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Exhibit h.2
January __, 1997
580,000 Shares
Sirrom Capital Corporation
AGREEMENT AMONG INTERNATIONAL UNDERWRITERS
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January __, 1997
Xxxxxx Xxxxxxx & Co. International Limited
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") and certain shareholders of the Company (the
"Selling Shareholders") named in Schedule I to the Underwriting Agreement (as
defined below), propose to issue and sell to the several Underwriters (as
defined below) an aggregate of 2,900,000 shares (the "Firm Shares") of its
Common Stock, no par value ("Common Stock") pursuant to an underwriting
agreement (the "Underwriting Agreement"), substantially in the form attached
hereto as Exhibit A, with you as representative (the "International
Representative") of the international underwriters named in Schedule III thereto
(the "International Underwriters"), and Xxxxxx Xxxxxxx & Co. Incorporated, The
Xxxxxxxx-Xxxxxxxx Company, Inc., X.X. Xxxxxxxx & Co. and Equitable Securities
Corporation as representatives (the U.S. "Representatives") of the U.S.
underwriters (the "U.S. Underwriters"). The International Underwriters and the
U.S. Underwriters are hereinafter collectively referred to as the Underwriters.
Of such Firm Shares 580,000 shares are to be offered outside
the United States and Canada by the International Underwriters (the
"International Shares") and 2,320,000 shares are to be offered by the U.S.
Underwriters in the United States and Canada (the "U.S. Firm Shares").
In addition, the several U.S. Underwriters will have an option
to purchase from the Company an additional 450,000 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 further understand that the Company has filed with the U.S.
Securities and Exchange Commission (the "Commission") a registration statement
including a prospectus relating to the Shares.
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I.
We hereby confirm our agreement with you that the
International Shares shall be purchased by you and the other several
International Underwriters, including ourselves, pursuant to the terms of and
as set forth in the Underwriting Agreement. We further understand that the
International Representative proposes to enter into an agreement with the U.S.
Representatives (the "Agreement Between U.S. and International Underwriters"),
substantially in the form attached hereto as Exhibit B, pursuant to Article I
of which, and subject to the conditions thereof, the several International
Underwriters, including ourselves, could become obligated to purchase Shares
from, or sell Shares to, the U.S. Underwriters.
We authorize you (a) to execute and deliver the Underwriting
Agreement and the Agreement Between U.S. and International Underwriters on our
behalf in substantially the forms of Exhibits A and B hereto, respectively, and
to make representations and agreements on our behalf as set forth therein, (b)
to vary the offering terms of the International Shares in effect at any time,
including the offering price, the concession and the reallowance, (c) to agree
to the price at which the International Shares are to be purchased from the
Company and the Selling Shareholders, (d) to agree, on our behalf, to any
addition to, change in or waiver of any provision of the Underwriting Agreement
(other than a change in the purchase price of the International Shares and the
respective numbers of International Shares set forth opposite our names in
Schedule III thereto) or of the Agreement Between U.S. and International
Underwriters (other than a change in the purchase price of the International
Shares pursuant to Article I thereof) and (e) to take any other action as may
seem advisable to you in respect of the offering of the International Shares.
The number of Shares set forth opposite each Underwriter's name in Schedule I
or in Schedule II of the Underwriting Agreement (or such amount increased as
provided in Section 9 of the Underwriting Agreement) is hereinafter referred to
as the Original Purchase Obligation of such Underwriter, and the ratio that
such Original Purchase Obligation of any International Underwriter bears to the
total number of International Shares, expressed as a percentage, is hereinafter
referred to as the International Underwriting Percentage of such International
Underwriter.
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II.
