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Exhibit h.4
Exhibit C
February __, 1998
1,000,000 Shares
Sirrom Capital Corporation
Share of Common Stock, No Par Value
INTERNATIONAL DEALER AGREEMENT
February __, 1998
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XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
THE XXXXXXXX-XXXXXXXX COMPANY LLC
X.X. XXXXXXXX & CO.
SUNTRUST EQUITABLE SECURITIES CORPORATION
c/o MORGAN XXXXXXX & CO. INTERNATIONAL LIMITED
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs:
We understand that Sirrom Capital Corporation, a Tennessee corporation
(the "Company), proposes to issue and sell to the several Underwriters (as
defined below) an aggregate of 5,000,000 shares (the "Firm Shares") of its
Common Stock, no par value ("Common Stock") pursuant to an underwriting
agreement (the "Underwriting Agreement") with you as representatives (the
"International Representatives") of the international underwriters named in
Schedule III thereto (the "International Underwriters"), and with Xxxxxx Xxxxxxx
& Co. Incorporated, The Xxxxxxxx-Xxxxxxxx Company LLC, X.X. Xxxxxxxx & Co. and
SunTrust Equitable Securities Corporation as representatives (the "U.S.
Representatives") of the U.S. underwriters (the "U.S. Underwriters"). The Firm
Shares to be sold to the several U.S. Underwriters and to the several
International Underwriters shall hereinafter be referred to, respectively, as
the U.S. Firm Shares and the International Shares. The International
Underwriters and the U.S. Underwriters are hereinafter collectively referred to
as the Underwriters.
In addition, the several U.S. Underwriters will have an option to
purchase from certain shareholders of the Company (the "Selling Shareholders")
an additional 750,000 shares (the "Additional Shares") to provide for
over-allotments. The term "U.S. Shares" shall mean the U.S. Firm Shares and the
Additional Shares. The U.S. Shares and the International Shares are hereinafter
collectively referred to as the Shares.
We acknowledge receipt of the Prospectus dated February __, 1998
(hereinafter called the international prospectus) relating to the offering of
the International Shares.
We understand that the International Underwriters are severally
offering, through
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you, certain of the Shares for sale to certain dealers at the offering price of
U.S. $____ less a concession not in excess of U.S. $____ under the offering
price and that any International Underwriter may allow, and dealers may reallow,
a concession not in excess of U.S. $____ under the offering price to other
International Underwriters or to other dealers who enter into an agreement in
this form.
We hereby agree with you as follows with respect to any purchase of
Shares from you or from any other International Underwriter or from any dealer
at a concession from the offering price.
In purchasing Shares, we will rely only on the international prospectus
and on no other statements whatsoever, written or oral.
I.
We understand that no action has been or will be taken in any
jurisdiction by the International Underwriters or the Company that would permit
a public offering of the Shares, or possession or distribution of the
international prospectus, in preliminary or final form, in any jurisdiction
where, or in any circumstances in which, action for that purpose is required,
other than the United States. We agree that we will comply with all applicable
laws and regulations, and make or obtain all necessary filings, consents or
approvals, in each jurisdiction in which we purchase, offer, sell or deliver
Shares (including, without limitation, any applicable requirements relating to
the delivery of the international prospectus, in preliminary or final form), in
each case at our own expense. In connection with sales of and offers to sell
Shares made by us, we will either furnish to each person to whom any such sale
or offer is made a copy of the then current international prospectus (in
preliminary or final form and as then amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), or inform such
person that such international prospectus will be made available upon request
and we will keep an accurate record of the names and addresses of all persons to
whom we give copies of the registration statement relating to the offering of
the Shares, the international prospectus, in preliminary or final form, or any
amendment or supplement thereto, and, when furnished with any subsequent
amendment to such registration statement, any subsequent prospectus or any
medium outlining changes in the registration statement or any prospectus, we
will upon request of the International Representatives, promptly forward copies
thereof to such persons or inform such persons that such amendment, subsequent
prospectus or other medium will be made available upon request.
We will not give any information or make any representation other than
as contained in the international prospectus, or act for the Company, any
Selling Shareholder, any International Underwriter or you.
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We represent and agree that, except for (x) sales between the U.S.
