MASTER AGREEMENT AMONG UNDERWRITERS Exhibit H(2)
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St. Petersburg, Florida
April 12, 2001
Xxxxxxx Xxxxx & Associates, Inc.
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Ladies and Gentlemen:
1. We understand that Xxxxxxx Xxxxx & Associates ("Xxxxxxx Xxxxx") is
entering into this Master Agreement Among Underwriters in counterparts with us
and other firms that may be Underwriters (as defined below) for issues of
Securities (as defined below) in which Xxxxxxx Xxxxx is acting as Representative
or one of the Representatives. Irrespective of whether we have executed this
Master Agreement Among Underwriters, this Master Agreement Among Underwriters
shall apply to any offering of Securities in which we elect to act as an
Underwriter after receipt of an Invitation (as defined below) from Xxxxxxx Xxxxx
identifying the Issuer (as defined below) and if different from the Issuer, the
Seller or Sellers of such Securities, any applicable terms of the Securities
proposed to be offered by such Issuer, the amount of our proposed participation
and the names of the other Representatives, if any, and stating that our
participation as an Underwriter in the proposed offering shall be subject to the
provisions of this Master Agreement Among Underwriters.
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 (i) the expected offering date, (ii) the expected
closing date, (iii) the initial public offering price, (iv) the interest or
dividend rate (or the method by which such rate is to be determined), (v) the
conversion, (vi) exercise or exchange price or rate, (vii) the redemption or
liquidation price, (viii) the underwriting discount or commission, (ix) the
management fee, (x) the selling concession and (xi) 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, as amended (the "Act"), such
procedure being hereinafter referred to as "430A Pricing", you shall so advise
us and shall specify the maximum underwriting discount or commission, management
fee and selling concession. You may convey such information in one or more
communications (such communications received by us with respect to an offering
being hereinafter collectively referred to as the "Invitation"). If the
Underwriting Agreement (as defined below) 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 Master Agreement Among Underwriters, as amended or supplemented by
the Invitation, shall become binding upon us and the Representatives with
respect to such offering if you receive our 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"). If we
have not previously executed this Master Agreement Among Underwriters, by our
Acceptance we shall be deemed to be signatories hereof with respect to the
offering to which the Acceptance relates. To the extent that any terms contained
in the Invitation are inconsistent with any provisions herein, such terms shall
supersede any such provisions. Our Acceptance will also constitute our
confirmation that, except as otherwise stated in such Acceptance, each
applicable statement included in the Master Underwriters' Questionnaire attached
as Exhibit A hereto (or otherwise furnished to us) is correct. We agree to
notify you immediately of any development before the termination of the offering
provisions referred to in Section 10(a) with respect to any particular offering
of Securities which makes untrue or incomplete any information that we have
given or are deemed to have given in response to the Master Underwriters'
Questionnaire. The obligations of each underwriter shall be several and not
joint. The securities offered in any offering of securities made pursuant to
this Master Agreement Among Underwriters, including any guarantees relating to
such securities or any other securities into which such securities are
convertible or exchangeable into or exercisable for and any securities that may
be purchased upon exercise of an over-allotment option, are hereinafter referred
to as the "Securities". The issuer or issuers of the Securities are hereinafter
referred to as the "Issuer". All references herein to "you" or the
"Representatives" shall include Xxxxxxx Xxxxx and the other firms, if any, which
are named as Representatives in the Invitation, it being understood and agreed
that Xxxxxxx Xxxxx is authorized to act on behalf of all Representatives. Any
underwriters of Securities under this Master Agreement Among Underwriters,
including the Representatives, are hereinafter collectively referred to as the
"Underwriters". Except as otherwise provided in Section 10(c), the following
provisions of this Master Agreement Among Underwriters shall apply separately to
each individual offering of Securities.
2. The Representatives shall determine which signatories or other
parties deemed to be signatories to this Master Agreement Among Underwriters
will be invited to become Underwriters for the Securities. Changes may be made
by the Representatives of those who are to be Underwriters and in the respective
amounts of Securities to be purchased by them, provided that, notwithstanding
anything to the contrary contained in this Master Agreement Among Underwriters,
our consent shall be required for any increase in the amount of Securities to be
purchased by us, except in the following cases: (i) an increase in the amount of
Securities to be purchased by us as may be required by the underwriting or
purchase agreement or any associated terms or similar agreement with the Issuer
or any selling security-holders or any amendment or supplement thereto
(collectively, the "Underwriting Agreement") covering the Securities in the
event of a default by one or more of the Underwriters; (ii) an increase in the
amount of such Securities as a result of (a) an increase in the aggregate amount
of such Securities proposed to be purchased by the Underwriters as a whole; (b)
a reallotment of Securities among the Underwriters; or (c) any other cause,
which in any such case of (a) through (c) results in an aggregate net change of
25% or less in the amount of Securities to be purchased by us. We authorize you
on our behalf to execute and deliver the Underwriting Agreement or any agreement
between or among Underwriters (as defined in the next sentence), on the one
hand, and one or more groups of underwriters for the Securities not acting as
such pursuant to this Master Agreement Among Underwriters, on the other hand (an
"Intersyndicate Agreement"), in such forms as you determine and to take such
action as you deem advisable in connection with the performance of the
Underwriting Agreement, any Intersyndicate Agreement and this Master Agreement
Among Underwriters and the purchase, carrying, sale and distribution of the
Securities. We further authorize you to take such action as you deem necessary
or advisable to carry out this Master Agreement Among Underwriters, the
Underwriting Agreement and the purchase and sale of the Securities. You may
waive performance or satisfaction by the Issuer, any selling security-holders or
any other party to the Underwriting Agreement of certain of its or their
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. With respect to offerings of Securities using 430A Pricing,
you are also authorized to determine the initial public offering price and the
price at which the Securities are to be purchased in accordance with the
Underwriting Agreement.
It is understood that, if so specified in the Invitation for the issue,
arrangements may be made for the sale of Securities by the Issuer or selling
security-holders pursuant to delayed delivery contracts. Such Securities are
hereinafter referred to as "Delayed Delivery Securities", and such contracts as
"Delayed Delivery Contracts". Securities for which such contracts are not
entered into by the Issuer or selling security-holders are hereinafter referred
to as "Immediate Delivery Securities". References herein to delayed delivery and
Delayed Delivery Contracts apply only to offerings in which delayed delivery is
authorized. The term "underwriting obligation", as used in this Master Agreement
Among Underwriters with respect to any Underwriter, shall refer to the principal
amount or number of shares or units of the Securities (plus such additional
Securities as may be required by the Underwriting Agreement to be purchased by
such Underwriter 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 are 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 that 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
Underwriters.
As compensation for your services to each of the Underwriters in
connection with the Underwriting Agreement and this Master Agreement Among
Underwriters we will pay a management fee as specified in the Invitation for the
offering (without deduction in respect of Delayed Delivery Securities), and you
may charge our account therefore. If there is more than one Representative, such
compensation will be divided among the Representatives in such proportions as
they determine.
3. We understand and acknowledge that if registration of the offer and
sale of the Securities as contemplated by the Underwriting Agreement is required
by the Issuer under the Act on a registration statement or statements to be
filed with the Securities and Exchange Commission (the "Commission"), you will
either provide us with the file number or numbers of such registration statement
or statements with respect to the Securities or, as soon as practicable after
the later of the date of the Invitation or the date made available to you by the
Issuer, furnish to us (or make available for our review in your office) a copy
of such registration statement or statements (other than any documents
incorporated therein by reference and any exhibits) and any amendments thereto.
In any event you will furnish to us, as soon as practicable after sufficient
quantities thereof are made available to you by the Issuer, copies of the
Prospectus or supplemented Prospectus (excluding any documents incorporated by
reference herein) to be used in connection with the offering of the Securities.
As used herein "Prospectus" means the form of prospectus (including any
supplements and any documents incorporated by reference therein) authorized for
use in connection with the offering of such Securities, and "Registration
Statement" means the registration statement filed by the Issuer with the
Commission, as amended and including any documents incorporated by reference
therein, under which the offer and sale of the Securities are registered under
the Act.
We understand and acknowledge that if the offer and sale of the
Securities are exempt from the registration requirements of the Act, no
registration statement will be filed with the Commission. In any such case
involving an offering circular or other offering materials to be used in
connection with the offering of the Securities (any such circular or materials,
as it or they may be amended or supplemented being hereinafter referred to as
the "Offering Circular"), you will either provide us with information as to the
availability of a preliminary offering circular through a specified regulatory
authority or, as soon as practicable after the later of the date of the
Invitation or the date made available to you by the Issuer, furnish to us (or
make available for our review in your office) a copy of any preliminary offering
circular or a proof of the Offering Circular. In any event, in any such offering
involving an Offering Circular you will furnish to us, as soon as practicable
after sufficient quantities thereof are made available to you by the Issuer,
copies of the final Offering Circular. The Prospectus or Offering Circular, as
the case may be, relating to an offering of Securities is herein referred to as
the "Offering Document".
We understand and acknowledge that we are not authorized to give any
information or make any representation not contained in the Offering Document,
as amended or supplemented, or in any document incorporated by reference therein
in connection with the offering of the Securities. Our Acceptance of an
invitation shall constitute our agreement that, if requested by you, we will
furnish a copy of any amendment or supplement to any preliminary or final
Offering Document to each person to whom we have furnished a previous
preliminary or final Offering Document. Our Acceptance of an Invitation relating
to an offering of Securities registered under the Act shall constitute (i) our
acknowledgement that we are familiar with the Registration Statement, including
the documents incorporated by reference therein and the forms of Underwriting
Agreement and indenture or other documents describing the terms of the
Securities filed as exhibits thereto or otherwise made available to us, with any
preliminary prospectus, preliminary supplemented prospectus or Prospectus
relating to the Securities theretofore filed with the Commission, and with the
information to be set forth in an amendment to the Registration Statement or in
the Prospectus proposed to be filed with the Commission and (ii) our
confirmation that we have delivered, and our agreement that we will deliver, all
preliminary and final Prospectuses required for compliance with Rule 15c2-8 (or
any successor provision) under the Securities Exchange Act of 1934, as amended
(the "Exchange Act"). Our Acceptance of an Invitation relating to an offering of
Securities exempt from registration under the Act shall constitute (i) our
acknowledgment that we are familiar with the information set forth in any
preliminary offering circular or proof of the Offering Circular made available
to us and with the information to be set forth in the Offering Circular, (ii)
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 (iii) to the extent consistent with such
laws, rules and regulations, our confirmation that we have delivered, and our
agreement that we will deliver, all preliminary and final Offering Circulars
that would be required if Rule 15c2-8 (or any successor provision) under the
Exchange Act applied to such offering. We hereby consent to being named in the
Offering Document as one of the Underwriters of the Securities.
4. (a) In connection with the public offering of the Securities, we
authorize you, in your discretion, to determine the time of the initial public
offering, to determine the amount of Securities, if any, to be purchased by the
Underwriters pursuant to the over-allotment option, if any, to change the price
and/or size of the initial public offering, to furnish the Issuer with the
information to be included in the Registration Statement or Offering Circular
with respect to the terms of offering, and to determine all matters relating to
advertising and communications with dealers or others.
Each Underwriter also authorizes us to reserve for sale, and authorizes
us or any Underwriter designated by us to sell and deliver for its account to
such retail purchasers as we may select, at the public offering price, such
number as we may determine of the Securities that such Underwriter agrees to
purchase under the Underwriting Agreement. Such reservations and sales to retail
purchasers shall be made for the respective accounts of the Underwriters in the
same proportions, as nearly as may be practicable and so long as Securities of
the respective Underwriters are available therefore, as the respective
underwriting obligations of the Underwriters.
We also authorize you, in your discretion, to reserve for sale, and to
sell and deliver to securities dealers and others, which may include any
Underwriters selected by you ("Selected Dealers"), and to reserve for sale
pursuant to Delayed Delivery Contracts arranged by you through Selected Dealers,
all or any portion of the Securities to be purchased by us under the
Underwriting Agreement, all as you shall determine. Any such sales to Selected
Dealers may be made pursuant to the terms and conditions of your Master Selected
Dealers Agreement or otherwise and shall be made for the respective accounts of
the Underwriters in such proportions as you may determine. Each Selected Dealer
shall be a person (a "Dealer") who is (a) a broker or dealer (as defined in the
By-Laws of the National Association of Securities Dealers, Inc. (the "NASD"))
actually engaged in the investment banking or securities business and (i) a
member in good standing of the NASD that makes the representations and
agreements applicable to such a member contained in Section 17 hereof or (ii) a
foreign bank, broker, dealer or other institution not eligible for membership in
the NASD that makes the representations and agreements applicable to such
foreign institutions contained in Section 17 hereof, or (b) a "Bank" as defined
in Section 3(a)(6) of the Exchange Act, that is not a member of the NASD and
that makes the representations and agreements applicable to Banks contained in
Section 17 hereof. 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 shall initially be at the public offering price, less a concession not
in excess of the Selected Dealers' concession set forth in the Invitation and
the price to persons other than Selected Dealers shall be at the public offering
price. With your consent, the Underwriters may allow, and Selected Dealers may
reallow, a discount on sales to Dealers 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, in your discretion, to buy Immediate Delivery
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.
At or before the time the Securities are released for sale, you shall
notify us of the amount of Securities that has been reserved for our account for
sale to Selected Dealers and for sale pursuant to Delayed Delivery Contracts and
the amount that is to be retained by us for direct sale. After advice from you
that the Securities are released for public offering, we will offer to the
public, in conformity with the terms of the offering set forth in the Offering
Document, such of our Securities, as you advise are not reserved. In connection
with any offering of Securities that are registered under the Act and issued by
an Issuer that was not, immediately prior to the filing of the Registration
Statement, subject to the requirements of Section 13(a) or 15(d) of the Exchange
Act, we agree that unless otherwise advised by you and disclosed in the
Prospectus we will not make sales to any account over which we exercise
discretionary authority with respect to that sale.
We agree that we will from time to time, upon your request, report to
you the amount of Securities retained by us for direct sale that remain unsold.
Upon your request, we will 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 public offering price less, in the case of sales or
deliveries for the account of Selected Dealers, 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 other Underwriters, at the public offering price less, in the
case of purchases for the account of Selected Dealers, an amount determined by
you not in excess of 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 pursuant to Delayed Delivery Contracts or for sale to, but not
purchased and paid for by, Selected Dealers, all as above; provided, however, 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.
If, in accordance with the terms of offering set forth in the Offering
Document, 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 of the first paragraph of this Section relating to your
right to change the public offering price and concessions and discounts to
dealers shall not apply, and other references in this Section and elsewhere in
this Master Agreement Among Underwriters to the public 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.
Any Securities sold or loaned by us (otherwise than through you) which
you purchase in the open market for the account of any Underwriter will be
repurchased by us on demand at the cost of such purchase plus commissions and
taxes on redelivery. Securities delivered on such repurchase do not need to be
represented by the identical certificates so purchased. In lieu of such action
you may, in your discretion, sell for our account the Securities so purchased
and debit or credit our account for the loss or profit resulting from such sale,
or charge our account with an amount not in excess of the Selected Dealers'
concession with respect to such Securities.
(b) We authorize you to act on our behalf in making all arrangements
for the solicitation of offers to purchase Delayed Delivery 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 Selected Dealers
(including Underwriters acting as Selected Dealers) to whom you may pay a
commission as provided in the Offering document and herein.
The obligation of each of the Underwriters to purchase and pay for
securities as set forth in the Underwriting Agreement shall be reduced in the
proportion provided for therein, except that (i) as to any Delayed Delivery
Contract determined by you, in your discretion, to have been directed and
allocated by a purchaser to a particular Underwriter, such obligation of such
Underwriter shall be reduced by the amount of Delayed Delivery Securities
covered thereby, (ii) as to any Delayed Delivery Contracts for which
arrangements are made through Selected Dealers, such obligation of each
Underwriter shall be reduced as nearly as practicable in the proportion
determined by you that the amount of Securities of such Underwriter reserved and
sold pursuant to Delayed Delivery Contracts arranged through Selected Dealers
bears to the total Securities so reserved and sold, and (iii) such reductions
shall be rounded, as you shall determine, to the nearest $ 1,000 principal
amount or whole share or unit of the Securities.
The fee payable by the Issuer to each Underwriter, with respect to
Delayed Delivery Securities pursuant to the Underwriting Agreement, shall be
credited to the account of such Underwriter based upon the amount by which such
Underwriter's underwriting obligation is reduced as specified in the preceding
paragraph.
If the amount of Delayed Delivery Securities applied to reduce an
Underwriter's underwriting obligation and the amount of Immediate Delivery
Securities sold by or for the account of such Underwriter exceeds such
Underwriter's underwriting obligation, there shall be credited to such
Underwriter with respect to such excess amount of Securities only the amount of
the Selected Dealers' concession; provided, however, that no amount shall be
credited to such Underwriter with respect to such excess amount of such
Securities if such Underwriter is a Bank and the Securities do not constitute
"exempted securities" within the meaning of Section 3(a)(12) of the Exchange
Act.
The commissions payable to Selected Dealers, in respect of Delayed
Delivery Contracts arranged through them, shall be charged to each Underwriter
in the proportion which the amount of Securities of such Underwriter reserved
and sold pursuant to Delayed Delivery Contracts arranged through Selected
Dealers bears to the total Securities so reserved and sold.
5. We authorize you to make payment on our behalf to the Issuer or any
selling security-holder of the purchase price of our Securities, to take
delivery of our Securities, registered as you may direct in order to facilitate
deliveries, and to deliver our reserved Securities against sales. At your
request we will pay you an amount equal to the public offering price, less the
selling concession, of either our Securities or our unreserved Securities as you
direct, and such payment will be credited to our account and applied to the
payment of the purchase price. After you receive payment for reserved Securities
sold for our account, you will remit to us the purchase price (if any) paid by
us for such Securities and credit or debit our account with the difference
between the sale prices and the purchase price thereof. You will deliver to us
our unreserved Securities promptly, and our reserved but unsold Securities,
against payment of the purchase price therefore (except in the case of
Securities for which payment has previously been made), as soon as practicable
after the termination of the provisions referred to in Section 10(a), except
that if the aggregate amount of reserved but unsold Securities upon such
termination does not exceed 20% of the total amount of the Securities, you may
in your discretion sell such reserved but unsold Securities for the accounts of
the several Underwriters as soon as practicable after such termination, at such
prices and in such manner as you determine.
In the event that the Underwriting Agreement for an offering provides
for the payment of a commission or other compensation, we authorize you to
receive for our account payments of the commission or other compensation payable
to the Underwriters by the Issuer, as provided in the Underwriting Agreement.
Notwithstanding the foregoing provisions of this Section, if
transactions in the Securities can be settled through the facilities of The
Depository Trust Company ("DTC"), if we are a member of DTC we hereby authorize
you, in your discretion, to make appropriate arrangements for payment and/or
delivery through the facilities of DTC of the Securities to be purchased by us,
or if we are not a member of DTC, settlement may be made through a correspondent
that is a member of DTC pursuant to our timely instructions.
6. In connection with the purchase or carrying of our Securities or
other securities purchased for our account, we authorize you, in your
discretion, to advance your 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 Securities or such other securities. Any lender may rely upon your
instructions in all matters relating to any such loan. Any Securities, or such
other securities held by you for our account, may be delivered to us for
carrying purposes, and if so delivered will be redelivered to you upon demand.
7. We authorize you, in your discretion, to make purchases and sales of
Securities, and other securities of the Issuer of the same class and series and
any other securities of the Issuer which you may designate in the open market or
otherwise, for long or short account, on such terms as you deem advisable, and
to over-allot in arranging sales to Selected Dealers or others. You may, in your
discretion, liquidate any long position or cover any short position incurred
pursuant to this Section 7 at such prices and on such terms as you may
determine. Such purchases and sales (including over-allotments) will be made for
the accounts of the Underwriters as nearly as practicable in proportion to their
respective underwriting obligations. It is understood that you may have made
purchases of securities of the Issuer 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. We further
authorize you, in your discretion, to cover any short position incurred pursuant
to this Section by purchasing securities on such terms as you deem advisable.
Except as provided in this Section, at no time will our net commitment under the
foregoing provisions of this Section exceed 20% (or such other amount as may be
specified in the Invitation) of our underwriting obligation, excluding
Securities which may be purchased upon exercise of an over-allotment option,
provided that such percentage may be increased with the approval of a majority
in interest of the Underwriters. In the case of our net commitment for short
account, our net commitment will be computed assuming that all Securities which
may be purchased upon exercise of an over-allotment option are acquired. We will
on demand take up at cost any securities so purchased and deliver any securities
so 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. Upon
request, we will advise you of the Securities retained by us and unsold and will
sell to you for the account of one or more of the Underwriters such of our
unsold Securities and at such price, not less than the net price to Selected
Dealers nor more than the public offering price, as you determine.
If you effect any stabilizing purchases pursuant to this Section 7, 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.
8. Unless the Securities are "exempted securities" as defined in
Section 3(a)(12) of the Exchange Act, we and you agree not to bid for, purchase,
attempt to induce others to purchase, or sell directly or indirectly, any
Securities, any other securities of the Issuer of the same class and series and
any other securities of the Issuer which you may designate, except as brokers
pursuant to unsolicited orders, except to the extent permitted by Regulation M
(subject to any applicable exemption therefrom) under the Exchange Act as
interpreted by the Commission, and except as otherwise provided in this Master
Agreement Among Underwriters. If the Securities are, or include, common stock or
securities convertible or exchangeable into or exchangeable for common stock and
the Securities are not "exempted securities" as defined in Section 3(a)(12) of
the Exchange Act, we and you also agree not to effect, or attempt to induce
others to effect, directly or indirectly, any transactions in or relating to put
or call options on any stock of the Issuer, except to the extent permitted by
Regulation M (subject to any applicable exemption therefrom) under the Exchange
Act as interpreted by the Commission.
If the Securities are convertible or exchangeable into or exercisable
for shares of common stock and such common stock is subject to options traded on
a securities exchange, we represent and warrant that we have not, since the day
following the date of the invitation telex, entered into a discount or parity
opening uncovered writing transaction in options to acquire shares of such
common stock for our account or for the account of any customer and we agree
that we will not enter into any such transaction prior to the termination of the
provisions of Section 10 hereof, with respect to such offering of Securities.
The term "discount or parity opening uncovered writing transaction" means an
opening sale transaction where the seller is the writer of an option to purchase
shares of such common stock which he does not then own or have the right to
acquire upon exercise of conversion or option rights, which option is sold at a
price (exclusive of commissions) per optioned share which, when added to the
amount per share payable upon exercise of the option, shall be equal to or less
than the last reported sales price (exclusive of commissions) per share
immediately prior to the time such option is sold.
9. We represent and warrant that the incurrence by us of our
obligations under this Master Agreement Among Underwriters and the Underwriting
Agreement in connection with the offering of the Securities will not place us in
violation of Rule 15c3-1 under the Exchange Act, if such requirements are
applicable to us, 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. We further represent and warrant that in connection
with the offering of the Securities we have complied, and agree that we will
comply, with the provisions of Regulation M under the Exchange Act with regard,
inter alias, to trading in the Securities by Underwriters. We agree that, for
purposes of the foregoing sentence, in addition to the Securities, any of the
Issuer's securities deemed to be of the same class and series as the Securities
shall be subject to trading restrictions under Regulation M.
10. (a) With respect to any particular offering of Securities, the
terms and conditions of (i) the second and third sentences of the fifth
paragraph of section 5(a), (ii) the last paragraph of Section 4(a), (iii) the
first sentence of Section 7, and (iv) Section 8 (collectively, the "Offering
Provisions") will terminate at the close of business on the 45th day after the
date of the initial public offering of the Securities or at the close of
business on the day of the closing of the purchase of the Securities by the
Underwriters pursuant to the Underwriting Agreement, whichever is later, unless
in either such case the effectiveness of the Offering Provisions is extended or
sooner terminated as hereinafter provided. You may extend the effectiveness of
such Offering Provisions up to an additional 15 days by notice to us to the
effect that the Offering Provisions of this Master Agreement Among Underwriters
are extended to the date or by the number of days indicated in the notice. You
may terminate such Offering Provisions, other than the last paragraph of Section
4(a), at any time by notice to us to the effect that the Offering Provisions of
this Master Agreement Among Underwriters are terminated and you may terminate
the provisions of the last paragraph of Section 4(a) at any time at or
subsequent to the termination of the other provisions by notice to us to the
effect that the penalty bid provisions of this Master Agreement Among
Underwriters are terminated. All other provisions of this Master Agreement Among
Underwriters shall remain operative and in full force and effect with respect to
such offering of Securities.
(b) This Master Agreement Among Underwriters may be terminated by
either party hereto upon five business days' written notice to the other party;
provided, however, that with respect to any particular offering of Securities,
if you receive any such notice from us after our Acceptance for such offering,
this Master Agreement Among Underwriters shall remain in full force and effect
as to such offering and shall terminate with respect to such offering and all
previous offerings only in accordance with and to the extent provided in
subsection (a) of this Section.
(c) This Master Agreement Among Underwriters may be supplemented or
amended by you by notice to us by written communication and, except for
supplements or amendments set forth in an Invitation, any such supplement or
amendment to this Master Agreement Among Underwriters shall be effective with
respect to any offering to which this Master Agreement Among Underwriters
applies after the date of such supplement or amendment. Each reference to "this
Master Agreement Among Underwriters" herein shall, as appropriate, be to this
Master Agreement Among Underwriters as so supplemented and amended.
11. Except as otherwise provided herein, you may charge our account
with any transfer taxes on sales made by you of Securities purchased by us under
the Underwriting Agreement and with our proportionate share (based upon our
underwriting obligation) of all other expenses incurred by you under this Master
Agreement Among Underwriters or in connection with the purchase, carrying, sale
or distribution of the Securities. The accounts hereunder will be settled as
promptly as practicable after the termination of the Offering Provisions
referred to in the first sentence of Section 10(a), but you may reserve such
amount as you deem advisable for additional expenses. Your determination of the
amount to be paid to or by us will 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.
12. Default by one or more Underwriters hereunder or under the
Underwriting Agreement will not release the other Underwriters from their
obligations or affect the liability of any defaulting Underwriter to the
non-defaulting Underwriters for damages resulting from such default. If one or
more Underwriters default under the Underwriting Agreement, you may arrange for
the purchase by others, including non-defaulting Underwriters, of Securities not
taken up by the defaulting Underwriter or Underwriters.
13. You will be under no liability to us for any act or omission except
for obligations expressly assumed by you herein, and no obligations on your part
will be implied hereby or inferred here. The rights and liabilities of the
Underwriters are several and not joint, and nothing will constitute the
Underwriters a partnership, association or separate entity.
If for Federal income tax purposes the Underwriters should be deemed to
constitute a partnership then 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.
You, as Representative, 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.
14. We agree to indemnify, hold harmless and reimburse each other
Underwriter and each person, if any, who controls such other Underwriter within
the meaning of Section 15 of the Act, to the extent, and upon the terms, that
such Underwriter agrees to indemnify, hold harmless and reimburse the Issuer and
certain other persons pursuant to the Underwriting Agreement. This indemnity
agreement shall remain in full force and effect regardless of any investigation
made by or on behalf of such other Underwriter or controlling person or any
statement made to the Commission as to the results thereof.
15. Each Underwriter (including you) agrees to pay upon your request,
as contribution, its proportionate share, based upon its underwriting
obligation, of any losses, claims, damages or liabilities, joint or several,
under the Act or otherwise, paid or incurred by any Underwriter (including you)
to any person other than an Underwriter (including amounts paid by an
Underwriter as contribution), arising out of or based upon any untrue statement
or alleged untrue statement of any material fact contained in the Offering
Document, any amendment or supplement thereto, or any related preliminary
Offering Document or any other selling or advertising material approved by you
for use by the Underwriters in connection with the sale of the Securities, or
arising out of or based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading (other than an untrue statement or alleged untrue
statement or omission or alleged omission made in reliance upon and in
conformity with written information furnished to the Issuer by an Underwriter
through you specifically for use therein); and we will pay such proportionate
share of any legal or other expenses reasonably incurred by you or with your
consent in connection with investigating or defending any such loss, claim,
damage or liability, or any action in respect thereof. In determining the amount
of any Underwriter's obligation under this Section, appropriate adjustment may
be made by you to reflect any amounts received by any one or more Underwriters
from any person in respect of such claim from the Issuer, any selling
security-holder or any other person (other than an Underwriter) pursuant to the
Underwriting Agreement or otherwise. In respect of any claim there shall be
credited against any amount paid or payable by us pursuant to this Section any
loss, damage, liability or expense which is incurred by us as a result of any
such claim being asserted against us, and if such loss, claim, damage, liability
or expense is incurred by us subsequent to any payment by us pursuant to this
Section, appropriate provision shall be made to effect such credit, by refund or
otherwise. If any such claim is asserted, you may take such action in connection
therewith as you deem necessary or desirable, including retention of counsel for
the Underwriters, and in your discretion separate counsel so retained by you
shall be included in the amounts payable pursuant to this Section. In
determining amounts payable pursuant to this Section, any loss, claim, damage,
liability or expense paid or incurred, and any amount received, by any person
controlling any Underwriter within the meaning of Section 15 of the Act which
has been paid or incurred or received by reason of such control relationship
shall be deemed to have been paid or incurred or received by such Underwriter.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. At your discretion, you may consent
to being named as the representatives of a defendant class of underwriters. Any
Underwriter may elect to retain at its own expense its own counsel and, on
advice of such counsel and with your consent, may settle or consent to the
settlement of any such claim. You may settle or consent to the settlement of any
such claim, on advice of counsel retained by you, with the approval of a
majority in interest of the Underwriters. Whenever we receive notice of the
assertion of any claim to which the provisions of this Section would be
applicable, we will give prompt notice thereof to you. Whenever you receive
notice of the assertion of any claim to which the provisions of this Section
would be applicable, you will give prompt notice thereof to each Underwriter.
You will also furnish each Underwriter with periodic reports, at such times as
you deem appropriate, as to the status of such claim and the action taken by you
in connection therewith. If any Underwriter or Underwriters default in their
obligation to make any payments under this Section, each non-defaulting
Underwriter shall be obligated to pay its proportionate share of all defaulted
payments, based upon such Underwriter's underwriting obligation as related to
the underwriting obligations of all non-defaulting Underwriters without,
however, relieving such defaulting Underwriter from its liability therefore.
16. We authorize you to file with the Commission and any other
governmental agency any reports required in connection with any transactions
effected by you for our account pursuant to this Master Agreement Among
Underwriters, and we will furnish any information needed for such reports. We
agree to transmit to you for filing with the Commission any report required to
be made by us pursuant to the Exchange Act as a result of any transactions
effected in connection with the offering of the Securities. You agree to inform
us, upon our request, of the states and other jurisdictions in 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. However, you
will not have any responsibility with respect to the right of any Underwriter or
other person to sell the Securities in any state or jurisdiction,
notwithstanding any information you may furnish in that connection. 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 applicable, we further authorize you to file on
behalf of the several Underwriters with the NASD such required documents and
information, if any, which have been furnished to you for filing pursuant to the
applicable, rules, statements and interpretations of the NASD. If in your
discretion you deem it necessary, you are further authorized to file with the
Department of State of the State of New York and Further State Notice with
respect to the Securities.
17. You represent and warrant that you are a member in good standing of
the NASD, and we represent and warrant that we are (a) a member in good standing
of the NASD, (b) a Bank that is not a member of the NASD or (c) a foreign bank,
broker, dealer or other institution not eligible for membership in the NASD. If
we are such a member, we agree that in making sales of the Securities we will
comply with all applicable rules of the NASD, including, without limitation,
NASD Rule 2740. If we are not an NASD member, we agree to comply as though we
were a member with NASD Rules 2730, 2740, and 2750 and to comply with the
requirements of the NASD's Interpretation with Respect to Free-Riding and
Withholding. If we are such a foreign bank, broker, dealer or other institution,
we agree not to offer or sell any Securities in the United States of America
except through you and in making sales of Securities we agree to comply with
NASD Rule 2420 as it applies to a nonmember broker or dealer in a foreign
country. If we are a Bank, we agree that we will not accept any portion of the
management fee paid by the Underwriters with respect to the offering of any
Securities or, in connection with the public offering of any Securities that do
not constitute "exempted securities" within the meaning of Section 3(a)(12) of
the Exchange Act, purchase any Securities at a discount from the offering price
from any Underwriter or Selected Dealer or otherwise accept any selling
concession, discount or other allowance from any Underwriter or Selected Dealer,
which in any such case is not permitted under the NASD's Rules of Fair Practice,
and we agree to comply with NASD Rule 2420 as though we were a member.
18. Any notice to us shall be deemed to have been duly given if mailed,
hand-delivered, telephoned (and confirmed in writing), telegraphed, telexed,
telecopied or wired communicated to us at the address set forth on the signature
page hereof, or at such other address as we shall notify you in writing.
Communications by telegram, telex, telecopy, wire or other written form shall be
deemed to be "written" communications.
19. This Master Agreement Among Underwriters shall be governed by, and
construed in accordance with, the laws of the State of Florida applicable to
agreements made and to be wholly performed in such State.
20. This Master Agreement Among Underwriters may be executed in any
number of counterparts, each of which shall be deemed an original, which taken
together shall constitute one and the same instrument.
Very truly yours,
--------------------------------------
(Name of Firm)
By:___________________________________
Confirmed, as of the date first above written
XXXXXXX XXXXX & ASSOCIATES, INC.
By:_________________________________
(Authorized Officer)
