1
2,000,000 Preferred Securities
INTRUST Capital Trust
----% Cumulative Trust Preferred Securities
(Liquidation Amount $25 per Preferred Security)
AGREEMENT AMONG UNDERWRITERS
--------, 1997
Xxxxxx, Xxxxxxxx & Company, Incorporated
As Representative of the Several Underwriters
000 Xxxxx Xxxxxxxx, Xxxxx 0000
Xx. Xxxxx, Xxxxxxxx 00000
A. UNDERWRITING AGREEMENT. We understand that INTRUST Financial
Corporation, a Kansas corporation (the "Company") and its financing
subsidiary, INTRUST Capital Trust, a Delaware business trust (the "Trust,"
and hereinafter together with the Company, the "Offerors"), propose to enter
into an underwriting agreement in substantially the form attached (the
"Underwriting Agreement") with you and other prospective underwriters
(including us) (collectively, the "Underwriters") providing for the several
purchase by the Underwriters from the Trust of 2,000,000 of the Trust's ----%
Cumulative Trust Preferred Securities with a liquidation amount of $25.00 per
Preferred Security upon the terms stated in the Underwriting Agreement (such
Preferred Securities are herein referred to as the "Firm Preferred
Securities), in which we will agree in accordance with the terms thereof to
purchase the number of Firm Preferred Securities set forth opposite our name
in Schedule I thereto. In addition, the Trust proposes to grant to the
Underwriters, upon the terms stated in the Underwriting Agreement, the right
to purchase up to an additional 300,000 Preferred Securities (the "Option
Preferred Securities), identical to the Firm Preferred Securities, for the
sole purpose of covering over-allotments in the sale of the Firm Preferred
Securities. The Firm Preferred Securities and the Option Preferred
Securities are collectively referred to herein as the "Designated Preferred
Securities."
B. REGISTRATION STATEMENT AND PROSPECTUS. The Designated
Preferred Securities are more particularly described in a registration
statement on Form S-3 (Registration Nos. and -01) filed with
-------- --------
the Securities and Exchange Commission (the "Commission") under the
Securities Act of 1933, as amended (the "Act"). Amendments to such
registration statement have been or are being filed, or a form of prospectus
is being filed pursuant to Rule 424(b) and Rule
2
430A under the Act, in which, with our consent hereby confirmed, we have been
named as one of the Underwriters of the Designated Preferred Securities. A copy
of the registration statement as filed and a copy of each amendment as filed
(excluding exhibits) have heretofore been delivered to us. We confirm that we
have examined the registration statement, including amendments thereto, relating
to the Designated Preferred Securities, as filed with the Commission, that we
are willing to accept the responsibilities of an Underwriter under the Act in
respect of the registration statement, and we are willing to proceed with a
public offering of the Designated Preferred Securities in the manner
contemplated. The registration statement and the related prospectus may be
further amended, but no such amendment or change shall release or affect our
obligations hereunder or under the Underwriting Agreement. As used herein, the
terms "Registration Statement" and "Prospectus" shall have the same meanings as
specified in the Underwriting Agreement.
C. AUTHORITY OF REPRESENTATIVE. We hereby authorize you,
acting on our behalf, as our representative (a) to complete, execute, and
deliver the Underwriting Agreement, to determine the public offering price of
the Designated Preferred Securities and the underwriting discount with
respect thereto and to make such variations, if any, as in your judgment are
appropriate and are not material, provided that the respective amount of
Designated Preferred Securities set forth opposite our name in Schedule I
thereto shall not be increased without our consent, except as provided
herein, (b) to waive performance or satisfaction by the Offerors of
obligations or conditions included in the Underwriting Agreement if in your
judgment such waiver will not have a material adverse effect upon the
interests of the Underwriters, and (c) to take such actions as in your
discretion may be necessary or advisable to carry out the Underwriting
Agreement, this Agreement, and the transactions for the accounts of the
several Underwriters contemplated thereby and hereby. We also authorize you
to determine all matters relating to the public advertisement of the
Designated Preferred Securities.
