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Exhibit h.2
February __, 1998
1,000,000 Shares
Sirrom Capital Corporation
AGREEMENT AMONG INTERNATIONAL UNDERWRITERS
Exhibit A - Underwriting Agreement
Exhibit B - Agreement Between U.S. and
International Underwriters
Exhibit C - International Dealer Agreement
February __, 1998
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February __, 1998
Xxxxxx Xxxxxxx & Co. International Limited
The Xxxxxxxx-Xxxxxxxx Company LLC
X.X. Xxxxxxxx & Co.
SunTrust Equitable Securities Corporation
c/o Morgan Xxxxxxx & Co. International Limited
00 Xxxxx Xxxxxx
Xxxxxx Xxxxx
Xxxxxx X00 0XX
England
Dear Sirs:
We understand that Sirrom Capital Corporation, a Tennessee corporation
(the "Company"), propose to issue and sell to the several Underwriters (as
defined below) an aggregate of 5,000,000 shares (the "Firm Shares") of its
Common Stock, no par value ("Common Stock") pursuant to an underwriting
agreement (the "Underwriting Agreement"), substantially in the form attached
hereto as Exhibit A, with you as representatives (the "International
Representatives") of the international underwriters named in Schedule III
thereto (the "International Underwriters"), and Xxxxxx Xxxxxxx & Co.
Incorporated, The Xxxxxxxx-Xxxxxxxx Company LLC, X.X. Xxxxxxxx & Co. and
SunTrust Equitable Securities Corporation as representatives (the U.S.
"Representatives") of the U.S. underwriters (the "U.S. Underwriters"). The
International Underwriters and the U.S. Underwriters are hereinafter
collectively referred to as the Underwriters.
Of such Firm Shares 1,000,000 shares are to be offered outside the
United States and Canada by the International Underwriters (the "International
Shares") and 4,000,000 shares are to be offered by the U.S. Underwriters in the
United States and Canada (the "U.S. Firm Shares").
In addition, the several U.S. Underwriters will have an option to
purchase from certain shareholders of the Company (the "Selling Shareholders")
named in Schedule I to the Underwriting Agreement an additional 750,000 shares
(the "Additional Shares") to provide for over-allotments. The term "U.S. Shares"
shall mean the U.S. Firm Shares and the Additional Shares. The U.S. Shares and
the International Shares are hereinafter collectively referred to as the Shares.
We further understand that the Company has filed with the U.S.
Securities and Exchange Commission (the "Commission") a registration statement
including a prospectus relating to the Shares.
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I.
We hereby confirm our agreement with you that the International Shares
shall be purchased by you and the other several International Underwriters,
including ourselves, pursuant to the terms of and as set forth in the
Underwriting Agreement. We further understand that the International
Representatives proposes to enter into an agreement with the U.S.
Representatives (the "Agreement Between U.S. and International Underwriters"),
substantially in the form attached hereto as Exhibit B, pursuant to Article I of
which, and subject to the conditions thereof, the several International
Underwriters, including ourselves, could become obligated to purchase Shares
from, or sell Shares to, the U.S. Underwriters.
We authorize you (a) to execute and deliver the Underwriting Agreement
and the Agreement Between U.S. and International Underwriters on our behalf in
substantially the forms of Exhibits A and B hereto, respectively, and to make
representations and agreements on our behalf as set forth therein, (b) to vary
the offering terms of the International Shares in effect at any time, including
the offering price, the concession and the reallowance, (c) to agree to the
price at which the International Shares are to be purchased from the Company,
(d) to agree, on our behalf, to any addition to, change in or waiver of any
provision of the Underwriting Agreement (other than a change in the purchase
price of the International Shares and the respective numbers of International
Shares set forth opposite our names in Schedule III thereto) or of the Agreement
Between U.S. and International Underwriters (other than a change in the purchase
price of the International Shares pursuant to Article I thereof) and (e) to take
any other action as may seem advisable to you in respect of the offering of the
International Shares. The number of Shares set forth opposite each Underwriter's
name in Schedule I or in Schedule II of the Underwriting Agreement (or such
amount increased as provided in Section 9 of the Underwriting Agreement) is
hereinafter referred to as the Original Purchase Obligation of such Underwriter,
and the ratio that such Original Purchase Obligation of any International
Underwriter bears to the total number of International Shares, expressed as a
percentage, is hereinafter referred to as the International Underwriting
Percentage of such International Underwriter.
