MASTER AGREEMENT AMONG UNDERWRITERS
April 15, 1985
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
Xxxxxxx Xxxxx World Headquarters
North Tower
World Financial Center
New York, N.Y. 10281-1305
Dear Sirs:
We understand that from time to time you may act as 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 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 offering price of the securities is to be determined as
contemplated by Rule 430A under the Securities Act of 1933 (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 Purchase Agreement (as hereinafter defined) provides for the granting of
an option to purchase additional securities to cover over-allotments or
otherwise (an "over-allotment option"), 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 Master 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". If the
Purchase Agreement does not provide for an over-allotment option, the
securities to be purchased are hereinafter referred to as the "Securities";
if the Purchase Agreement provides for an over-allotment option, the
securities the Underwriters (as hereinafter defined) are initially obligated
to purchase pursuant to the Purchase 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", with the Initial Securities and all or any part of the Option
Securities being hereinafter collectively referred to as the "Securities".
Any underwriters of Securities under this Agreement, including the
Representatives (as hereinafter defined), are hereinafter collectively
refereed to as the "Underwriters". All references herein to "you" or to the
"Representatives" shall mean Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated 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 of 1933 (the "1933 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 amended or supplemented.
Section 1. PURCHASE AGREEMENT: AUTHORITY OF REPRESENTATIVES. We authorize
you to execute and deliver a purchase agreement and any amendment or
supplement thereto and any associated Terms Agreement or other similar
agreement (collectively, the "Purchase Agreement") on our behalf with the
Issuer and/or any selling securityholder with respect to the Securities in
such form as you determine. We will be bound by all terms of the Purchase
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 the 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 Purchase Agreement,
shall not be changed without our consent except as provided in the Purchase
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
Purchase Agreement, and the purchase and sale of the Securities, and to agree
to any waiver or modification of any provision of the Purchase Agreement. To
the 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 offering price and the price at which the Securities are
to be purchased in accordance with the Purchase Agreement. It is understood
and agreed that Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated may act on
behalf of all Representatives.
It is understood that, if so specified in the Invitation, arrangements
may be made for the sale of Securities by the Issuer pursuant to delayed
delivery contract (hereinafter referred to as "Delayed Delivery
Contracts"). Reference herein to delayed delivery and Delayed Delivery
Contracts apply only to offering 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
Purchase Agreement in the event of a default by or or more of the
Underwriters) which such Underwriter is obligated to purchase pursuant to the
provisions of the Purchase 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 Purchase Agreement will consist, subject to a adjustment as
provided in the Purchase 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 Purchase 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 any Invitation regard an offer of Securities registered under the
1933 Act (a "Registered Offering"), you will furnish to us, to the extent
made available to you by the Issuer, copies of any registration statement or
registration statements resulting to the Securities which may be filed with
the Securities and Exchange Commission (the "Commission") pursuant to the
1933 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
therin by reference, as from time to time amended or supplement by the filing
of documents pursuant to the Securities Exchange Act of 1934 (the "1934
Act"), the 1933 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 1933 Act with respect to an offering of
Securities (a "Prospectus Supplement") shall be deemed to have supplemented
the Prospectus only with respect to the offering of Securities to which
relates.
With respect to Securities for which no Registration Statement is filed
with the Commission, you will furnish to us, to the extent made available to
you by the Issuer, copies of any private placement
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memorandum: offering circular of other offering materials to be used in
connection with the offering of the Securities and of each amendment thereto
(to "Offering Circular").
Section 3. OFFERING. The sale of the securities to the public 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 of Offering Circular, such of the
Securities to be purchased by us as are not reserved for our account for sale
to Selected Dealers and others pursuant to Section 5. After the initial
offering, the offering price and the concession and discount there from 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 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 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 public advertisement, if any, with respect to the Securities
shall appear on such date, and shall include the names of such of the
Underwriters, as you may determine.
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 to 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 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 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, but sales of Securities
reserved for our account for sale to Selected Dealers shall be made as nearly
as practicable in the ratio which the amount of Securities reserved for our
account bears to the aggregate amount of Securities reserved for the account
of all Underwriters, as calculated from day to day. Sales to Selected Dealers
may be made under the Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx incorporated
Standard Dealer Agreement, or otherwise. The price to Selected Dealers
initially shall be the offering price loss 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 1934 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
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or (iii) banks that are not eligible for membership in the NASD. Each
Selected Dealer shall agree to comply with the provisions of Section 24 of
Article III of the Rules of Fair Practice of the NASD, 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 Sections 8 and 36 of Article III of such Rules of Fair
Practice, and to comply with Section 25 of Article III thereof as that
Section applies to a non-member foreign dealer or bank.
