EXHIBIT 1.3
FORM OF AGREEMENT AMONG UNDERWRITERS
_________ ____, 1999
CARDINAL CAPITAL MANAGEMENT, INC.
000 Xxxxxxx Xxxx
Xxxxx 000
Xxxxx Xxxxxx, Xxxxxxx 00000
Dear Sirs:
We understand that from time to time you may act as the Representative
or as one of the Representatives of the several underwriters of offerings of
securities of various issuers. This Agreement shall apply to any offering of
securities in which we elect to act as an underwriter after receipt of an
invitation from you which shall identify the issuer, contain information
regarding certain terms of the securities to be offered and specify the
amount of our proposed participation and the names of the other
Representatives, if any, and that our participation as an underwriter in the
offering shall be subject to the provisions of this Agreement. Your
invitation will include instructions for our acceptance of such invitation.
At or prior to the time of an offering, you will advise us, to the extent
applicable, as to the expected offering date, the expected closing date, the
initial public offering price, the interest or dividend rate (or the method
by which such rate is to be determined), the conversion price, the
underwriting discount, the management fee, the selling concession and the
reallowance, except that if the public offering price of the securities is to
be determined as contemplated by Rule 430A under the Securities Act of 1933,
as amended (the "Securities Act") (such procedure being hereinafter referred
to as "430A Pricing"), you shall so advise us and shall specify the maximum
underwriting discount, management fee and selling concession. Such
information may be conveyed by you in one or more communications (such
communications received by us with respect to the offering are hereinafter
collectively referred to as the "Invitation"). If the Underwriting Agreement
(as hereinafter defined) provides for the granting of an option to purchase
additional securities to cover over-allotments, you will notify us, in the
Invitation, of such option and of our maximum obligation upon exercise of
such option.
This Agreement, as amended or supplemented by the Invitation, shall
become effective with respect to our participation in an offering of
securities if you receive our oral or written acceptance and you do not
receive a written communication revoking our acceptance prior to the time and
date specified in the Invitation (our unrevoked acceptance after expiration
of such time and date being hereinafter referred to as our "Acceptance").
Our Acceptance will constitute our confirmation that, except as
otherwise stated in such Acceptance, each statement included in the
Underwriters' Questionnaire set forth as Exhibit A hereto (or otherwise
furnished to us) is correct. The issuer of the securities in any offering of
securities made pursuant to this Agreement is hereinafter referred to as the
"Issuer." The securities to be purchased, including securities which may be
purchased pursuant to an over-allotment option, are hereinafter referred to
as the "Securities." If the Underwriting Agreement provides for an
over-allotment option, the securities the Underwriters (as hereinafter
defined) are initially obligated to purchase pursuant to the Underwriting
Agreement are hereinafter called the "Initial Securities" and any additional
securities which may be purchased upon exercise of the over-allotment option
are hereinafter called the "Option Securities." Any underwriters of
Securities under this Agreement, including the Representatives (as
hereinafter defined), are hereinafter collectively referred to as the
"Underwriters." All references herein to "you" or to the "Representatives"
shall mean Cardinal Capital Management, Inc. and the other firms, if any,
which are named as Representatives in the Invitation. The Securities to be
offered may, but need not, be registered for a delayed or continuous offering
pursuant to Rule 415 under the Securities Act.
The following provisions of this Agreement shall apply separately to
each individual offering of Securities. This Agreement may be supplemented
or amended by you by written notice to us and, except for supplements or
amendments set forth in an Invitation relating to a particular offering of
Securities, any such supplement or amendment to this Agreement shall be
effective with respect to any offering of Securities to which this Agreement
applies after this Agreement is so amended or supplemented.