D. PUBLIC OFFERING. We authorize you, with respect to any
Designated Preferred Securities which we so agree to purchase, to reserve for
sale, and on our behalf to sell, to dealers selected by you (including you or
any of the other Underwriters, such dealers so selected being hereinafter
called "Selected Dealers") and to others all or part of our Designated
Preferred Securities as you may determine. Reservations for sales to persons
other than Selected Dealers shall be as nearly as practicable in proportion
to the respective underwriting obligations of the Underwriters, unless you
agree to a smaller proportion at the request of an Underwriter. Reservations
for sales to Selected Dealers need not be in such proportion. All sales of
reserved Designated Preferred Securities shall be as nearly as practicable in
proportion to the respective reservations as calculated from day to day.
In your discretion, from time to time, you may add to the reserved
Designated Preferred Securities any Designated Preferred Securities retained
by us remaining unsold, and you may upon our request release to us any of our
Designated Preferred
3
Securities reserved but not sold. Any Designated Preferred Securities so
released shall not thereafter be deemed to have been reserved. Upon termination
of this Agreement, or prior thereto at your discretion, you shall deliver to our
account any of our Designated Preferred Securities reserved but not sold and
delivered, except that if the aggregate of all reserved but unsold and
undelivered Designated Preferred Securities is less than Designated Preferred
Securities, you are authorized to sell such Designated Preferred Securities for
the accounts of the several Underwriters at such price or prices as you may
determine.
Sales of reserved Designated Preferred Securities shall be made to
Selected Dealers at the public offering price less the Selected Dealers'
Concession pursuant to the Selected Dealer Agreement in substantially the
form attached hereto, and to others at the public offering price.
Underwriters and Selected Dealers may reallow a concession to other dealers
as set forth in the Selected Dealer Agreement.
After advice from you that the Designated Preferred Securities are
released for sale to the public, we will offer to the public in conformity
with the terms of the offering set forth in the Prospectus such of our
Designated Preferred Securities as you advise us are not reserved. We
authorize you after the Designated Preferred Securities are released for sale
to the public, in your discretion, to change the public offering price of the
Designated Preferred Securities and the concession, and to buy Designated
Preferred Securities for our account from Selected Dealers at the public
offering price less such amount not in excess of the Selected Dealers'
Concession as you may determine.
Sales of Designated Preferred Securities between Underwriters may be
made with your prior consent, or as you deem advisable for blue sky purposes.
We agree that we will not sell to any accounts over which we exercise
discretionary authority any Designated Preferred Securities which we have
agreed to purchase under the Underwriting Agreement.
E. ADDITIONAL PROVISIONS REGARDING SALES. You may, in your
discretion, charge our account with an amount equal to the Selected Dealers'
Concession in respect of each Designated Preferred Security purchased under
the Underwriting Agreement by you and not sold by you for our account (and
each Designated Preferred Security which you believe has been substituted
therefor) which may be delivered against a purchase contract made by you for
our account prior to the later of (a) the termination of all of the
provisions referred to in Section 10 hereof or (b) the covering by you of any
short position created by you for our account, or in lieu of such charge,
require us to repurchase on demand at the total cost thereof (including
commissions), plus transfer taxes, any such Designated Preferred Security so
delivered.