We authorize you to act as the Lead Managers of the offering
by the International Underwriters of the International Shares outside of the
United States and Canada and to take such action as may seem advisable to you
in respect thereof. The offering of the International Shares is to be made as
soon after the registration statement filed with the Commission relating to the
Shares becomes effective (as then amended, the "Registration Statement") as in
your judgment and the judgment of the U.S. Representatives is advisable, at the
offering price set forth in, and on the other terms and conditions as you shall
determine in accordance with, the Underwriting Agreement. The offering of the
International Shares is to be made on the terms and conditions to be set forth
in the Underwriting Agreement, the Agreement Between U.S. and International
Underwriters and in the prospectus first used to confirm sales of the
International Shares (the "International Prospectus"), whether or not filed
pursuant to Rule [497] under the U.S. Securities Act of 1933, as amended (the
"Act"). During the term of this Agreement, advertisement of the offering
outside of the United States and Canada will be made only by Xxxxxx Xxxxxxx &
Co. International Limited. Such advertisement will be made on behalf of the
International Underwriters on such dates and in such countries as Xxxxxx
Xxxxxxx & Co. International Limited shall determine.
We authorize Xxxxxx Xxxxxxx & Co. International Limited to
determine whether to purchase, and, if such determination is made, to purchase,
any Shares for the account of the International Underwriters pursuant to the
Agreement Between U.S. and International Underwriters. We further authorize
Xxxxxx Xxxxxxx & Co. International Limited to determine whether to sell, and,
if such determination is made, to sell, Shares for the account of the
International Underwriters pursuant to such Agreement.
We authorize Xxxxxx Xxxxxxx & Co. International Limited to
offer or to sell for our account, in conformity with the immediately succeeding
paragraph, to dealers selected by it (among whom may be included any
International Underwriter) such Shares purchased by us from the Company and the
Selling Shareholders or pursuant to the Agreement Between U.S. and International
Underwriters as Xxxxxx Xxxxxxx & Co. International Limited shall determine.
Sales of Shares to dealers shall be made for the account of each International
Underwriter approximately in the proportion that Shares of such International
Underwriter held by Xxxxxx Xxxxxxx & Co. International Limited for such sales
bear to the total Shares so held. Such sales shall be made pursuant
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to dealer agreements substantially in the form attached as Exhibit C hereto.
We authorize Xxxxxx Xxxxxxx & Co. International Limited to
offer or sell for our account to certain persons (other than the persons to
whom Shares are sold pursuant to the terms of the immediately preceding
paragraph) such Shares purchased by us from the Company and the Selling
Shareholders or pursuant to the Agreement Between U.S. and International
Underwriters as it shall determine at the offering price set forth in the
International Prospectus. Except for sales for the accounts of International
Underwriters designated by a purchaser, aggregate sales of Shares to such
persons shall be made for the accounts of the several International
Underwriters as nearly as practicable in their respective International
Underwriting Percentages.
Xxxxxx Xxxxxxx & Co. International Limited will advise us
promptly as to the number of Shares purchased by us that we shall retain for
direct sale. At any time prior to the termination of this Agreement, any Shares
purchased by us that are held by Xxxxxx Xxxxxxx & Co. International Limited for
sale for our account as set forth above but not sold may, upon our request and
at Xxxxxx Xxxxxxx & Co. International Limited's discretion, be released to us
for direct sale, and Shares so released to us shall no longer be deemed held
for sale by you.
From time to time prior to the termination of this Agreement,
at Xxxxxx Xxxxxxx & Co. International Limited's request, we will advise it of
the number of Shares remaining unsold that were retained by or released to us
for direct sale and of the number of Shares remaining unsold that were
delivered to us pursuant to Article III and, at Xxxxxx Xxxxxxx & Co.
International Limited's request, we will release to it any such Shares
remaining unsold for sale by it (i) for our account to dealers or certain other
persons or (ii) if in its opinion, such Shares are needed to make delivery
against sales made pursuant to Article III.
III.
We confirm that, pursuant to the Agreement Between U.S. and
International Underwriters, the International Underwriters are authorizing
Xxxxxx Xxxxxxx & Co. Incorporated to buy and sell Common Stock for the accounts
of the several Underwriters, including the International Underwriters, in the
open market or otherwise, for long or short account, on such terms as it shall
deem advisable and to over-allot in arranging sales. Any shares of Common Stock
that may have been purchased by the U.S.