Section 1. UNDERWRITING AGREEMENT; AUTHORITY OF REPRESENTATIVES. We
authorize you to execute and deliver an underwriting agreement and any
amendment or supplement thereto and any associated Terms Agreement or other
similar agreement (collectively, the "Underwriting Agreement") on our behalf
with the Issuer and/or any selling security holder with respect to the
Securities in such form as you determine. We will be bound by all terms of
the Underwriting Agreement as executed. We understand that changes may be
made in those who are to be Underwriters, and in the amount of Securities to
be purchased by them, but the amount of Securities to be purchased by us in
accordance with the terms of this Agreement, including the maximum amount of
Option Securities, if any, which we may become obligated to purchase by
reason of the exercise of any over-allotment option provided in the
Underwriting Agreement, shall not be changed without our consent except as
provided in the Underwriting Agreement.
As Representatives of the Underwriters, you are authorized to take such
action as you deem necessary or advisable to carry out this Agreement, the
Underwriting Agreement, and the purchase, sale and distribution of the
Securities, and to agree to any waiver or modification of any provision of
the Underwriting Agreement. To the
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extent applicable, you are also authorized to determine (i) the amount of
Option Securities, if any, to be purchased by the Underwriters pursuant to
any over-allotment option and (ii) with respect to offerings using 430A
Pricing, the initial public offering price and the price at which the
Securities are to be purchased in accordance with the Underwriting Agreement.
Cardinal Capital Management, Inc. may act on behalf of all Representatives.
If so specified in the Invitation, arrangements may be made for the sale
of Securities by the Issuer pursuant to delayed delivery contracts
(hereinafter referred to as "Delayed Delivery Contracts"). References herein
to delayed delivery and Delayed Delivery Contracts apply only to offerings to
which delayed delivery is applicable. The term "underwriting obligation," as
used in this Agreement with respect to any Underwriter, shall refer to the
amount of Securities, including any Option Securities (plus such additional
Securities as may be required by the Underwriting Agreement in the event of a
default by one or more of the Underwriters) which such Underwriter is
obligated to purchase pursuant to the provisions of the Underwriting
Agreement, without regard to any reduction in such obligation as a result of
Delayed Delivery Contracts which may be entered into by the Issuer.
If the Securities consist in whole or in part of debt obligations
maturing serially, the serial Securities being purchased by each Underwriter
pursuant to the Underwriting Agreement will consist, subject to adjustment as
provided in the Underwriting Agreement, of serial Securities of each maturity
in a principal amount which bears the same proportion to the aggregate
principal amount of the serial Securities of such maturity to be purchased by
all the Underwriters as the respective principal amount of serial Securities
set forth opposite such Underwriter's name in the Underwriting Agreement
bears to the aggregate principal amount of the serial Securities to be
purchased by all the Underwriters.
Section 2. REGISTRATION STATEMENT AND PROSPECTUS; OFFERING CIRCULAR.
In the case of an Invitation regarding an offer of Securities registered
under the Securities Act (a "Registered Offering"), you will furnish to us,
to the extent made available to you by the Issuer, copies of any registration
statement relating to the Securities which may be filed with the Securities
and Exchange Commission (the "Commission") pursuant to the Securities Act and
of each amendment thereto (excluding exhibits but including any documents
incorporated by reference therein). Such registration statement(s), as
amended, and the prospectus(es) relating to the sale of Securities by the
Issuer constituting a part thereof, including all documents incorporated
therein by reference, as from time to time amended or supplemented by the
filing of documents pursuant to the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), the Securities Act or otherwise, are referred
to herein as the "Registration Statement" and the "Prospectus," respectively;
provided, however, that a supplement to the Prospectus filed with the
Commission pursuant to Rule 424 under the Securities act with respect to an
offering of Securities (a "Prospectus Supplement") shall be deemed to have
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supplemented the Prospectus only with respect to the offering of Securities
to which it relates.
With respect to Securities for which no Registration Statement is filed
with the Commission, you will furnish to us, the extent made available to you
by the Issuer, copies of any private placement memorandum, offering circular
or other offering materials to be used in connection with the offering of the
Securities and of each amendment thereto (the "Offering Circular").