F. PAYMENT AND DELIVERY. At or before 9:00 a.m., New York City
time, on the Closing Date (as defined in the Underwriting Agreement) and on
each Option Closing Date (as defined in the Underwriting Agreement), we will
deliver to you at
4
your office at 000 Xxxxx Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000,
Attention: Syndicate Department, a certified or bank cashiers' check payable to
your order, in clearing house funds, in the amount equal to the initial offering
price set forth in the Prospectus less the Selected Dealers' Concession in
respect of the number of Firm Preferred Securities or Option Preferred
Securities, as the case may be, to be purchased by us pursuant to the
Underwriting Agreement. We authorize you for our account to make payment of the
purchase price for the Designated Preferred Securities to be purchased by us
against delivery to you of such Designated Preferred Securities, and the
difference between such price and the amount of our check delivered to you
therefor shall be credited to our account. Unless we notify you at least three
full business days prior to such Closing Date to make other arrangements, you
may, in your discretion, advise the Offerors to prepare our certificates in our
name. If you have not received our funds as requested, you may in your
discretion make such payment on our behalf, in which event we will reimburse you
promptly. Any such payment by you shall not relieve us from any of our
obligations hereunder or under the Underwriting Agreement.
We authorize you for our account to accept delivery of our Designated
Preferred Securities from the Trust and to hold such of our Designated
Preferred Securities as you have reserved for sale to Selected Dealers and
others and to deliver such Designated Preferred Securities against such
sales. You will deliver to us our unreserved Designated Preferred Securities
as promptly as practicable.
Notwithstanding the foregoing provisions of this Section 6, if you so
notify us, payment for and delivery of our Designated Preferred Securities
may be made through the facilities of The Depository Trust Company, if we are
a member, unless we have otherwise notified you prior to a date to be
specified by you, or, if we are not a member, settlement may be made through
a correspondent who is a member pursuant to instructions we may send to you
prior to such specified date.
As promptly as practicable after you receive payment for reserved
Designated Preferred Securities sold for our account, you will remit to us
the purchase price paid by us for such Designated Preferred Securities and
credit or debit our account with the difference between the sale price and
such purchase price.
G. AUTHORITY TO BORROW. In connection with the transactions
contemplated in the Underwriting Agreement or this Agreement, we authorize
you, in your discretion, to advance your own funds for our account, charging
current interest rates, to arrange loans for our account and in connection
therewith to execute and deliver any notes or other instruments and hold or
pledge as security any of our Designated Preferred Securities or any
Preferred Securities of the Trust purchased for our account. Any lender may
rely upon your instructions in all matters relating to any such loan.
Any of our Designated Preferred Securities and any Preferred Securities
of the Trust purchased for our account held by you may from time to time be
delivered to
5
us for carrying purposes, and any such securities will be delivered to you upon
demand.
H. STABILIZATION AND OTHER MATTERS. We authorize you in your
discretion to make purchases and sales of the Preferred Securities of the
Trust for our account in the open market or otherwise, for long or short
account, on such terms as you deem advisable and in arranging sales to
overallot. If you have purchased Preferred Securities for stabilizing
purposes prior to the execution of this Agreement, such purchases shall be
treated as having been made pursuant to the foregoing authorization. We also
authorize you, either before or after the termination of the offering
provisions of this Agreement, to cover any short position incurred pursuant
to this Section on such terms as you deem advisable. All such purchases and
sales and over-allotments shall be made for the accounts of the several
Underwriters as nearly as practicable in proportion to their respective
underwriting obligations. Our net commitment under this Section (excluding
any commitment incurred under the Underwriting Agreement upon exercise of the
right to purchase Option Preferred Securities) shall not, at the end of any
business day, exceed 15 percent of our maximum underwriting obligation. We
will on your demand take up and pay for at cost any Preferred Securities so
purchased or sold or over-allotted for our account, and, if any other
Underwriter defaults in its corresponding obligation, we will assume our
proportionate share of such obligation without relieving the defaulting
Underwriter from liability. We will be obligated in respect of purchases and
sales made for our account hereunder whether or not any proposed purchase of
the Designated Preferred Securities from the Trust is consummated. The
existence of this provision is no assurance that the price of the Designated
Preferred Securities will be stabilized or that, if stabilizing is commenced,
it may not be discontinued at any time.