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Representatives for stabilizing purposes in connection with the offering of the
Shares prior to the execution of this Agreement and the Agreement Between U.S.
and International Underwriters shall be treated as having been purchased
pursuant to this paragraph and the Agreement Between U.S. and International
Underwriters for the accounts of the several Underwriters. We authorize Xxxxxx
Xxxxxxx & Co. International Limited to over-allot in arranging sales. We
recognize that the International Primary Market Association (IPMA) limits will
not be complied with in connection with stabilization losses and expenses.
Subject to the provisions of the Agreement Between U.S. and International
Underwriters, all such purchases, sales and over-allotments for the
International Underwriters as a group shall be for the accounts of the several
International Underwriters as nearly as practicable in their respective
International Underwriting Percentages. At no time shall our net commitment
pursuant to the foregoing authorization exceed 15% of our Original Purchase
Obligation, and, in determining our net commitment for short account, there
shall be subtracted any Shares that you have agreed to purchase for our account
pursuant to Article I of the Agreement Between U.S. and International
Underwriters. On demand we will take up and pay for any shares of Common Stock
so purchased for our account and deliver against payment any shares of Common
Stock so sold or over-allotted for our account. The International Representative
agrees to notify us of the date of termination of stabilization when so notified
by Xxxxxx Xxxxxxx & Co. Incorporated pursuant to the Agreement Between U.S. and
International Underwriters.
If pursuant to the provisions of the preceding paragraph and
prior to the termination of this Agreement (or prior to such earlier date as
the International Representative may have determined), the U.S. Representatives
purchase or contract to purchase in the open market or otherwise any Shares
that were retained by or released to us for direct sale, or any Shares that may
have been issued on transfer of or in exchange for such Shares, and which
Shares were therefore not effectively placed for investment by us, we authorize
the International Representative either to charge our account with an amount
equal to the selling concession with respect thereto, which amount 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
commissions, if any, and any taxes on redelivery.
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IV.
On the Closing Date (as defined in the Underwriting
Agreement), prior to [8:45 A.M.] (New York City time) we will deliver to Xxxxxx
Xxxxxxx & Co. International Limited, Federal or other funds immediately
available in New York City in the manner as you shall advise for (i) an amount
equal to the offering price less the selling concession in respect of the
Shares to be purchased by us, (ii) an amount equal to the offering price less
the selling concession in respect of such of the Shares to be purchased by us
as shall have been retained by or released to us for direct sale or (iii) the
amount set forth or indicated in a telex to us, as you shall advise. You will
make payment to the Company against delivery to you for our account of the
Shares to be purchased by us and you will deliver to us the Shares paid for by
us which shall have been retained by or released to us for direct sale. Unless
we promptly give you written instructions 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.
V.
We authorize you as Lead Managers to charge our account, as
compensation for your services in connection with this issue, including the
purchase from the Company, the Selling Shareholders and the management of the
offering, $____(2) a share for each Share that we have agreed to purchase
pursuant to Section (2) of the Underwriting Agreement.
We authorize you to charge to our account (i) our International
Underwriting Percentage of all expenses incurred by you under the terms of this
Agreement or in connection with or attributable to the purchase, carrying and
sale of Shares pursuant to this Agreement (including all expenses, if any,
incurred for the account of the International Underwriters pursuant to the
Agreement Between U.S. and International Underwriters), and (ii) all transfer
taxes paid or payable on our behalf on purchases, sales or transfers made for
our account pursuant to this Agreement.
----------------------------------
(2)Insert amount of praecipium. Typically, the praecipium is equal to 1/3
of the underwriting portion of the gross spread.
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VI.
We authorize you to advance your own funds for our account,
charging interest rates prevailing from time to time, or to arrange loans for
our account for the purpose of carrying out the provisions of this Agreement or
the Agreement Between U.S. and International Underwriters and in connection
therewith to hold or pledge as security therefor all or any Shares which you
may be holding for our account under this Agreement.
Out of payment received by you for Shares sold for our account
which have been paid for by us, you will remit to us promptly an amount equal
to the price paid by us for such Shares.