Section 3. OFFERING. The sale of the Securities shall commence as soon
as you deem advisable. We will not sell any Securities until they are
released by you for that purpose. When notified by you that the Securities
are released for sale, we will offer in conformity with the terms of the
offering set forth in the Prospectus or Offering Circular, such of the
Securities to be purchased by us as are not reserved for our account for sale
to Selected Dealers (as hereinafter defined) and others pursuant to Section
5. After the initial offering, the offering price and the concession and
discount therefrom may be changed by you by notice to the Underwriters, and
we agree to be bound by any such change.
If, in accordance with the terms of the offering set forth in the
Prospectus or Offering Circular, the offering of the Securities is not at a
fixed price but at varying prices set forth by individual Underwriters based
on market prices or at negotiated prices, the provisions above relating to
your right to change the offering price and concession and discount to
dealers shall not apply, and other references in this Section and elsewhere
in this Agreement to the offering price or Selected Dealers' concession shall
be deemed to mean the prices and concessions determined by you from time to
time in your discretion.
Unless otherwise permitted in the Invitation, we will not sell any
Securities to any account over which we have discretionary authority. We
will also comply with any other restrictions which may be set forth in the
Invitation.
The initial advertisement with respect to the Securities shall appear on
such date, and shall include the names of such of the Underwriters, as you
may determine. Thereafter, any Underwriter may advertise at its own expense.
Section 4. DELAYED DELIVERY ARRANGEMENTS. We authorize you to act on
our behalf in making all arrangements for the solicitation of offers to
purchase Securities from the Issuer pursuant to Delayed Delivery Contracts,
and we agree that all such arrangements will be made only through you
(directly or through Underwriters or Selected Dealers). You may allow to
Selected Dealers in respect of such Securities a commission equal to the
concession allowed to Selected Dealers pursuant to Section 5.
The obligations of the Underwriters shall be reduced in the aggregate by
the
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principal amount of Securities covered by Delayed Delivery Contracts made by
the Issuer, the obligation of each Underwriter to be reduced by the principal
amount of such Securities, if any, allocated by you to such Underwriter.
Your determination of the allocation of Securities covered by Delayed
Delivery Contracts among the several Underwriters shall be final and
conclusive, and we agree to be bound by any notice delivered by you to the
Issuer setting forth the amount of the reduction in our obligation as a
result of Delayed Delivery Contracts.
Upon receiving payment from the Issuer of the fee for arranging Delayed
Delivery Contracts, you will credit our account with the portion of such fee
applicable to the Securities covered by Delayed Delivery Contracts allocated
to us. You will charge our account with any commission allocated to Selected
Dealers in respect of Securities covered by Delayed Delivery Contracts
allocated to us.
Section 5. OFFERING TO SELECTED DEALERS AND OTHERS; MANAGEMENT OF
OFFERING. We authorize you, for our account, to reserve for sale and to sell
to dealers ("Selected Dealers"), among whom any of the Underwriters may be
included, such amount of Securities to be purchased by us as you shall
determine. Reservations for sales to Selected Dealers for our account need
not be in proportion to our underwriting obligation. The price to Selected
Dealers initially shall be the public offering price less a concession not in
excess of the Selected Dealers concession set forth in the Invitation.
Selected Dealers shall be actually engaged in the investment banking or
securities business and shall be either (i) members in good standing of the
National Association of Securities Dealers, Inc. (the "NASD") or (ii) dealers
with their principal place of business located outside the United States, its
territories and its possessions and not registered under the Exchange Act who
agree to make no sales within the United States, its territories or its
possessions or to persons who are nationals thereof or residents therein or
(iii) banks that are not eligible for membership in the NASD. Each Selected
Dealer shall agree to comply with the provisions of NASD Conduct Rule 2740
and IM-2740, and each foreign Selected Dealer or bank who is not a member of
the NASD also shall agree to comply with the NASD's interpretation with
respect to free-riding and withholding, to comply, as though it were a member
of the NASD, with the provisions of NASD Conduct Rules 2730 and 2750, and to
comply with NASD Conduct Rule 2420 and IM-2420-1 as that Rule and
Interpretative Material apply to a non-member foreign dealer or bank.
