EXHIBIT 99.2(h)(1)
FORM OF MASTER AGREEMENT AMONG UNDERWRITERS
October 1, 1991
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 and Additional Securities (both 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 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
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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 to the Underwriters of an option to purchase
additional Securities solely to cover over-allotments (the "Overallotment
Securities"), we shall notify you in the Invitation of such option and of your
maximum obligation upon exercise of such option. If any seller of Securities
proposes to offer Securities through one or more underwriting syndicates (which
may be composed of a single underwriter) other than the underwriting syndicate
composed of the Underwriters, we shall notify you in the Invitation of the
extent to which the Underwriters may become obligated to purchase Securities
from, or sell Securities to, such other underwriting syndicate or syndicates
pursuant to one or more agreements between the representatives or managers of
such other syndicate or syndicates (or such single underwriter) and the
Representatives (any such agreement with respect to an Offering being referred
to herein as an "Inter-Syndicate Agreement", and any Securities purchased by the
Underwriters pursuant to an Inter-Syndicate Agreement being referred to herein
as "Additional Securities").
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
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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 AGREEMENTS. 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
your 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 20% as a 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 or Additional 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),
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plus (c) the amount of any Additional Securities that you may become obligated
to purchase by reason of purchases for your account made pursuant to any Inter-
Syndicate Agreements (including any such Securities purchased pursuant to
Section 5 hereof), less (d) 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 and any Inter-Syndicate Agreements 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.
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
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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 of
such registration statement and each amendment thereto (other than exhibits and
any documents incorporated therein by reference). 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 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 person 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
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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 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 delivery 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
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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 to each person to whom you have furnished a previous
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.
(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 other than Additional Securities or
Securities sold or to be sold pursuant to any Inter-Syndicate Agreements. 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 the Representatives to enter into any Inter-
Syndicate Agreements referred to in the Invitation, in the form (with all such
additions, modification and deletions as the Representatives shall deem
appropriate) that shall have been filed with, and be publicly available from,
the Commission or any such other regulatory authority as we shall specify in the
Invitation or that we shall provide to you (or make available for your review in
our office) as soon as practicable.
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 any Inter-Syndicate Agreements and to take all such actions as in
our discretion may be necessary or desirable to carry out the provisions of the
Underwriting Agreement, any Inter-Syndicate Agreements and
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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 of the Representatives, as the case may be. You will be bound by all
the terms of the Underwriting Agreement and any Inter-Syndicate Agreements 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 or any Inter-Syndicate Agreement (including the waiver of any such
conditions or the termination of the Underwriting Agreement or any Inter-
Syndicate Agreement). You also authorize us to determine whether to purchase,
and, if such determination is made, to purchase, any Additional Securities for
the account of the Underwriters pursuant to the terms of any Inter-Syndicate
Agreements. You further authorize the Representatives to determine whether to
sell, and, if such determination is made, to sell, Securities for the account of
the Underwriters pursuant to any Inter-Syndicate Agreements. Any Additional
Securities purchased or any Securities sold pursuant to any Inter-Syndicate
Agreements shall be purchased or sold, as the case may be, at the offering price
then in effect for the Securities less all or any part of the concession to
Selected Dealers, all as determined by the Representatives. In the event of the
exercise by the Representatives of an option to purchase any Additional
Securities or to sell any Securities pursuant to any Inter-Syndicate Agreements,
the Representatives shall promptly so notify each Underwriter and advise each
Underwriter of the number of Additional Securities to be purchased or the number
of Securities to be sold. The Representatives shall not, without your consent,
make net purchases of Additional Securities for your account in excess of 20% of
your Initial Commitment, except as may be provided in the Invitation. In
connection with any Offering involving one or more Inter-Syndicate Agreements,
you agree to be bound by, and all offers to sell and sales by you of Securities
may be subject to, such limitations on offers to sell and sales of Securities as
may be contained in the Invitation or in the Underwriting Agreement or any
Inter-Syndicate Agreement
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as executed and you further agree that any sales made by you to dealers shall be
made only to such dealers as agree, in their offers to sell and sales, to be
bound by the same limitations. 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, any Inter-Syndicate 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 Closing 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
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Agreement or any Inter-Syndicate 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 of any of its obligations
hereunder or under the Underwriting Agreement or any Inter-Syndicate Agreement
except as herein or therein provided.
In event of a default by an Underwriter in respect of its obligations under
the Underwriting Agreement or any Inter-Syndicate 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 or any Inter-Syndicate Agreements) 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
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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 the Prudential Securities Incorporated Master
Selected Dealer Agreement (copies of which are available from us upon request)
or otherwise, as the Representatives may determine.
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 form whom you received such a
discount.