We agree to advise you, from time to time upon your request, during the
term of this Agreement, of the number of Designated Preferred Securities
retained by us remaining unsold, and will, upon your request, sell to you for
the accounts of one or more of the several Underwriters such number of such
Designated Preferred Securities as you may designate at such prices, not less
than the net price to Selected Dealers nor more than the public offering
price, as you may determine.
If you effect any stabilizing purchase pursuant to this Section 8, you
will notify us promptly of the date and time when the first stabilizing
purchase was effected and the date and time when stabilizing was terminated.
You will retain such information as is required to be retained by you as
"Manager" pursuant to Rule 17a-2 under the Securities Exchange Act of 1934,
as amended (the "1934 Act"). We agree that we will not effect any
stabilizing purchases, syndicate covering transactions or penalty bids
without your express authorization, and, if any purchases are effected, we
agree to furnish to you not later than three business days following the date
upon which any of the foregoing was commenced such information as is required
under Rule 17a-2(d).
6
With respect to the Underwriting Agreement, you are also authorized in
your discretion (a) to exercise the option therein as to all or any part of
the Option Preferred Securities, and to terminate such option in whole or in
part prior to its expiration, (b) to postpone the Closing Date and the Option
Closing Date referred to in the Underwriting Agreement, and any other time or
date specified therein, (c) to exercise any right of cancellation or
termination, (d) to arrange for the purchase by other persons (including
yourselves or any other Underwriter) of any Designated Preferred Securities
not taken up by any defaulting Underwriter and (e) to consent to such other
changes in the Underwriting Agreement as in your judgment do not materially
adversely affect the substance of our rights and obligations thereunder.
We further agree that (a) prior to the termination of this Agreement we
will not, directly or indirectly, bid for or purchase any Designated
Preferred Securities for our own account, except as provided in this
Agreement and in the Underwriting Agreement, and (b) prior to the completion
(as defined in the Commission's Regulation M) of our participation in this
distribution, we will otherwise comply with the Commission's Regulation M.
I. ALLOCATION OF EXPENSES AND SETTLEMENT. We authorize you
to charge our account with (a) all transfer taxes on Designated Preferred
Securities purchased by us pursuant to the Underwriting Agreement and sold by
you for our account, (b) Selected Dealers' Concessions in connection with the
purchase, marketing and sale of the Designated Preferred Securities for our
account, and (c) our proportionate share (based upon our underwriting
obligation) of all other expenses incurred by you under this Agreement and in
connection with the purchase, carrying, sale and distribution of the
Designated Preferred Securities. Your determination of the amount and
allocation of such expenses shall be conclusive. In the event of the default
of any Underwriter in carrying out its obligations hereunder, the expenses
chargeable to such Underwriter pursuant to this Agreement and not paid by it,
as well as any additional losses or expenses arising from such default, may
be proportionately charged by you against the other Underwriters not so
defaulting (including such other persons who purchase Designated Preferred
Securities upon a default by an Underwriter pursuant to Section 11 hereof),
without, however, relieving such defaulting Underwriter from its liability
therefor.
As soon as practicable after termination of this Agreement, the
accounts hereunder will be settled, but you may reserve from distribution
such amount as you deem necessary to cover possible additional expenses. You
may at any time make partial distributions of credit balances or call for
payment of debit balances. Any of our funds in your hands may be held with
your general funds without accountability for interest. Notwithstanding the
termination of this Agreement or any settlement, we will pay (a) our
proportionate share (based on our underwriting obligation) of all expenses
and liabilities which may be incurred by or for the accounts of the
Underwriters, including any liability based on the claim that the
Underwriters constitute an association, unincorporated business or other
separate entity, and of any expenses incurred by you or any other Underwriter
with your
7
approval in contesting any such claim or liability, and (b) any transfer taxes
paid after such settlement on account of any sale or transfer for our account.
J. TERMINATION. The offering provisions of this Agreement shall
terminate 30 days from the date hereof unless extended by you. You may
extend said provisions for a period or periods not exceeding an additional 30
days in the aggregate, provided that the Selected Dealer Agreements, if any,
are similarly extended. Whether extended or not, said provisions may be
terminated in whole or in part by notice from you.