We 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.
With your consent, the Underwriters may allow, and Selected Dealers may
reallow, a discount on sales to any dealer who meets the above NASD
requirements in an amount not in excess of the amount set forth in the
Invitation. Upon your request, we will advise you of the identity of any
dealer to whom we allow such a discount and
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any Underwriter or Selected Dealer from whom we receive a discount.
We also authorize you, for our account, to reserve for sale and to sell
Securities to be purchased by us at the offering price to others, including
institutions and retail purchasers. Except for such sales which are
designated by a purchaser to be for the account of a particular Underwriter,
such reservations and sales shall be made as nearly as practicable in
proportion to our underwriting obligation, unless you agree to a smaller
proportion at our request.
At or before the time the Securities are released for sale, you shall
notify us of the amount of Securities which (i) have not been reserved for
our account for sale to Selected Dealers and others and (ii) which are to be
retained by us for direct sale.
We will from time to time, upon your request, report to you the amount
of Securities retained by us for direct sale which remain unsold and, upon
your request, deliver to you for our account, or sell to you for the account
of one or more of the Underwriters, such amount of unsold Securities as you
may designate at the offering price less an amount determined by you not in
excess of the concession to Selected Dealers. You may also repurchase
Securities from other Underwriters and Selected Dealers, for the account of
one or more of the Underwriters, at prices determined by you not in excess of
the offering price less the concession to Selected Dealers.
You may from time to time deliver to any Underwriter, for carrying
purposes or for sale by such Underwriter, any of the Securities then reserved
for sale to, but not purchased and paid for by, Selected Dealers or others as
above provided, but to the extent that Securities are so delivered for sale
by such Underwriters, the amount of Securities then reserved for the account
of such Underwriter shall be correspondingly reduced. Securities delivered
for carrying purposes only shall be redelivered to you upon demand.
The Underwriters and Selected Dealers may, with your consent, purchase
Securities from and sell Securities to each other at the offering price less
a concession not in excess of the concession to Selected Dealers.
Section 6. REPURCHASE OF SECURITIES NOT EFFECTIVELY PLACED. In
recognition of the importance of distributing the Securities to bona fide
investors, we agree to repurchase on demand any Securities sold by us, except
through you, which are purchased by you in the open market or otherwise
during a period terminating as provided in Section 16, at a price equal to
the cost of such purchase, including accrued interest, amortization of
original issue discount or dividends, commissions and transfer and other
taxes, if any, on redelivery. The certificates delivered to us need not be
the identical certificates delivered to you in respect of the Securities
purchased. In lieu of requiring repurchase, you may, in your discretion,
sell such Securities for our account at such prices, upon such terms and to
such persons, including any of the other Underwriters,
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as you may determine, charging the amount of any loss and expense, or
crediting the amount of any net profit, resulting from such sale, to our
account, or you may charge our account with an amount determined by you not
in excess of the concession to Selected Dealers.
Section 7. STABILIZATION AND OVER-ALLOTMENT. In order to facilitate
the distribution of the Securities, we authorize you, in your discretion, to
purchase and sell Securities or any other securities of the Issuer or any
guarantor of the Securities specified in the Invitation in the open market or
otherwise, for long or short account, at such prices as you may determine,
and, in arranging for sales to Selected Dealers or others, to over-allot.
You may liquidate any long position or cover any short position incurred
pursuant to this Section at such prices as you may determine. You shall make
such purchases and sales (including over-allotments) for the accounts of the
Underwriters as nearly as practicable in proportion to their respective
underwriting obligations. It is understood that, in connection with any
particular offering of Securities to which this Agreement applies, you may
have made purchases of securities of the Issuer or securities of any
guarantor of the Securities for stabilizing purposes prior to the time when
we became one of the Underwriters, and we agree that any such securities so
purchased shall be treated as having been purchased for the respective
accounts of the Underwriters pursuant to the foregoing authorization. At the
close of business on any day our net commitment, either for long or short
account, resulting from such purchases or sales (including over-allotments)
shall not exceed 20% (or such other amount as may be specified in the
Invitation) of our underwriting obligation, except that such percentage may
be increased with the approval of a majority in interest of the Underwriters.