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 any Underwriter or Selected
Dealer from whom we receive such a discount.
We also authorize you, for our account, to reserve for sale and to sell
Securities to be purchased by us as 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 have not been reserved for our
account for sale to Selected Dealers and others and which is 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 remains 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 prices 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 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 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
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, 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 sale 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
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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 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 become an Underwriter, 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 of over-allotted for our account, including accrued interest,
amortization of original issue 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 1934 Act.
Section 8. OPEN MARKET TRANSACTIONS. We represent and agree in
connection with the offering of Securities we have complied and will comply
with the provisions of Rule 10b-6 under the 1934 Act with regard to trading
in the 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 Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated (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, of (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 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 through the facilities of The Depository Trust Company or any
such other depository or similar facility, the Securities to be purchased by
us, 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.
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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 Purchase Agreement for an offering provides for
the payment of a commission or other compensation to the Underwriters, we
authorize you to receive such commission or ther 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 fee specified in the Invitation in respect of the Securities to be
purchased by us pursuant to the Purchase Agreement, and we authorize you to
charge our account with such amount. If there is more than one
Representative, such compensation shall be divided among the Representatives
in such a 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 this 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 participations 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. You are authorized 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 we propose to offer Securities outside the United States, its
territories or its possessions, we will take at your 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.
Section 13. MEMBERSHIP IN A NATIONAL ASSOCIATION OF SECURITIES DEALERS,
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, its territories and its possessions and
not registered under the 1934 Act 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 Section 24 of Article III of the Rules of Fair Practice of the
NASD, and if we are a foreign dealer or 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 Section 8 and 36 of Article III of such Rules of
Fair Practice, and to comply with Section 25 of Article III there of as that
Section applies to a non-member foreign dealer or bank.
Section 14. DISTRIBUTION OF PROSPECTUSES: OFFERING CIRCULARS. We are
familiar with Securities Act of 1933 Release No. 4968 and Rule 12c2-8 under
the 1934 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. 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 1933 Act, the 1934 Act and the rules and regulation
thereunder.
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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 any additional instructions
contained in the Invitation 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 1934 Act applied to such
offering.
Section 15. NET CAPITAL. The incurrence by us of our obligations
hereunder and under the Purchase 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 1934 Act, or, if we are a financial institution
subject to regulation by the Board 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 provisos 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 obligations) 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 amounts 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 1933 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 Purchase Agreement.
Section 19. CLAIMS AGAINST UNDERWRITERS. With respect to each offering
of Securities pursuant to this Agreement, if at any time any person other
than an Underwriter assets 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 amendment or supplement thereto, or in
any preliminary or final Offering Circular, or relating to any transaction
contemplated by this Agreement, we authorize
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you to make such investigation, to retain such consul 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) as
incurred, in investigating and defending against such claim and our
proportionate share of those aggregate liability incurred by all Underwriters
in respect to such claim (after deducting any contribution or indemnification
obtained pursuant to the Purchase 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 Purchase 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
Purchase agreement, if provided in such Purchase 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 non-defaulting 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
Purchase 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 Purchase 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 that obligations of such
defaulting Underwriter or Underwriters, we agree, if provided in the Purchase
Agreement, to assume our proportionate share, based upon our underwriting
obligation, of the obligations of each such defaulting Underwriter (subject
to the limitations contained in the Purchase Agreement) without relieving
such defaulting Underwriter of its liability therefor.
In the event of default by one of 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 1933 Act or the 1934 Act
or the rules and regulations thereunder. No obligations not expressly assumed
by you in this Agreement shall be implied herefrom.
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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 Purchase 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 1954, 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 pages 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 New York applicable to agreements made and to be performed in
said State.
Please confirm this Agreement and deliver a copy to us.
Very truly yours,
Name of Firm:
By:
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Authorized Officer or Partner
Address:
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Confirmed as of the date
first above written.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: /s/ Xxxx X. Xxxxxxxxx
-----------------------------------
Name: Xxxx X. Xxxxxxxxx
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