K. DEFAULT BY UNDERWRITERS. Default by one or more Underwriters
in respect of their obligations hereunder or under the Underwriting Agreement
shall not release us from any of our obligations or in any way affect the
liability of any defaulting Underwriter to the other Underwriters for damages
resulting from such default. In case of such default by one or more
Underwriters, you are authorized to increase, pro rata with other
non-defaulting Underwriters, the number of Designated Preferred Securities
which we shall be obligated to purchase pursuant to the Underwriting
Agreement, provided that the aggregate amount of all such increases for our
account shall not exceed our pro rata share of Designated Preferred
Securities; and you are further authorized to arrange, but shall not be
obligated to arrange, for the purchase by other persons, who may include
yourselves or other Underwriters, of all or a portion of any aggregate amount
not taken up. In the event any such arrangements are made, the respective
numbers of Designated Preferred Securities to be purchased by the
non-defaulting Underwriters and by any such other persons shall be taken as
the basis for the underwriting obligations under this Agreement.
L. POSITION OF REPRESENTATIVE. Except as otherwise
specifically provided in this Agreement, you shall have full authority to
take such action as you may deem advisable in respect of all matters
pertaining to the Underwriting Agreement and this Agreement and in connection
with the purchase, carrying, sale, and distribution of the Designated
Preferred Securities (including authority to terminate the Underwriting
Agreement as provided therein). You shall be under no liability to us for or
in respect of the value of the Designated Preferred Securities or the
validity or the form thereof, the Registration Statement, any preliminary
prospectus, the Prospectus, the Underwriting Agreement, or other instruments
executed by the Offerors, or others; or for or in respect of the issuance,
transfer, or delivery of the Designated Preferred Securities; or for the
performance by the Offerors, or others of any agreement on its or their part;
nor shall you be liable under any of the provisions hereof or for any matters
connected herewith, except for your own want of good faith, for obligations
expressly assumed by you in this Agreement and for any liabilities imposed
upon you by the Act. No obligations on your part shall be implied or
inferred herefrom. Authority with respect to matters to be determined by
you, or by you and the Offerors, pursuant to the Underwriting Agreement,
shall survive the termination of this Agreement.
8
In taking all actions hereunder, except in the performance of your own
obligations hereunder and under the Underwriting Agreement, you shall act
only as the representative of each of the Underwriters. The commitments and
liabilities of each of the several Underwriters are several in accordance
with their respective purchase obligations and are not joint or joint and
several. Nothing contained herein shall constitute the Underwriters partners
or render any of them liable to make payments otherwise than as herein
provided. If for federal income tax purposes the Underwriters should be
deemed to constitute a partnership, then each Underwriter elects to be
excluded from the application of Subchapter K, Chapter 1, Subtitle A, of the
Internal Revenue Code of 1986, as amended, and agrees not to take any
position inconsistent with such election. Each Underwriter authorizes
Xxxxxx, Xxxxxxxx & Company, Incorporated, in its discretion, on behalf of
such Underwriter, to execute such evidence of such election as may be
required by the Internal Revenue Service.
M. COMPENSATION TO REPRESENTATIVE. As compensation for your
services in connection with the purchase of the Designated Preferred
Securities and the management of the public offering of the Designated
Preferred Securities, we agree to pay you and authorize you to charge our
account with an amount equal to $---- per share of the Designated Preferred
Securities which we have agreed to purchase pursuant to the Underwriting
Agreement.
N. INDEMNIFICATION AND FUTURE CLAIMS. Each Underwriter,
including you, agrees to indemnify, hold harmless and reimburse each other
Underwriter and each person, if any, who controls any other Underwriter
within the meaning of Section 15 of the Act, and any successor of any other
Underwriter, to the extent that, and upon the terms upon which, each
Underwriter will be obligated pursuant to the Underwriting Agreement to
indemnify, hold harmless and reimburse the Offerors, its directors, officers,
and controlling persons, therein specified.