We will take up at cost on demand any Securities or other securities of the
Issuer or any securities of any guarantor of the Securities so sold or
over-allotted for our account, including accrued interest, amortization of
original issuance discount or dividends, and we will pay to you on demand the
amount of any losses or expenses incurred for our account pursuant to this
Section. In the event of default by any Underwriter in respect of its
obligations under this Section, each non-defaulting Underwriter shall assume
its share of the obligations of such defaulting Underwriter in the proportion
that its underwriting obligation bears to the underwriting obligations of all
non-defaulting Underwriters without relieving such defaulting Underwriter of
its liability hereunder.
If you effect any stabilizing purchase pursuant to this Section, you
shall promptly notify us of the date and time of the first stabilizing
purchase and the date and time when stabilizing was terminated. You shall
prepare and maintain such records as are required to be maintained by you as
manager pursuant to Rule 17a-2 under the Exchange Act.
Section 8. OPEN MARKET TRANSACTIONS. We represent and agree that in
connection with the offering of Securities we have complied and will comply
with the provisions of Rule 10b-6 under the Exchange Act with regard to
trading in the
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Securities. For purposes of the foregoing sentence, we agree that, in
addition to the Securities, other securities of the Issuer or securities of
any guarantor of the Securities or the right or option to purchase or
otherwise acquire any securities of the Issuer or any securities of any
guarantor of the Securities specified in the Invitation shall be considered
securities of the same class and series as the Securities.
Section 9. PAYMENT AND DELIVERY. At or before such time, on such dates
and at such places as you may specify in the Invitation, we will deliver to
you a certified or official bank check in such funds as are specified in the
Invitation, payable to the order of Cardinal Capital Management, Inc. (unless
otherwise specified in the Invitation) in an amount equal to, as you direct,
either (i) the offering price or prices plus accrued interest, amortization
of original issue discount or dividends, if any, set forth in the Prospectus
or Offering Circular less the concession to Selected Dealers in respect of
the amount of Securities to be purchased by us in accordance with the terms
of this Agreement, or (ii) the amount set forth in the Invitation with
respect to the Securities to be purchased by us. We authorize you to make
payment for our account of the purchase price for the Securities to be
purchased by us against delivery to you of such Securities (which may be in
temporary form), and the difference between such purchase price of the
Securities and the amount of our funds delivered to you therefor shall be
credited to our account.
Delivery to us of Securities retained by us for direct sale shall be
made by you as soon as practicable after your receipt of the Securities.
Upon termination of the provisions of this Agreement as provided in Section
16, you shall deliver to us any Securities reserved for our account for sale
to Selected Dealers and others which remain unsold at that time.
You are authorized to make appropriate arrangements for payment for
and/or delivery of the Securities to be purchased by us through the
facilities of The Depository Trust Company or any other depository or similar
facility, or, if we are not a member, settlement may be made through a
correspondent that is a member pursuant to our timely instructions to you.
Upon receiving payment for Securities sold for our account to Selected
Dealers and others, you shall remit to us an amount equal to the amount paid
by us to you in respect of such Securities and credit or charge our account
with the difference, if any, between such amount and the price at which such
Securities were sold.
In the event that the Underwriting Agreement for an offering provides
for the payment of a commission or other compensation to the Underwriters,
were authorize you to receive such commission or other compensation for our
account.
Section 10. MANAGEMENT COMPENSATION. As compensation for your services
in the management of the offering, we will pay you an amount equal to the
management
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fee specified in the Invitation in respect of the Securities to be purchased
by us pursuant to the Underwriting Agreement, and we authorize you to change
our account with such amount. If there is more than one Representative, such
compensation shall be divided among the Representatives in such proportions
as they may determine.