II.
We authorize you to act as the Lead Managers of the offering by the
International Underwriters of the International Shares outside of the United
States and Canada and to take such action as may seem advisable to you in
respect thereof. The offering of the International Shares is to be made as soon
after the registration statement filed with the Commission relating to the
Shares becomes
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effective (as then amended, the "Registration Statement") as in your judgment
and the judgment of the U.S. Representatives is advisable, at the offering price
set forth in, and on the other terms and conditions as you shall determine in
accordance with, the Underwriting Agreement. The offering of the International
Shares is to be made on the terms and conditions to be set forth in the
Underwriting Agreement, the Agreement Between U.S. and International
Underwriters and in the prospectus first used to confirm sales of the
International Shares (the "International Prospectus"), whether or not filed
pursuant to Rule 497 under the U.S. Securities Act of 1933, as amended (the
"Act"). During the term of this Agreement, advertisement of the offering outside
of the United States and Canada will be made only by Xxxxxx Xxxxxxx & Co.
International Limited. Such advertisement will be made on behalf of the
International Underwriters on such dates and in such countries as Xxxxxx Xxxxxxx
& Co. International Limited shall determine.
We authorize Xxxxxx Xxxxxxx & Co. International Limited to determine
whether to purchase, and, if such determination is made, to purchase, any Shares
for the account of the International Underwriters pursuant to the Agreement
Between U.S. and International Underwriters. We further authorize Xxxxxx Xxxxxxx
& Co. International Limited to determine whether to sell, and, if such
determination is made, to sell, Shares for the account of the International
Underwriters pursuant to such Agreement.
We authorize Xxxxxx Xxxxxxx & Co. International Limited to offer or to
sell for our account, in conformity with the immediately succeeding paragraph,
to dealers selected by it (among whom may be included any International
Underwriter) such Shares purchased by us from the Company or pursuant to the
Agreement Between U.S. and International Underwriters as Xxxxxx Xxxxxxx & Co.
International Limited shall determine. Sales of Shares to dealers shall be made
for the account of each International Underwriter approximately in the
proportion that Shares of such International Underwriter held by Xxxxxx Xxxxxxx
& Co. International Limited for such sales bear to the total Shares so held.
Such sales shall be made pursuant to dealer agreements substantially in the form
attached as Exhibit C hereto.
We authorize Xxxxxx Xxxxxxx & Co. International Limited to offer or
sell for our account to certain persons (other than the persons to whom Shares
are sold pursuant to the terms of the immediately preceding paragraph) such
Shares purchased by us from the Company or pursuant to the Agreement Between
U.S. and International Underwriters as it shall determine at the offering price
set forth in the International Prospectus. Except for sales for the accounts of
International Underwriters designated by a purchaser, aggregate sales of Shares
to such persons shall be made for the accounts of the several International
Underwriters as nearly as practicable in their respective International
Underwriting Percentages.
Xxxxxx Xxxxxxx & Co. International Limited will advise us promptly as
to the number of Shares purchased by us that we shall retain for direct sale. At
any time prior to the termination of this Agreement, any Shares purchased by us
that are held
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by Xxxxxx Xxxxxxx & Co. International Limited for sale for our account as set
forth above but not sold may, upon our request and at Xxxxxx Xxxxxxx & Co.
International Limited's discretion, be released to us for direct sale, and
Shares so released to us shall no longer be deemed held for sale by you.
From time to time prior to the termination of this Agreement, at Xxxxxx
Xxxxxxx & Co. International Limited's request, we will advise it of the number
of Shares remaining unsold that were retained by or released to us for direct
sale and of the number of Shares remaining unsold that were delivered to us
pursuant to Article III and, at Xxxxxx Xxxxxxx & Co. International Limited's
request, we will release to it any such Shares remaining unsold for sale by it
(i) for our account to dealers or certain other persons or (ii) if in its
opinion, such Shares are needed to make delivery against sales made pursuant to
Article III.
III.
We confirm that, pursuant to the Agreement Between U.S. and
International Underwriters, the International Underwriters are authorizing
Xxxxxx Xxxxxxx & Co. Incorporated to buy and sell Common Stock for the accounts
of the several Underwriters, including the International Underwriters, in the
open market or otherwise, for long or short account, on such terms as it shall
deem advisable and to over-allot in arranging sales. Any shares of Common Stock
that may have been purchased by the U.S. Representatives for stabilizing
purposes in connection with the offering of the Shares prior to the execution of
this Agreement and the Agreement Between U.S. and International Underwriters
shall be treated as having been purchased pursuant to this paragraph and the
Agreement Between U.S. and International Underwriters for the accounts of the
several Underwriters. We authorize Xxxxxx Xxxxxxx & Co. International Limited to
over-allot in arranging sales. We recognize that the International Primary
Market Association (IPMA) limits will not be complied with in connection with
stabilization losses and expenses. Subject to the provisions of the Agreement
Between U.S. and International Underwriters, all such purchases, sales and
over-allotments for the International Underwriters as a group shall be for the
accounts of the several International Underwriters as nearly as practicable in
their respective International Underwriting Percentages. At no time shall our
net commitment pursuant to the foregoing authorization exceed 15% of our
Original Purchase Obligation, and, in determining our net commitment for short
account, there shall be subtracted any Shares that you have agreed to purchase
for our account pursuant to Article I of the Agreement Between U.S. and
International Underwriters. On demand we will take up and pay for any shares of
Common Stock so purchased for our account and deliver against payment any shares
of Common Stock so sold or over-allotted for our account. The International
Representatives agree to notify us of the date of termination of stabilization
when so notified by Xxxxxx Xxxxxxx & Co. Incorporated pursuant to the Agreement
Between U.S. and International Underwriters.
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If pursuant to the provisions of the preceding paragraph and prior to
the termination of this Agreement (or prior to such earlier date as the
International Representatives may have determined), the U.S. Representatives
purchase or contract to purchase in the open market or otherwise any Shares
that were retained by or released to us for direct sale, or any Shares that may
have been issued on transfer of or in exchange for such Shares, and which
Shares were therefore not effectively placed for investment by us, we authorize
the International Representatives either to charge our account with an amount
equal to the selling concession with respect thereto, which amount shall be
credited against the cost of such Shares, or to require us to repurchase such
Shares at a price equal to the total cost of such purchase, including
commissions, if any, and any taxes on redelivery.
IV.
On the Closing Date (as defined in the Underwriting Agreement), prior
to 8:45 A.M. (New York City time) we will deliver to Xxxxxx Xxxxxxx & Co.
International Limited, Federal or other funds immediately available in New York
City in the manner as you shall advise for (i) an amount equal to the offering
price less the selling concession in respect of the Shares to be purchased by
us, (ii) an amount equal to the offering price less the selling concession in
respect of such of the Shares to be purchased by us as shall have been retained
by or released to us for direct sale or (iii) the amount set forth or indicated
in a telex to us, as you shall advise. You will make payment to the Company
against delivery to you for our account of the Shares to be purchased by us and
you will deliver to us the Shares paid for by us which shall have been retained
by or released to us for direct sale. Unless we promptly give you written
instructions otherwise, if transactions in the Shares may be settled through the
facilities of The Depository Trust Company, payment for and delivery of Shares
purchased by us will be made through such facilities, if we are a member, or, if
we are not a member, settlement may be made through our ordinary correspondent
who is a member.
V.
We authorize you as Lead Managers to charge our account, as
compensation for your services in connection with this issue, including the
purchase from the Company, the Selling Shareholders and the management of the
offering, $___ a share for each Share that we have agreed to purchase pursuant
to Section 2 of the Underwriting Agreement.
We authorize you to charge to our account (i) our International
Underwriting Percentage of all expenses incurred by you under the terms of this
Agreement or in
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connection with or attributable to the purchase, carrying and sale of Shares
pursuant to this Agreement (including all expenses, if any, incurred for the
account of the International Underwriters pursuant to the Agreement Between U.S.
and International Underwriters), and (ii) all transfer taxes paid or payable on
our behalf on purchases, sales or transfers made for our account pursuant to
this Agreement.
VI.
We authorize you to advance your own funds for our account, charging
interest rates prevailing from time to time, or to arrange loans for our account
for the purpose of carrying out the provisions of this Agreement or the
Agreement Between U.S. and International Underwriters and in connection
therewith to hold or pledge as security therefor all or any Shares which you may
be holding for our account under this Agreement.
Out of payment received by you for Shares sold for our account which
have been paid for by us, you will remit to us promptly an amount equal to the
price paid by us for such Shares.
Xxxxxx Xxxxxxx & Co. International Limited may deliver to us or
transfer to our account from time to time against payment, for carrying purposes
only, any Shares purchased by us or for our account under this Agreement that it
is holding for sale for our account but that are not sold and paid for. We will
transfer back to Xxxxxx Xxxxxxx & Co. International Limited against payment at
such times as it may demand any Shares so transferred to us for carrying
purposes.
VII.
This Agreement shall terminate 30 days from the date hereof, unless
sooner terminated by you, provided that you may in your discretion extend this
Agreement for a further period or periods not exceeding an aggregate of 30 days.
You may at your discretion on notice to us prior to the termination of this
Agreement alter any of the terms or conditions of offering determined pursuant
to Article II hereof or Article III of the Agreement Between U.S. and
International Underwriters, or terminate or suspend in whole or in part the
effectiveness of Article III hereof or paragraphs five through nine of Article
IV thereof. No termination or suspension pursuant to this paragraph shall affect
your or Xxxxxx Xxxxxxx & Co. Incorporated's authority under Article III to cover
any short or close any long position incurred under this
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Agreement prior to such termination or suspension.
Upon termination of this Agreement, or prior thereto at your
discretion, Xxxxxx Xxxxxxx & Co. International Limited shall deliver to us or
transfer to our account any Shares purchased by us from the Company and the
Selling Shareholders or pursuant to the Agreement Between U.S. and International
Underwriters and held by Xxxxxx Xxxxxxx & Co. International Limited for sale for
our account to dealers or others but not sold and paid for and any shares of
Common Stock which are held by Xxxxxx Xxxxxxx & Co. International Limited for
our account pursuant to Article III. As soon as practicable after termination of
this Agreement our account hereunder shall be settled and paid. Xxxxxx Xxxxxxx &
Co. International Limited may reserve from distribution such amount as it deems
advisable to cover possible additional amounts due from us. Determination by
Xxxxxx Xxxxxxx & Co. International Limited of amounts to be paid to or by us
shall be final and conclusive. Any of our funds in Xxxxxx Xxxxxxx & Co.
International Limited's hands may be held with its general funds without
accountability for interest.
Notwithstanding any settlement on the termination of this Agreement,
each International Underwriter agrees to pay its International Underwriting
Percentage of (i) all expenses incurred by you in investigating or defending
against any claim or proceeding which is asserted or instituted by any party
(including any governmental or regulatory body) other than an Underwriter
relating to the Registration Statement or the Prospectus (as defined in the
Underwriting Agreement) (or any amendment or supplement thereto) or any
preliminary prospectus and (ii) any liability, including attorneys' fees,
incurred by you in respect of any such claim or proceeding, whether such
liability shall be the result of a judgment or as a result of any settlement
agreed to by you, other than any such expense or liability as to which you
receive indemnity payments pursuant to the following paragraph, Article III of
the Agreement Between U.S. and International Underwriters or Section 7 of the
Underwriting Agreement.
We agree to indemnify and hold harmless each other Underwriter and each
person, if any, who controls any such Underwriter within the meaning of either
Section 15 of the Act or Section 20 of the U.S. Securities Exchange Act of 1934,
as amended, to the extent and upon the terms which we agree to indemnify and
hold harmless the Company, its shareholders, directors, the officers of the
Company who sign the Registration Statement and any person controlling the
Company as set forth in the Underwriting Agreement.
Our agreements contained in the second through fourth paragraphs of
Article II and this Article VII shall remain operative and in full force and
effect regardless of any termination of this Agreement or the occurrence of any
of the events described in clauses (i) through (iii) of the last paragraph of
Section 7 of the Underwriting Agreement.
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VIII.
We have examined the prospectus included in the Registration Statement
as amended to date and we are familiar with the terms of the securities being
offered and the other terms of offering which are to be reflected in the
proposed amendment to the Registration Statement. In addition, we confirm that
the information relating to us which has been furnished to the Company for use
therein is correct. You are authorized, with the approval of counsel for the
Underwriters, to approve on our behalf such proposed amendment and any further
amendments or supplements to the Registration Statement or the International
Prospectus.
We represent that our commitment to purchase Shares hereunder and under
the Agreement Between U.S. and International Underwriters will not result in a
violation of any financial responsibility requirements of any laws, rules or
regulations applicable to us, including applicable rules of any securities
exchange.
IX.
If the Underwriting Agreement is terminated as permitted by the terms
thereof, our obligations hereunder shall immediately terminate except that (i)
our obligations as set forth in the last paragraph of Article VII shall remain
in full force and effect, (ii) we shall remain liable for our International
Underwriting Percentage of all expenses and for any purchases or sales which may
have been made for our account pursuant to the provisions of Article III,
including any taxes on any such purchases or sales and (iii) such termination
shall not affect any obligation of any defaulting International Underwriter.
In the event that any International Underwriter shall default in its
obligations (i) pursuant to the second paragraph of Article II or the first
paragraph of Article III, (ii) to pay amounts owed by it pursuant to Article V
or (iii) pursuant to the third or fourth paragraph of Article VII or the first
paragraph of this Article IX, we will assume our proportionate share (determined
on the basis of the International Underwriting Percentages of the non-defaulting
International Underwriters) of such obligations, but no such assumption shall
affect any obligation of any defaulting International Underwriter.
If any one or more of the Underwriters shall fail or refuse to purchase
any Shares which it or they have agreed to purchase under the Underwriting
Agreement, we agree, in the proportion which the number of Firm Shares set forth
opposite our name in Schedule III to the Underwriting Agreement bears to the
aggregate number of Firm Shares set forth opposite the names of all
non-defaulting Underwriters, or in such other proportions as you may specify, to
purchase the Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase; provided that, in no event shall the Shares that
any International Underwriter has
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agreed to purchase pursuant to Section 2 of the Underwriting Agreement be
increased pursuant to this Article IX by an amount in excess of one-ninth of the
number of such Shares, without the written consent of such International
Underwriter. Xxxxxx Xxxxxxx & Co. International Limited is authorized to arrange
for the purchase by others (including itself and any other International
Underwriter) of any Shares not purchased by any defaulting International
Underwriter or by the other International Underwriters as provided in this
paragraph and in Section 9 of the Underwriting Agreement. If such arrangements
are made, the respective numbers of Shares to be purchased by the remaining
International Underwriters and such other person or persons, if any, shall be
taken as the basis for all rights and obligations hereunder. Any action taken
under this paragraph shall not relieve any defaulting International Underwriter
from liability in respect of any default of such International Underwriter under
the Underwriting Agreement or this Agreement.
Nothing herein contained shall constitute us partners with you or with
the other Underwriters and the obligations of ourselves and of each of the other
Underwriters are several and not joint. If for United States federal income tax
purposes the International Underwriters shall be deemed to constitute a
partnership, each International Underwriter elects to be excluded from the
application of Subchapter K, Chapter 1, Subtitle A, of the United States
Internal Revenue Code, as amended.
You shall be under no liability to us for any act or omission except in
respect of obligations expressly assumed by you herein.
This Agreement is being executed by us and delivered to you in
duplicate. Upon your confirmation hereof and agreements in identical form with
each of the other Underwriters, this Agreement shall constitute a valid and
binding contract between us.
Your authority hereunder and under the Underwriting Agreement and the
Agreement Between U.S. and International Underwriters may be exercised by Xxxxxx
Xxxxxxx & Co. International Limited, jointly or by Xxxxxx Xxxxxxx & Co.
International Limited alone. The authority of the U.S. Representatives hereunder
and under the Agreement Between U.S. and International Underwriters may be
exercised by Xxxxxx Xxxxxxx & Co. Incorporated, The Xxxxxxxx-Xxxxxxxx Company
LLC, X.X. Xxxxxxxx & Co. and SunTrust Equitable Securities Corporation, either
jointly or alone.
This Agreement may be executed in two or more counterparts which
together shall constitute one and the same instrument. If this Agreement is
executed by or on behalf of any party hereto by a person acting under the power
of attorney given him by such party, such person hereby states that at the time
of execution hereof he has no notice of revocation of the power of attorney by
which he has executed this Agreement as such attorney.
This Agreement shall be governed by and construed in accordance with
the laws
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of the State of New York and United States federal law.
Very truly yours,
XXXXXX XXXXXXX & CO. INTERNATIONAL
LIMITED
By
---------------------------------
Attorney-in-fact for each
of the several International
Underwriters named in Schedule III
to the Underwriting Agreement
Confirmed as of the date hereof
XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
THE XXXXXXXX-XXXXXXXX COMPANY LLC
X.X. XXXXXXXX & CO.
SUNTRUST EQUITABLE SECURITIES CORPORATION
By XXXXXX XXXXXXX & CO. INTERNATIONAL LIMITED
By
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