Underwriters and the International Underwriters pursuant to Article I of the
Agreement Between U.S. and International Underwriters of even date herewith
(hereinafter called the Agreement Between U.S. and International Underwriters)
and (y) stabilization transactions contemplated in Article IV of the Agreement
Between U.S. and International Underwriters conducted through the U.S.
Representatives as part of the distribution of the Shares, (a) we are not
purchasing and have not purchased and will not purchase any of the Shares for
the account of any United States or Canadian Person and (b) we have not offered
or sold, and will not offer or sell, directly or indirectly, any of the Shares
or distribute any prospectus relating to the Shares, in the United States or
Canada or to any United States or Canadian Person and any dealer to whom we may
sell any of the Shares will represent that it is not purchasing any of the
Shares for the account of any United States or Canadian Person and will agree
that it will not offer or resell such Shares directly or indirectly in the
United States or Canada or to any United States or Canadian Person or to any
other dealer who does not so represent and agree. "United States or Canadian
Person" shall mean any national or resident of the United States or Canada, or
any corporation, pension, profit-sharing or other trust or other entity
organized under the laws of the United States or Canada or of any political
subdivision thereof (other than a branch located outside the United States and
Canada of any United States or Canadian Person), and shall include any United
States or Canadian branch of a person who is otherwise not a United States or
Canadian Person. "United States" shall mean the United States of America, its
territories, its possessions and all areas subject to its jurisdiction. Our
agreement set forth in this paragraph shall terminate upon the earlier of (a)
notice from you to such effect and (b) 30 days after the date of the initial
offering of the Shares, unless you have given notice that the distribution of
the Shares has not yet been completed. If such latter notice is given, the
agreement set forth in this paragraph shall survive until the earlier of (x) the
notice of termination referred to in (a) above and (y) 30 days after the date of
any notice that the distribution of the Shares has not yet been completed.
We further represent and agree that we have not offered or sold and
agree not to offer or sell, directly or indirectly, in Japan or to or for the
account of any resident thereof, any of the Shares acquired in connection with
the distribution contemplated hereby, except for offers or sales to Japanese
International Underwriters or dealers and except pursuant to any exemption from
the registration requirements of the Securities and Exchange Law and other
relevant laws and regulations of Japan. We further agree to send to any dealer
who purchases from us any of such Shares a notice stating in substance that, by
purchasing such Shares, such dealer represents and agrees that it has not
offered or sold, and will not offer or sell, any of such Shares, directly or
indirectly, in Japan or to or for the account of any resident thereof, except
for offers or sales to Japanese International Underwriters or dealers and except
pursuant to any exemption from the registration requirements of the Securities
and Exchange Law and other relevant laws and regulations of Japan, and that such
dealer will send to any other dealer to whom it sells any of such Shares a
notice containing substantially the same statement as is contained in this
sentence.
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We further represent and agree that (i) we have not offered or sold
and, prior to the date six months after the closing date for the sale of the
Firm Shares to the Underwriters, will not offer or sell, any Shares to persons
in the United Kingdom except to persons whose ordinary activities involve them
in acquiring, holding, managing or disposing of investments (as principal or
agent) for the purposes of their businesses or otherwise in circumstances which
have not resulted and will not result in an offer to the public in the United
Kingdom within the meaning of the Public Offers of Securities Regulations 1995;
(ii) we have complied and will comply with all applicable provisions of the
Financial Services Xxx 0000 with respect to anything done by us in relation to
the Shares in, from or otherwise involving the United Kingdom; and (iii) we have
only issued or passed on and will only issue or pass on in the United Kingdom
any document received by us in connection with the offering of the Shares to a
person who is of a kind described in Article 11(3) of the Financial Services Xxx
0000 (Investment Advertisements) (Exemptions) Order 1996 or is a person to whom
such document may otherwise lawfully be issued or passed on.
We represent that we are a foreign bank or dealer not eligible for
membership in the U.S. National Association of Securities Dealers, Inc.
(hereinafter called the NASD), and we agree not to offer to sell or sell any
Shares in, or to persons who are nationals or residents of, the United States,
except for offers and Shares referred to in clause (x) of the third paragraph of
this Article I. In making sales of Shares, we agree to comply with the NASD's
Interpretation with Respect to Free-Riding and Withholding (IM-2110-1) and Rules
2730, 2740 and 2750 of the NASD Conduct Rules as though we were a member in good
standing of the NASD and Rule 2420 of the NASD Conduct Rules as it applies to a
non-member broker or dealer in a foreign country.
We agree that we will not, during the period continuing until the
International Representatives shall have notified us of the completion of the
distribution of the Shares, for our own account or the account of a customer,
offer, bid for, buy, sell, deal, trade in or attempt to induce any person to bid
for or buy any Covered Security, except (a) as provided in the Agreement Among
International Underwriters, the Agreement between U.S. and International
Underwriters, this Agreement or the Underwriting Agreement, (b) in brokerage
transactions on unsolicited orders which have not resulted from activities on
our part in connection with the solicitation of purchases and which are executed
by us in the ordinary course of our brokerage business, (c) in market making
transactions on Nasdaq or any similar market or quotation system executed by us
in the ordinary course of our business so long as our bids and purchases are
made consistent with the pricing restrictions set forth in Rule 103 of
Regulation M of the U.S. Securities and Exchange Commission ("REGULATION M") and
the volumes of such transactions are consistent with our past practice as a
market maker, (d) in basket transactions that meet the standards set forth in
Rule 101(b)(6) of Regulation M, (e) that we may convert, exchange or exercise
any security owned by us prior to the commencement of this restriction and that
we may sell any security obtained upon any such conversion, exchange or
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exercise, (f) that we may deliver securities owned by us upon the exercise of
any option written by us as permitted by the provisions set forth herein, (g)
that on or after the date of the initial public offering of the Shares, we may
execute covered writing transactions for the accounts of customers in options to
acquire Common Stock, when such transaction are covered by Shares and (h) that
we may engage in principal purchases or sales with the intent of offsetting the
market risk of principal positions in over-the-counter derivatives on solicited
orders that were executed by us prior to the commencement of this restriction,
and on unsolicited orders that were executed by us at any time, so long as such
orders were executed by us in the ordinary course of our principal
over-the-counter derivatives business. "COVERED SECURITY" means (a) the Common
Stock and (b) any securities convertible into or exercisable or exchangeable for
the Common Stock.
An opening uncovered writing transaction in options to acquire Common
Stock for our account or for the account of a customer shall be deemed, for
purposes of this Article I, to be a sale of Common Stock which is not
unsolicited. The term "opening uncovered writing transaction in options to
acquire" as used above means a transaction where the seller intends to become a
writer of an option to purchase any Common Stock which he does not own. An
opening uncovered purchase transaction in options to sell Common Stock for our
account or for the account of a customer shall be deemed, for purposes of this
paragraph, to be a sale of Common Stock which is not unsolicited. The term
"opening uncovered purchase transaction in options to sell" as used above means
a transaction where the purchaser intends to become an owner of an option to
sell Common Stock which he does not own.
We represent that we have not participated, since we were invited to
participate in the offering of the Shares, in any transaction prohibited by this
Article I and that we have at all times complied and agree that we will at all
times comply with the provisions of Regulation M applicable to this offering.
We agree to indemnify and hold harmless the Company, each Selling
Shareholder, each Underwriter and each person controlling the Company or any
Underwriter from and against any and all losses, claims, damages and liabilities
(including fees and disbursements of counsel) arising from any breach by us of
any of the provisions of this Article I.
II.
Shares purchased by us at a concession from the offering price shall be
promptly offered upon the terms set forth in the international prospectus or for
sale at a concession not in excess of the reallowance under the offering price
to any International Underwriter or to any other dealer who enters into an
agreement with you in this form with respect to this offering that, among other
things, sets forth such dealer's agreement that it is not purchasing Shares for
the account of any United
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States or Canadian Persons and that it will not offer or resell Shares in the
United States and Canada. Prior to offering Shares to any dealer at the public
offering price less the reallowance, you must either ascertain that such dealer
has entered into such an agreement or assure that such dealer will enter into
such an agreement.
We agree to advise you from time to time upon request, prior to the
termination of this Agreement, of the number of Shares remaining unsold which
were purchased by us from you or from any other International Underwriter or
dealer at a concession from the offering price and, on your request, we will
resell to you any such Shares remaining unsold at the purchase price thereof if,
in your opinion, such Shares are needed to make delivery against sales made to
others.
If prior to the termination of this Agreement (or prior to such earlier
date as you have determined) a U.S. Representative or International
Representative purchases or contracts to purchase in the open market or
otherwise any Shares which were purchased by us from you or from any other
International Underwriter or dealer at a concession from the offering price
(including any Shares represented by certificates which may have been issued on
transfer or in exchange for certificates originally representing such Shares),
and which Shares were therefore not effectively placed for investment by us, we
authorize you either to charge our account with an amount equal to such
concession which shall be credited against the cost of such Shares, or to
require us to repurchase such Shares at a price equal to the total cost of such
purchase, including any commissions and any taxes on redelivery.
We have not offered or sold, and we will not offer or sell, directly or
indirectly, Shares that were purchased by us from you or from any other
International Underwriter or dealer at a concession from the offering price
(including any Shares represented by certificates which may have been issued on
transfer or in exchange for certificates originally representing such Shares) to
any person at less than the offering price, other than to (i) U.S. Underwriters
pursuant to Article I of the Agreement Between U.S. and International
Underwriters or (ii) other International Underwriters or to dealers who have
entered into International Dealer Agreements with the International
Representatives (hereinafter called the International Dealer Agreements) and
then only in conformity with the provisions of Article I and at a price that is
not below the offering price. We agree that prior to offering Shares to any
dealer at the public offering price, we will either ascertain that such dealer
has entered into such an International Dealer Agreement or make arrangements to
assure that such dealer will enter into an International Dealer Agreement.
III.
If we purchase any Shares from you hereunder, we agree that such
purchases will be evidenced by your written confirmation and will be subject to
the terms and
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conditions set forth in the confirmation and in the international prospectus.
Shares purchased by us from you in connection with our participation as
dealer in the offering shall be paid for in full at (i) the offering price, (ii)
such price less the applicable concession or (iii) the price set forth or
indicated in the pricing wire, as you shall advise, in Federal or other funds
immediately available in New York City in the manner, at such time and on such
day as you may advise us against delivery of the Shares. If we are called upon
to pay the offering price for the Shares purchased by us, the applicable
concession will be paid to us, less any amounts charged to our account pursuant
to Article II above, after termination of this Agreement. Unless we promptly
give you written instruction otherwise, if transactions in the Shares may be
settled through the facilities of The Depository Trust Company, payment for and
delivery of Shares purchased by us will be made through such facilities, if we
are a member, or, if we are not a member, settlement may be made through our
ordinary correspondent who is a member.
We authorize the International Representatives as principals to
advance, or to arrange the advance of, funds to us to cover any delay in the
receipt of funds necessary for payment for the Shares to be purchased by us and
to charge, or to arrange for the charging of, interest on such funds at current
rates.
IV.
You will advise us of the date and time of termination of this
Agreement or of any designated provisions hereof. This Agreement shall in any
event terminate 30 days after the date of the initial offering of the Shares
unless sooner terminated by you, provided that you may in your discretion extend
this Agreement for a further period or periods not exceeding an aggregate of 30
days, and provided further that the provisions of Article I hereof shall survive
any termination of this Agreement.
V.
We agree that you, as International Representatives, have full
authority to take such action as may seem advisable to you in respect of all
matters pertaining to the offering of the Shares. Neither you, as International
Representatives, nor any of the International Underwriters shall be under any
liability to us for any act or omission, except in respect of obligations
expressly assumed in this Agreement.
All communications to you relating to the subject matter of this
Agreement shall be addressed to the Syndicate Department, Xxxxxx Xxxxxxx & Co.
International Limited, 00 Xxxxx Xxxxxx, Xxxxxx Wharf, Xxxxxx X00 0XX, Xxxxxxx,
and any notices to us shall be deemed to have been duly given if mailed or
telegraphed to us
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at the address shown below.
VI.
GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York and United States federal law.
Very truly yours,
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(ADDRESS)
By
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