Section 11. AUTHORITY TO BORROW. We authorize you to advance your own
funds for our account, charging current interest rates, or to arrange loans
for our account or the account of the Underwriters, as you may deem necessary
or advisable for the purchase, carrying, sale and distribution of the
Securities. You may execute and deliver any notes or other instruments
required in connection therewith and may hold or pledge as security therefor
all or any part of the Securities which we or such Underwriters have agreed
to purchase. The obligations of the Underwriters under loans arranged on
their behalf shall be several in proportion to their respective participation
in such loans, and not joint. Any lender is authorized to accept your
instructions as to the disposition of the proceeds of any such loans. You
shall credit each Underwriter with the proceeds of any loans made for its
account.
Section 12. LEGAL QUALIFICATIONS. You shall inform us, upon request,
of the states and other jurisdictions of the United States in which it is
believed that the Securities are qualified for sale under, or are exempt from
the requirements of, their respective securities laws, but you assume no
responsibility with respect to our right to sell Securities in any
jurisdiction.
If we propose to offer Securities outside the United States, its
territories or its possessions, we will take, at our own expense, such
action, if any, as may be necessary to comply with the laws of each foreign
jurisdiction in which we propose to offer Securities.
If the Representatives inform us that the NASD views the offering as
subject to NASD Conduct Rules 2710 and 2720, we agree that we shall, to the
extent required, offer the Securities in compliance with such Rules and the
NASD's interpretation thereof.
If the Representatives inform us that the NASD views the Securities as
interests in a direct participation program, we agree that we shall, to the
extent required, offer the Securities in compliance with the NASD's
interpretation of NASD Conduct Rule 2810.
Section 13. MEMBERSHIP IN NATIONAL ASSOCIATION OF SECURITIES DEALERS,
INC.; FOREIGN UNDERWRITERS AND BANKS. We understand that you are a member in
good standing of the NASD. We confirm that we are actually engaged in the
investment banking or securities business and are either (i) a member in good
standing of the NASD or (ii) a dealer with its principal place of business
located outside the United States, it territories and its possessions and not
registered under the Exchange Act
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who hereby agrees to make no sales within the United States, its territories
or its possessions or to persons who are nationals thereof or residents
therein (except that we may participate in sales to Selected Dealers and
others under Section 5 of this Agreement) or (iii) a bank not eligible for
membership in the NASD. We hereby agree to comply with NASD Conduct Rule
2740 and IM-2740, and if we are a foreign dealer or a bank and not a member
of the NASD we also hereby agree to comply with the NASD's interpretation
with respect to free-riding and withholding, to comply, as though we were a
member of the NASD, with the provisions of NASD Conduct Rules 2730 and 2750,
and to comply with NASD Conduct Rule 2420 and IM-2420-1 as that Rule and
Interpretative Material apply to a non-member foreign dealer or bank.
Section 14. DISTRIBUTION OF PROSPECTUSES; OFFERING CIRCULARS. We are
familiar with Securities Act Release No. 4968 and Rule 15c2-8 under the
Exchange Act, relating to the distribution of preliminary and final
prospectuses, and we confirm that we will comply therewith, to the extent
applicable, in connection with any sale of Securities. Our acceptance of an
Invitation relating to an offering made pursuant to the provisions for
registration of offerings of Securities under the Securities Act shall
constitute our agreement that we shall furnish, if requested by the
Representatives, a copy of an amended or supplemented preliminary prospectus
to each person to whom we have furnished a previous preliminary prospectus
and, if requested by the Representatives, indicate to each such person the
changes reflected in such amended document. You shall cause to be made
available to us, to the extent made available to you by the Issuer, such
number of copies of the Prospectus as we may reasonably request for purposes
contemplated by the Securities Act, the Exchange Act and the rules and
regulations thereunder.