Xxxxxx Xxxxxxx & Co. International Limited may deliver to us
or transfer to our account from time to time against payment, for carrying
purposes only, any Shares purchased by us or for our account under this
Agreement that it is holding for sale for our account but that are not sold and
paid for. We will transfer back to Xxxxxx Xxxxxxx & Co. International Limited
against payment at such times as it may demand any Shares so transferred to us
for carrying purposes.
VII.
This Agreement shall terminate 30 days from the date hereof,
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. You may at your discretion on notice to us prior to the
termination of this Agreement alter any of the terms or conditions of offering
determined pursuant to Article II hereof or Article III of the Agreement
Between U.S. and International Underwriters, or terminate or suspend in whole
or in part the effectiveness of Article III hereof or paragraphs five through
nine of Article IV thereof. No termination or suspension pursuant to this
paragraph shall affect your or Xxxxxx Xxxxxxx & Co. Incorporated's authority
under Article III to cover any short or close any long position incurred under
this Agreement prior to such termination or suspension.
Upon termination of this Agreement, or prior thereto at your
discretion, Xxxxxx Xxxxxxx & Co. International Limited shall deliver to us or
transfer to our account any Shares purchased by us from the Company and the
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Selling Shareholders or pursuant to the Agreement Between U.S. and International
Underwriters and held by Xxxxxx Xxxxxxx & Co. International Limited for sale for
our account to dealers or others but not sold and paid for and any shares of
Common Stock which are held by Xxxxxx Xxxxxxx & Co. International Limited for
our account pursuant to Article III. As soon as practicable after termination of
this Agreement our account hereunder shall be settled and paid. Xxxxxx Xxxxxxx &
Co. International Limited may reserve from distribution such amount as it deems
advisable to cover possible additional amounts due from us. Determination by
Xxxxxx Xxxxxxx & Co. International Limited of amounts to be paid to or by us
shall be final and conclusive. Any of our funds in Xxxxxx Xxxxxxx & Co.
International Limited's hands may be held with its general funds without
accountability for interest.
Notwithstanding any settlement on the termination of this
Agreement, each International Underwriter agrees to pay its International
Underwriting Percentage of (i) all expenses incurred by you in investigating or
defending against any claim or proceeding which is asserted or instituted by
any party (including any governmental or regulatory body) other than an
Underwriter relating to the Registration Statement or the Prospectus (as
defined in the Underwriting Agreement) (or any amendment or supplement thereto)
or any preliminary prospectus and (ii) any liability, including attorneys'
fees, incurred by you in respect of any such claim or proceeding, whether such
liability shall be the result of a judgment or as a result of any settlement
agreed to by you, other than any such expense or liability as to which you
receive indemnity payments pursuant to the following paragraph, Article III of
the Agreement Between U.S. and International Underwriters or Section 7 of the
Underwriting Agreement.
We agree to indemnify and hold harmless each other Underwriter
and each person, if any, who controls any such Underwriter within the meaning
of either Section 15 of the Act or Section 20 of the U.S. Securities Exchange
Act of 1934, as amended, to the extent and upon the terms which we agree to
indemnify and hold harmless the Company, its shareholders, directors, the
officers of the Company who sign the Registration Statement and any person
controlling the Company as set forth in the Underwriting Agreement.
Our agreements contained in the second through fourth
paragraphs of Article II and this Article VII shall remain operative and in
full force and effect regardless of any termination of this Agreement or the
occurrence of any of the events described in clauses (i) through (iii) of the
last paragraph of Section 7 of the Underwriting Agreement.
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VIII.
We have examined the prospectus included in the Registration
Statement as amended to date and we are familiar with the terms of the
securities being offered and the other terms of offering which are to be
reflected in the proposed amendment to the Registration Statement. In addition,
we confirm that the information relating to us which has been furnished to the
Company for use therein is correct. You are authorized, with the approval of
counsel for the Underwriters, to approve on our behalf such proposed amendment
and any further amendments or supplements to the Registration Statement or the
International Prospectus.
We represent that our commitment to purchase Shares hereunder
and under the Agreement Between U.S. and International Underwriters will not
result in a violation of any financial responsibility requirements of any laws,
rules or regulations applicable to us, including applicable rules of any
securities exchange.
IX.