In the event that at any time any person other than an Underwriter
asserts a claim against one or more of the Underwriters or against you as
representative of the Underwriters arising out of an alleged untrue statement
or omission in the Registration Statement (or any amendment thereto) or in
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) or relating to any transaction contemplated by this Agreement, we
authorize you to make such investigation, to retain such counsel for the
Underwriters and to take such action in the defense of such claim as you may
deem necessary or advisable. You may settle such claim with the approval of
a majority in interest of the Underwriters. We will pay our proportionate
share (based upon our underwriting obligation) of all expenses incurred by
you (including the fees and expenses of counsel for the Underwriters) in
investigating and defending against such claim and our proportionate share of
the aggregate liability incurred by all underwriters in respect of such claim
(after deducting any contribution or indemnification obtained pursuant to the
Underwriting Agreement, or otherwise, from persons other than Underwriters),
whether such liability is the result of a judgment against one or
9
more of the Underwriters or the result of any such settlement. There shall be
credited against any amount paid or payable by us pursuant to this paragraph any
loss, damage, liability or expense which is incurred by us as a result of any
such claim asserted against us, and if such loss, claim, damage, liability, or
expense is incurred by us as a result of any such claim against us, and if
such loss, claim, damage, liability, or expense is incurred by us subsequent
to any payment by us pursuant to this paragraph, appropriate provision shall
be made to effect such credit, by refund or otherwise. Any Underwriter may
retain separate counsel at its own expense. A claim against or liability
incurred by a person who controls an Underwriter shall be deemed to have been
made against or incurred by such Underwriter. In the event of default by any
Underwriter in respect of its obligations under this Section, the
non-defaulting Underwriters shall be obligated to pay the full amount thereof
in the proportions that their respective underwriting obligations bear to the
underwriting obligations of all non-defaulting Underwriters, without
relieving such defaulting Underwriter of its liability hereunder. Our
agreements contained in this Section will remain in full force and effect
regardless of any investigation made by or on behalf of such other
Underwriter or controlling person and will survive the delivery of and
payment for the Designated Preferred Securities and the termination of this
Agreement and the similar agreements entered into with the other
Underwriters.
O. BLUE SKY AND OTHER MATTERS. You will not have any
responsibility with respect to the right of any Underwriter or other person
to sell the Designated Preferred Securities in any jurisdiction
notwithstanding any information you may furnish in that connection. We
authorize you to file a New York Further State Notice, if required, and to
make and carry out on our behalf any agreements which you may deem necessary
in order to procure registration or qualification of any of the Designated
Preferred Securities in any jurisdiction, and we will at your request make
such payments, and furnish to you such information, as you may deem required
by reason of any such agreements.
We authorize you to file on behalf of the several Underwriters with the
National Association of Securities Dealers, Inc. (the "NASD") such documents
and information, if any, which are available or have been furnished to you
for filing pursuant to the applicable rules, statements, and interpretations
of the NASD.
P. TITLE TO DESIGNATED PREFERRED SECURITIES. The Designated
Preferred Securities purchased by the respective Underwriters shall remain
the property of such Underwriters until sold and no title to any such
Designated Preferred Securities shall in any event pass to you by virtue of
any of the provisions of this Agreement.
Q. CAPITAL REQUIREMENTS. We confirm that obligations incurred
by us under this Agreement and under the Underwriting Agreement will not
place us in violation of Rule 15c3-1 under the 1934 Act or of any applicable
rules relating to capital requirements of any securities exchange or
association to which we are subject.