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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, 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
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Underwriters, 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 other than Securities sold by the
Representatives on behalf of the Underwriters pursuant to any Inter-Syndicate
Agreements, 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
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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
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
15
Offering, there shall be credited to your account as compensation for such
services your allocable portion of the aggregate selling underwrites' 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 director 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 the 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 (or, in the case of Additional
Securities, the offering price or prices then in effect) plus any accrued
interest, amortization or original issued 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. Your authorize your Representatives to
accept delivery to your Securities in definitive form upon exchange of any
Securities in temporary form received by the Representatives on the Closing Date
pursuant to the preceding sentence. You further authorize the Representatives
to make the payment referred to above with their own funds on your behalf
16
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 or 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 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 your pursuant
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, 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
17
such facilities, if your 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 distributed of the Securities. You further authorize the
Representatives to 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 purposes of covering such over-allotments
and 9b) 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,
18
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 on 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 of
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 account of the
Underwriters with broker's commission or dealer's xxxx-ups on purchases or xxxx-
downs on sales effected by the Representative. 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 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
19
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 accred interest, amortization of original issue discount,
accumulated dividends, transfer taxes, broker's commissions or dealer's xxxx-
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.
11. OPEN MARKET TRANSACTIONS.__You represent and agree that in each
Offering you will comply with the provisions of Rule 10b-6 (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 the purchase, carrying, marketing and sale of the Securities
(including without limitation any expenses to be borne by the Underwriters in
accordance with any Inter-Syndicate Agreements, any expenses incurred in
connection with, and any interest on, any amounts borrowed pursuant to Section 9
hereof) on behalf of the sever 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
20
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 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 server Underwriters.
Notwithstanding the foregoing, if the Invitation states that the provisions
of Section 7(b0 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
form 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
21
Initial Commitment Percentage of all expenses and liabilities incurred by or for
the accounts of the Underwriters, including any 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 underwriter's fee.
13. TERMINATION; AMENDMENTS. (a) This Agreement may be terminated by
either party hereto upon five business days' written notice 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 the Section.
(b) If we have received your Acceptance with respect to an Offering, 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-fifty 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 156 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
22
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 to
"this Agreement" shall, as appropriate, be to this Master Agreement Among
Underwriters as so amended and supplemented by the Invitation or otherwise.
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 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 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, any
Inter-Syndicate Agreement 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
23
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 with any underwriters or managers party to any Inter-Syndicate
Agreements or, except as herein expressly provided, render any Underwriter
liable for the obligations of any other Underwriter. The rights, 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 (and any underwriters or managers party to any Inter-
Syndicate Agreements) 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 (and any
underwriters or managers party to any Inter-Syndicate Agreements), 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
24
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 indemnify 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
25
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 or of 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 are 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
26
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 therein. 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 to the non-defaulting Underwriters, without relieving such
defaulting Underwriter of its liability therefor. In determining amounts 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
27
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
representative Underwriters 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, 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.
28
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 by written communication or telephone to us at Xxx
Xxxxxxx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Capital Transactions Group.
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
29
member, you are a foreign bank, dealer or institution not eligible for
membership in the NASD that agrees to make no sales within the United States of
America, its territories or possessions or to person 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.
Please confirm, by signing and returning this Agreement to us, your
acceptance of an 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 representatives 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.
30
Very truly yours,
PRUDENTIAL SECURITIES INCORPORATED
By /s/ Xxxxx Xxxxx XX
------------------------------
Xxxxx Wield IV
Managing Director
CONFIRMED as of the date first
written above:
------------------------------
(Name of Firm)
By:
---------------------------
Title:
------------------------
Address:
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Name as it should appear in any prospectus
offering circular or advertisement
(if different from above):
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*If signer is not an officer or partner, please attach evidence of
authorization.
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Exhibit A
MASTER UNDERWRITERS' QUESTIONNAIRE
Unless otherwise defined, capitalized terms used herein have the meanings
assigned thereto in the Master Agreement Among Underwriters dated October 1,
1991, between Prudential Securities Incorporated 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 Prudential Securities Incorporated in
connection with an Offering of Securities in which Prudential Securities
Incorporated is acting as sole or lead representative of the several
Underwriters. Your Acceptance of any such invitation should refer in 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 term is used in Section 13(d)(3) of the
Exchange Act), owns of record or beneficially (determined in accordance
with Rule 13(d)(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.
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(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
Prudential Securities Incorporated (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 Prudential Securities Incorporated (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.
(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
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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
Prudential Securities Incorporated Master Selected Dealer Agreement, the
proposed Underwriting Agreement or any proposed Inter-Syndicate Agreement
relating to the Offering, 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 sales 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.
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(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 commencement
of the public offering of the Securities, to purchase in private
transactions, any securities (including warrants or 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, the proposed Underwriting Agreement or any proposed Inter-
Syndicate 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.
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(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 13(a) or
15(d) of the Exchange Act: You will not sell Securities to any accounts
over which you exercise discretionary authority.
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