If the Underwriting Agreement is terminated as permitted by
the terms thereof, our obligations hereunder shall immediately terminate except
that (i) our obligations as set forth in the last paragraph of Article VII
shall remain in full force and effect, (ii) we shall remain liable for our
International Underwriting Percentage of all expenses and for any purchases or
sales which may have been made for our account pursuant to the provisions of
Article III, including any taxes on any such purchases or sales and (iii) such
termination shall not affect any obligation of any defaulting International
Underwriter.
In the event that any International Underwriter shall default
in its obligations (i) pursuant to the second paragraph of Article II or the
first paragraph of Article III, (ii) to pay amounts owed by it pursuant to
Article V or (iii) pursuant to the third or fourth paragraph of Article VII or
the first paragraph of this Article IX, we will assume our proportionate share
(determined on the basis of the International Underwriting Percentages of the
non-defaulting International Underwriters) of such obligations, but no such
assumption shall affect any obligation of any defaulting International
Underwriter.
If any one or more of the Underwriters shall fail or refuse to
purchase any Shares which it or they have agreed to purchase under the
Underwriting Agreement, we
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agree, in the proportion which the number of Firm Shares set forth opposite our
name in Schedule III to the Underwriting Agreement bears to the aggregate number
of Firm Shares set forth opposite the names of all non-defaulting Underwriters,
or in such other proportions as you may specify, to purchase the Shares which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase; provided that, in no event shall the Shares that any International
Underwriter has agreed to purchase pursuant to Section 2 of the Underwriting
Agreement be increased pursuant to this Article IX by an amount in excess of
one-ninth of the number of such Shares, without the written consent of such
International Underwriter. Xxxxxx Xxxxxxx & Co. International Limited is
authorized to arrange for the purchase by others (including itself and any other
International Underwriter) of any Shares not purchased by any defaulting
International Underwriter or by the other International Underwriters as provided
in this paragraph and in Section 9 of the Underwriting Agreement. If such
arrangements are made, the respective numbers of Shares to be purchased by the
remaining International Underwriters and such other person or persons, if any,
shall be taken as the basis for all rights and obligations hereunder. Any action
taken under this paragraph shall not relieve any defaulting International
Underwriter from liability in respect of any default of such International
Underwriter under the Underwriting Agreement or this Agreement.
Nothing herein contained shall constitute us partners with you
or with the other Underwriters and the obligations of ourselves and of each of
the other Underwriters are several and not joint. If for United States federal
income tax purposes the International Underwriters shall be deemed to constitute
a partnership, each International Underwriter elects to be excluded from the
application of Subchapter K, Chapter 1, Subtitle A, of the United States
Internal Revenue Code, as amended.
You shall be under no liability to us for any act or omission
except in respect of obligations expressly assumed by you herein.
This Agreement is being executed by us and delivered to you in
duplicate. Upon your confirmation hereof and agreements in identical form with
each of the other Underwriters, this Agreement shall constitute a valid and
binding contract between us.
Your authority hereunder and under the Underwriting Agreement
and the Agreement Between U.S. and International Underwriters may be exercised
by Xxxxxx Xxxxxxx & Co. International Limited, jointly or by Xxxxxx Xxxxxxx &
Co. International Limited alone. The authority of
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the U.S. Representatives hereunder and under the Agreement Between U.S. and
International Underwriters may be exercised by Xxxxxx Xxxxxxx & Co.
Incorporated, The Xxxxxxxx-Xxxxxxxx Company, Inc., X.X. Xxxxxxxx & Co. and
Equitable Securities Corporation, either jointly or alone.
This Agreement may be executed in two or more counterparts
which together shall constitute one and the same instrument. If this Agreement
is executed by or on behalf of any party hereto by a person acting under the
power of attorney given him by such party, such person hereby states that at
the time of execution hereof he has no notice of revocation of the power of
attorney by which he has executed this Agreement as such attorney.
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,
XXXXXX XXXXXXX & CO. INTERNATIONAL
LIMITED
By
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Attorney-in-fact for each
of the several International
Underwriters named in Schedule III
to the Underwriting Agreement
Confirmed as of the date hereof
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
By XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
By
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