Our Acceptance of an Invitation relating to an offering made pursuant to
an Offering Circular shall constitute our agreement that, if requested by
you, we will furnish a copy of any amendment to a preliminary or final
Offering Circular to each person to whom we shall have furnished a previous
preliminary or final Offering Circular. Our Acceptance shall constitute our
confirmation that we have delivered and our agreement that we will deliver
all preliminary and final Offering Circulars required for compliance with the
applicable federal and state laws and the applicable rules and regulations of
any regulatory body promulgated thereunder governing the use and distribution
of offering circulars by underwriters and, to the extent consistent with such
laws, rules and regulations, our Acceptance shall constitute our confirmation
that we have delivered and our agreement that we will deliver all preliminary
and final Offering Circulars which would be required if the provisions of
Rule 15c2-8 (or any successor provision) under the Exchange Act applied to
such offering.
Section 15. NET CAPITAL. The incurrence by us of our obligations
hereunder and under the Underwriting Agreement in connection with the
offering of the Securities will not place us in violation of the net capital
requirements of Rule 15c3-1 under the Exchange Act, or, if we are a financial
institution subject to regulation by the Board
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of Governors of the Federal Reserve System, the Comptroller of the Currency
or the Federal Deposit Insurance Corporation, will not place us in violation
of the capital requirements of such regulator or any other regulator to which
we are subject.
Section 16. TERMINATION. With respect to each offering of Securities
pursuant to this Agreement, all limitations in this Agreement on the price at
which the Securities may be sold, the period of time referred to in Section
6, the authority granted by the first sentence of Section 7, and the
restrictions contained in Section 8 shall terminate at the close of business
on the 45th day after the commencement of the offering of such Securities.
You may terminate any or all of such provisions at any time prior thereto by
notice to the Underwriters. All other provisions of this Agreement shall
remain operative and in full force and effect with respect to such offering.
Section 17. EXPENSES AND SETTLEMENT. You may charge our account with
any transfer taxes on sales of Securities made for our account and with our
proportionate share (based upon our underwriting obligation) of all other
expenses incurred by you under this Agreement or otherwise in connection with
the purchase, carrying, sale or distribution of the Securities. With respect
to each offering of Securities pursuant to this Agreement, the respective
accounts of the Underwriters shall be settled as promptly as practicable
after the termination of all the provisions of this Agreement as provided in
Section 16, but you may reserve such amount as you may deem advisable for
additional expenses. Your determination of the amount to be paid to or by us
shall be conclusive. You may at any time make partial distributions of
credit balances or call for payment of debit balances. Any of our funds in
your hands may be held with your general funds without accountability for
interest. Notwithstanding any settlement, we will remain liable for any taxes
on transfers for our account and for our proportionate share (based upon our
underwriting obligation) of all expenses and liabilities which may be
incurred by or for the accounts of the Underwriters with respect to each
offering of Securities pursuant to this Agreement.
Section 18. INDEMNIFICATION. With respect to each offering of
Securities pursuant to this Agreement, we will indemnify and hold harmless
each other Underwriter and each person, if any, who controls each other
Underwriter within the meaning of Section 15 of the Securities Act, to the
extent that and on the terms upon which we agree to indemnify and hold
harmless the Issuer and other specified persons as set forth in the
Underwriting Agreement.
Section 19. CLAIMS AGAINST UNDERWRITER. With respect to each offering
of Securities pursuant to this Agreement, if at any time any person other
than an Underwriter asserts a claim (including any commenced or threatened
investigation or proceeding by any governmental agency or body) against one
or more of the Underwriters or against you as Representatives of the
Underwriters arising out of an alleged untrue statement or omission in the
Registration Statement (or any amendment thereto) or in any preliminary
prospectus or the Prospectus or any
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amendment or supplement thereto, or in any preliminary or final Offering
Circular, 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 when and as
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 more of the Underwriters or the result of any such settlement.
Any Underwriter may retain separate counsel at its own expense. A claim
against or liability incurred by a person who controls an Underwriter shall
be deemed to have been made against or incurred by such Underwriter. In the
event of default by any Underwriter in respect of its obligations under this
Section, the non-defaulting Underwriters shall be obligated to pay the full
amount thereof in the proportions that their respective underwriting
obligations bear to the underwriting obligations of all non-defaulting
Underwriters without relieving such defaulting Underwriter of its liability
hereunder.
Section 20. DEFAULT BY UNDERWRITERS. Default by any Underwriter in
respect of its obligations hereunder or under the Underwriting Agreement
shall not release us from any of our obligations or in any way affect the
liability of such defaulting Underwriter to the other Underwriters for
damages resulting from such default. If one or more Underwriters default
under the Underwriting Agreement, and if it is so provided in such
Underwriting Agreement, you may (but shall not be obligated to) arrange for
the purchase by others, which may include yourselves or other non-defaulting
Underwriters, of all or a portion of the Securities not taken up by the
defaulting Underwriters.
In the event that such arrangements are made, the respective
underwriting obligations of the nondefaulting Underwriters and the amounts of
the Securities to be purchased by others, if any, shall be taken as the basis
for all rights and obligations hereunder, but this shall not in any way
affect the liability of any defaulting Underwriter to the other Underwriters
for damages resulting from its default, nor shall any such default relieve
any other Underwriter of any of its obligations hereunder or under the
Underwriting Agreement except as herein or therein provided. In addition, in
the event of default by one or more Underwriters in respect of their
obligations under the Underwriting Agreement to purchase the Securities
agreed to be purchased by them thereunder and, to the extent that
arrangements shall not have been made by you for any person to assume the
obligations of such defaulting Underwriter or Underwriters, we agree, if it
is so provided in such Underwriting Agreement, to assume our proportionate
share, based upon our underwriting obligation, of the obligations of
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each such defaulting Underwriter (subject to the limitations contained in
such Underwriting Agreement) without relieving such defaulting Underwriter of
its liability therefor.
In the event of default by one or more Underwriters in respect of their
obligations under this Agreement to take up and pay for any securities
purchased, or to deliver any securities sold or over-allotted, by you for the
respective accounts of the Underwriters, or to bear their proportion of
expenses or liabilities pursuant to this Agreement, and to the extent that
arrangements shall not have been made by you for any persons to assume the
obligations of such defaulting Underwriter or Underwriters, we agree to
assume our proportionate share, based upon our respective underwriting
obligation, of the obligations of each defaulting Underwriter without
relieving any such defaulting Underwriter of its liability therefor.
Section 21. LEGAL RESPONSIBILITY. As Representatives of the
Underwriters, you shall have no liability to us except for your lack of good
faith and for obligations assumed by you in this Agreement and except that we
do not waive any rights that we may have under the Securities Act or the
Exchange Act or the rules and regulations thereunder. No obligations not
expressly assumed by you in this Agreement shall be implied herefrom.
Nothing herein contained shall constitute the Underwriters an
association, or partners, with you, or with each other, or, except as
otherwise provided herein or in the Underwriting Agreement, render any
Underwriter liable for the obligations of any other Underwriter; and the
rights, obligations and liabilities of the Underwriters are several in
accordance with their respective underwriting obligations, and not joint.
If the Underwriters are deemed to constitute a partnership for federal
income tax purposes, we elect to be excluded from the application of
Subchapter K, Chapter 1, Subtitle A, of the Internal Revenue Code of 1986, as
amended, and agree not to take any position inconsistent with such election,
and you, as Representatives, are authorized, in your discretion, to execute
on behalf of the Underwriters such evidence of such election as may be
required by the Internal Revenue Service.
Unless we have promptly notified you in writing otherwise, our name as
it should appear in the Prospectus or Offering Circular and our address are
set forth on the signature page hereof.
Section 22. NOTICES. Any notice from you shall be deemed to have been
duly given if mailed or transmitted to us at our address appearing below.
Section 23. GOVERNING LAW. This Agreement shall be governed by the
laws of the State of Florida applicable to agreements made and to be
performed in said State.
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Please confirm this Agreement and deliver a copy to us.
Very truly yours,
Firm:
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By:
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Authorized Officer or Partner
Address:
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Confirmed as of the date
first above written.
CARDINAL CAPITAL MANAGEMENT, INC.
By:
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Xxxxxxx X. Xxxxx, Xx., President
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