10
R. LIABILITY FOR FUTURE CLAIMS. Neither any statement by you of any
credit or debit balance in our account nor any reservation from
distribution to cover possible additional expenses relating to the Designated
Preferred Securities will constitute any representation by you as to the
existence or nonexistence of possible unforeseen expenses or liabilities of
or charges against the several Underwriters. Notwithstanding the
distribution of any net credit balance to us, we will be and remain liable
for, and will pay on demand, (a) our proportionate share (based upon our
underwriting obligation) of all expenses and liabilities which may be
incurred by or for the accounts of the Underwriters, including any liability
which may be incurred by the Underwriters or any of them based on the claim
that the Underwriters constitute an association, unincorporated business,
partnership, or any separate entity, and (b) any transfer taxes paid after
such settlement on account of any sale or transfer for our account.
S. ACKNOWLEDGMENT OF REGISTRATION STATEMENT, ETC. We hereby
confirm that we have examined the Registration Statement (including any
amendments or supplements thereto) and Prospectus relating to the Designated
Preferred Securities filed with the Commission, that we are willing to accept
the responsibilities of an underwriter thereunder and that we are willing to
proceed as therein contemplated. We confirm that we have authorized you to
advise the Offerors on our behalf (a) as to the statements to be included in
any preliminary prospectus and in the Prospectus (including any supplement
thereto) relating to the Designated Preferred Securities under the heading
"Underwriting," insofar as they relate to us, and (b) that there is no
information about us required to be stated in said Registration Statement or
said preliminary prospectus or the Prospectus (including any supplement
thereto) other than as set forth in the Underwriters' Questionnaire
previously delivered by us to you and the Offerors. We understand that the
aforementioned documents are subject to further change and that we will be
supplied with copies of any amendment or amendments to the Registration
Statement and of any amended Prospectus promptly, if and when received by
you, but the making of such changes and amendments will not release us or
affect our obligations hereunder or under the Underwriting Agreement.
T. NOTICES AND GOVERNING LAW. Any notice from you to us shall
be mailed, telephoned, or telegraphed to us at our address as set forth in
the Underwriters' Questionnaire. Any notice from us to you shall be deemed
to have been duly given if mailed, telephoned or telegraphed to you at 000
Xxxxx Xxxxxxxx, Xxxxx 0000, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Syndicate
Department. This Agreement shall be governed by and construed in accordance
with the laws of the State of Missouri.
U. OTHER PROVISIONS. We represent that we are actually engaged
in the investment banking or securities business and that we are a member in
good standing of the NASD or, if we are not such a member, that we are a
foreign dealer
11
not eligible for membership in the NASD and that we will not offer or sell any
Designated Preferred Securities in, or to persons who are nationals or residents
of, the United States of America. In making sales of Designated Preferred
Securities, if we are such a member, we agree to comply with all applicable
rules of the NASD, including, without limitation, the NASD's Interpretation with
respect to Free-Riding and Withholding and Rule 2740 of the NASD's Conduct
Rules, or if we are a foreign dealer, we agree to comply with such
Interpretation and Rules 2730, 2740 and 2750 as though we were such a member,
and with Rule 2420 as that Rule applies to a non-member broker or dealer in a
foreign country. We confirm that you have heretofore delivered to us such
number of copies of the Prospectus as have been reasonably requested by us, and
we further confirm that we have complied and will comply with Rule 15c2-8 under
the 1934 Act concerning delivery of each preliminary prospectus and the
Prospectus, and that we will furnish to persons who receive a confirmation of
sale a copy of the Prospectus filed pursuant to Rule 424(b) or Rule 424(c) under
the Act. We are aware of our statutory responsibilities under the Act, and you
are authorized on our behalf to so advise the Commission.
COUNTERPARTS. This Agreement may be signed in any number of
counterparts which, taken together, shall constitute one and the same
instrument, and you may confirm the execution of such counterparts by
facsimile signature.
As Attorney-in-Fact for each of the several
Underwriters named in Schedule I to the
Underwriting Agreement
12
Confirmed as of the date first above written.
XXXXXX, XXXXXXXX & COMPANY, INCORPORATED
As Representative of the Several Underwriters
By:
Name:
Title:
