 1934 Act.
SECTION 8. OPEN MARKET TRANSACTIONS. We represent and agree in
connection with the Offering of Securities that we have complied and will
comply with the provisions of Rule 10b-6 under the 1934 Act with regard to
trading in the Securities. For purposes of the foregoing sentence, we agree
that, in addition to the Securities, other securities of the Issuer or
securities of any guarantor of the Securities or the right or option to
purchase or otherwise acquire any securities of the Issuer or any securities of
any guarantor of the Securities specified in the Invitation shall be considered
securities of the same class and series as the Securities.
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SECTION 9. PAYMENT AND DELIVERY. At or before such time, on such
dates and at such places as you may specify in the Invitation, we will deliver
to you a certified or official bank check in such funds as are specified in the
Invitation, payable to the order of ▇▇▇▇▇▇ ▇▇▇▇▇ Securities, Inc. (unless
otherwise specified in the Invitation) in an amount equal to, as you direct,
either (i) the Offering price or prices plus accrued interest, amortization of
original issue discount or dividends, if any, set forth in the Prospectus less
the concession to Selected Dealers in respect of the amount of Securities to be
purchased by us in accordance with the terms of this Agreement, or (ii) the
amount set forth in the Invitation with respect to the Securities to be
purchased by us. We authorize you to make payment for our account of the
purchase price for the Securities to be purchased by us against delivery to you
of such Securities (which may be in temporary form), and the difference between
such purchase price of the Securities and the amount of our funds delivered to
you therefor shall be credited to our account.
Delivery to us of Securities retained by us for direct sale shall be
made by you as soon as practicable after your receipt of the Securities. Upon
termination of the provisions of this Agreement as provided in Section 16
hereof, you shall deliver to us any Securities reserved for our account for
sale to Selected Dealers and others which remain unsold at that time.
You are authorized to make appropriate arrangements for payment for
and/or delivery through the facilities of a depository or similar facility, the
Securities to be purchased by us, or, if we are not a member, settlement may be
made through a correspondent that is a member pursuant to our timely
instructions to you.
Upon receiving payment for Securities sold for our account to Selected
Dealers and others, you shall remit to us an amount equal to the amount paid by
us to you in respect of such Securities and credit or charge our account with
the difference, if any, between such amount and the price at which such
Securities were sold.
In the event that the Underwriting Agreement 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.
SECTION 10. MANAGEMENT COMPENSATION. None.
SECTION 11. AUTHORITY TO BORROW. We authorize you to advance your
own funds for our account, charging current interest rates, or to arrange loans
for our account or the account of the Underwriters, as you may deem necessary
or advisable for the purchase, carrying, sale and distribution of the
Securities. You may execute and deliver any notes or other instruments
required in connection therewith and may hold or pledge as security therefor
all or any part of the Securities which we or such Underwriters have agreed to
purchase. The obligations of the Underwriters under loans arranged on their
behalf shall be several in proportion to their respective participations in
such loans, and not joint. Any lender is authorized to accept your
instructions as to the disposition of the proceeds of any such loans. You
shall credit each Underwriter with the proceeds of any loans made for its
account.
SECTION 12. LEGAL QUALIFICATIONS. You shall inform us, upon request,
of the states and other jurisdictions of the United States in which it is
believed that the Securities are qualified for sale under, or are exempt from
the requirements of, their respective securities laws, but you assume no
responsibility with respect to our right to sell securities in any
jurisdiction.
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If we propose to offer Securities outside the United States, its
territories or its possessions, we will take, at our own expense, such action,
if any, as may be necessary to comply with the laws of each foreign
jurisdiction in which we propose to offer Securities.
SECTION 13. MEMBERSHIP IN NATIONAL ASSOCIATION OF SECURITIES DEALERS,
FOREIGN UNDERWRITERS AND BANKS. We understand that you are a member in good
standing of the NASD. We confirm that we are actually engaged in the
investment banking or securities business and are either (i) a member in good
standing of the NASD or (ii) a dealer with its principal place of business
located outside the United States, its territories and its possessions and not
registered under the 1934 Act who hereby agrees to make no sales within the
United States, its territories or its possessions or to persons who are
nationals thereof or residents therein (except that we may participate in sales
to Selected Dealers and others under Section 5 of this Agreement) or (iii) a
bank not eligible for membership in the NASD. We hereby agree to comply with
Section 2740 of the Conduct Rules, and if we are a foreign dealer or bank and
not a member of the NASD we also hereby agree to comply with the NASD's
interpretation with respect to free-riding and withholding, to comply, as
though we were a member of the NASD, with the provisions of Sections 2730 and
2750 of the Conduct Rules, and to comply with Section 2420 of the Conduct Rules
as that Section applies to a non-member foreign dealer or bank.
SECTION 14. DISTRIBUTION OF PROSPECTUSES. We are familiar with
Securities Act of 1933 Release No. 4968 and Rule 15c2-8 under the 1934 Act,
relating to the distribution of preliminary and final prospectuses and we
confirm that we will comply therewith, to the extent applicable, in connection
with any sale of Securities. You shall cause to be made available to us, to
the extent made available to you by the Issuer, such number of copies of the
Prospectus as we may reasonably request for purposes contemplated by the 1933
Act, the 1934 Act and the rules and regulations thereunder.
Our acceptance of an Invitation relating to the Offering shall
constitute our agreement that, if requested by you, we will furnish a copy of
any amendment to a preliminary or final Prospectus to each person to whom we
shall have furnished a previous preliminary or final Prospectus. Our
Acceptance shall constitute our confirmation that we have delivered, and our
agreement that we will deliver, all preliminary and final Prospectuses required
for compliance with the applicable federal and state laws and the applicable
rules and regulations of any regulatory body promulgated thereunder governing
the use and distribution of Prospectuses by underwriters and any additional
instructions contained in the Invitation and, to the extent consistent with
such laws, rules and regulations, our Acceptance shall constitute our
confirmation that we have delivered, and our agreement that we will deliver,
all preliminary and final Prospectuses which would be required if the
provisions of Rule 15c2-8 (or any successor provision) under the 1934 Act
applied to the Offering.
SECTION 15. NET CAPITAL. The incurrence by us of our obligations
hereunder and under the Underwriting Agreement in connection with the Offering
of the Securities will not place us in violation of the net capital
requirements of Rule 15c3-1 under the 1934 Act, or, if we are a financial
institution subject to regulation by the Board of Governors of the Federal
Reserve System, the Comptroller of the Currency or the Federal Deposit
Insurance Corporation, will not place us in violation of the capital
requirements of such regulator or any other regulator to which we are subject.
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SECTION 16. TERMINATION. With respect to the Offering pursuant to
this Agreement, all limitations in this Agreement on the price at which the
Securities may be sold, the period of time referred to in Section 6, the
authority granted by the first sentence of Section 7 hereof, and the
restrictions contained in Section 8 hereof shall terminate at the close of
business on the 45th day after the commencement of the Offering of such
Securities. You may terminate any or all of such provisions at any time prior
thereto by notice to the Underwriters. All other provisions of this Agreement
shall remain operative and in full force and effect with respect to the
Offering.
SECTION 17. EXPENSES AND SETTLEMENT. You may charge our account with
any transfer taxes on sales of Securities made for our account and with our
proportionate share (based upon our underwriting obligation) of all other
expenses incurred by you under this Agreement or otherwise in connection with
the purchase, carrying, sale or distribution of the Securities. With respect
to the Offering, the respective accounts of the Underwriters shall be settled
as promptly as practicable after the termination of all the provisions of this
Agreement as provided in Section 16 hereof, but you may reserve such amounts as
you may deem advisable for additional expenses. Your determination of the
amount to be paid to or by us shall be conclusive. You may at any time make
partial distributions of credit balances or call for payment of debit balances.
Any of our funds in your hands may 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 with respect
to the Offering.
SECTION 18. INDEMNIFICATION. With respect to the Offering, we will
indemnify and hold harmless each other Underwriter and each person, if any, who
controls each other Underwriter within the meaning of Section 15 of the 1933
Act, to the extent that and on the terms upon which we agree to indemnify and
hold harmless the Issuer and other specified persons as set forth in the
Underwriting Agreement.
SECTION 19. CLAIMS AGAINST UNDERWRITERS. With respect to the
Offering, if at any time any person other than an Underwriter assets a claim
(including any commenced or threatened investigation or proceeding by any
governmental agency or body) against one or more of the Underwriters or against
you as Representatives of the Underwriters arising out of an alleged untrue
statement or omission in the Registration Statement (or any amendment thereto)
or in any preliminary prospectus or the Prospectus or any amendment or
supplement thereto, or relating to any transaction contemplated by this
Agreement, we authorize you to make such investigation, to retain such counsel
for the Underwriters and to take such action in the defense of such claim as
you may deem necessary or advisable. You may settle such claim with the
approval of a majority in interest of the Underwriters. We will pay our
proportionate share (based upon our underwriting obligation) of all expenses
incurred by you (including the fees and expenses of counsel for the
Underwriters) as incurred, in investigating and defending against such claim
and our proportionate share of the aggregate liability incurred by all
Underwriters in respect to such claim (after deducting any contribution or
indemnification obtained pursuant to the Underwriting Agreement, or otherwise,
from persons other than Underwriters), whether such liability is the result of
a judgment against one or more of the Underwriters or the result of any such
settlement. Any Underwriter may retain separate counsel at its own expense. A
claim against or liability incurred by a person who controls an Underwriter
shall be deemed to have been made against or incurred by such Underwriter. In
the event of default by any Underwriter in respect
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of its obligations under this Section, the non-defaulting Underwriters shall be
obligated to pay the full amount thereof in the proportions that their
respective underwriting obligations bear to the underwriting obligations of all
non-defaulting Underwriters without relieving such defaulting Underwriter of
its liability hereunder.
SECTION 20. DEFAULT BY UNDERWRITERS. Default by any Underwriter in
respect of its obligations hereunder or under the Underwriting Agreement shall
not release us from any of our obligations or in any way affect the liability
of such defaulting Underwriter to the other Underwriters for damages resulting
from such default. If one or more Underwriters default under the Underwriting
Agreement, if provided in such Underwriting Agreement, you may (but shall not
be obligated to) arrange for the purchase by others which may include
yourselves or other non-defaulting Underwriters, of all or a portion of the
Securities not taken up by the defaulting Underwriters.
In the event that such arrangements are made, the respective
underwriting obligations of the non-defaulting Underwriters and the amounts of
the Securities to be purchased by others, if any, shall be taken as the basis
for all rights and obligations hereunder; but this shall not in any way affect
the liability of any defaulting Underwriter to the other Underwriters for
damages resulting from its default, nor shall any such default relieve any
other Underwriter of any of its obligations hereunder or under the Underwriting
Agreement except as herein or therein provided. In addition, in the event of
default by one or more Underwriters in respect of their obligations under the
Underwriting Agreement to purchase the Securities agreed to be purchased by
them thereunder, and to the extent that arrangements shall not have been made
by you for any person to assume the obligations of such defaulting Underwriter
or Underwriters, we agree, if provided in the Underwriting Agreement, to assume
our proportionate share, based upon our underwriting obligation, of the
obligations of each such defaulting Underwriter (subject to the limitations
contained in the Underwriting Agreement) without relieving such defaulting
Underwriter of its liability therefor.
In the event of default by one or more Underwriters in respect of
their obligations under this Agreement to take up and pay for any securities
purchased, or to deliver any securities sold or over-allotted, by you for the
respective accounts of the Underwriters, or to bear their proportion of
expenses or liabilities pursuant to this Agreement, and to the extent that
arrangements shall not have been made by you for any persons to assume the
obligations of such defaulting Underwriter or Underwriters, we agree to assume
our proportionate share, based upon our respective underwriting obligation, of
the obligations of each defaulting Underwriter without relieving any such
defaulting Underwriter of its liability therefor.
SECTION 21. LEGAL RESPONSIBILITY. As Representatives of the
Underwriters, you shall have no liability to us, except for your lack of good
faith and for obligations assumed by you in this Agreement and except that we
do not waive any rights that we may have under the 1933 Act or the 1934 Act or
the rules and regulations thereunder. No obligations not expressly assumed by
you in this Agreement shall be implied herefrom.
Nothing herein contained shall constitute the Underwriters an
association, or partners, with you, or with each other, or, except as otherwise
provided herein or in the Underwriting Agreement, render any Underwriter liable
for the obligations of any other Underwriter; and the rights, obligations
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and liabilities of the Underwriters are several in accordance with their
respective underwriting obligations, and not joint.
If the Underwriters are deemed to constitute a partnership for federal
income tax purposes, we elect to be excluded from the application of Subchapter
K, Chapter 1, Subtitle A, of the Internal Revenue Code of 1986, as amended (the
"Code"), and agree not to take any position inconsistent with such election,
and you, as Representatives, 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 and to act as Tax Matters Partner, within the
meaning of the Code and Regulations promulgated thereunder, for the
Partnership.
SECTION 22. NAME AND ADDRESS. Unless we have promptly notified you
in writing otherwise, our name as it should appear in the Prospectus and our
address are set forth on the signature pages hereof.
SECTION 23. NOTICES. Any notice from you shall be deemed to have
been duly given if mailed or transmitted to us at our address appearing below.
SECTION 24. GOVERNING LAW. This Agreement shall be governed by the
laws of the State of California applicable to agreements made and to be
performed in said State.
SECTION 25. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts, each of which when taken together,
shall be deemed a fully executed agreement between the parties.
Please confirm this Agreement and deliver a copy to us.
Very truly yours,
_____________________________________
Name of Firm
By:__________________________________
Authorized Officer or Partner
_____________________________________
Address
_____________________________________
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_____________________________________
CONFIRMED AS OF THE DATE
FIRST ABOVE WRITTEN.
▇▇▇▇▇▇ ▇▇▇▇▇ SECURITIES, INC.
By:___________________________
____________, 1997
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