EXHIBIT(h)(4)
SHEARSON
XXXXXX
BROTHERS
November 5, 1985
Dear Sirs:
From time to time in the future, in connection with underwritten public
offerings of securities in which we act as representative of the underwriters
comprising the underwriting syndicates, you may be invited to participate in the
distribution of such securities as a Selected Dealer.
Attached hereto are the basic provisions of the Master Dealers
Agreement (the "Basic Provisions") that will be applicable to any such
underwritten public offering where we are the lead representative and we
expressly inform you that such basic provisions are applicable. Acceptance by
you by telegram, telex, Graphic Scanning or telephone call (confirmed
immediately in writing) of a Terms Telex referred to in the Basic Provisions
shall reconfirm (or, if you have not signed and returned this letter to us,
shall confirm) your acceptance of and agreement to the terms and conditions set
forth in the Basic Provisions, insofar as such terms and conditions apply to the
securities referred to in the Terms Telex, and shall constitute a binding
agreement between yourselves and the several Underwriters of such securities.
Please acknowledge your agreement to the foregoing procedure by signing
and returning the enclosed duplicate copy of this letter (and the attached Basic
Provisions) to us, attention of Xx. Xxxxxx Xxxxxxxxx, Syndicate Registration,
000 0xx Xxxxxx, Xxx Xxxx, XX 00000.
Very truly yours,
SHEARSON XXXXXX BROTHERS INC.
By: __________________________
XXXXXXX X. XXXXX, XX.
Managing Director
Acknowledged: , 20
_________________________________________________
(Selected Dealer's name and address, including zip code)
By ______________________________________
(Sign name clearly and print title)
SHEARSON XXXXXX BROTHERS INC.
MASTER DEALERS AGREEMENT
BASIC PROVISIONS FOR OFFERINGS OF SECURITIES
November 5, 1985
These basic provisions (the "Basic Provisions") set forth the general
terms and conditions pursuant to which, in connection with a proposed
underwritten public offering of securities (the "Securities"), a portion of the
Securities will be offered to certain selected dealers (the "Selected Dealers").
1. SELLING GROUP ARRANGEMENTS. (a) From time to time in,
connection with certain public offerings of the Securities by underwriters (the
"Underwriters") to be represented by Xxxxxxxx Xxxxxx Brothers Inc., either alone
or with one or more other firms (the "Representatives"), the Representatives may
offer one or more Selected Dealers the right to purchase as principal a portion
of the Securities being distributed in the offering (the "Offering") on the
terms and conditions set forth herein, which shall be deemed to include the
terms and conditions set forth in any letter, wire, telex or other written
communication or telephone call (confirmed immediately in writing) sent or made
to prospective Selected Dealers in connection with the terms of any particular
public offering of Securities (the "Terms Telex"), provided that the terms and
conditions set forth herein and therein shall be applicable only to public
offerings with respect to which Shearson Xxxxxx Brothers Inc. has expressly
informed Selected Dealers that such terms and conditions shall be applicable.
The Terms Telex and these Basic Provisions are together referred to herein as
this "Agreement".
(b) The Terms Telex specifies, with respect to the Selected Dealer
to whom such Terms Telex is addressed, (i) the amount of the Securities to be
allotted to such Selected Dealer, (ii) the purchase price to be paid by such
Selected Dealer for the Securities, (iii) the public offering price of the
Securities, or, if the initial public offering price is to be determined by a
formula based on market prices, the terms of the formula, (iv) the interest
rate, if any, (v) the selling concession, if any, to be allowed to Selected
Dealers, (vi) the amount of any reallowance to other dealers and (vii) other
matters, including whether the Underwriters have the option to purchase
additional Securities to cover over-allotments and whether the Underwriters are
authorized to solicit institutional investors to purchase Securities pursuant to
Delayed Delivery Contracts, certain terms thereof and the compensation therefor.
(c) By its acceptances of this Agreement by telegram, telex,
Graphic Scanning or telephone call (confirmed immediately in writing) in
accordance with the terms hereof and its acceptance of an allotment of
Securities as set forth in the Terms Telex, each Selected Dealer agrees that it
will purchase, on the terms and conditions set forth in the Terms Telex, herein
and in the Prospectus referred to below, the amount of such Securities allotted
to it. Acceptance of any reserved Securities received after the time specified
therefor in the Terms Telex and any application for additional Securities will
be subject to rejection in whole or in part. Subscription books may be closed by
the Representatives at any time in the Representatives' discretion without
notice and the right
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is reserved to reject any subscription in whole or in part, but notification of
allotments against and rejections of subscriptions will be made as promptly as
practicable.
2. REGISTRATION STATEMENT AND PROSPECTUS. (a) As used in this
Agreement, the term "Registration Statement" means the registration statement,
as amended, filed with respect to the Securities under the Securities Act of
1933 (the "Act"), and the terms "Preliminary Prospectus" and "Prospectus" mean
any preliminary prospectus and the prospectus (including any basic prospectus
and prospectus supplement and any documents incorporated by reference)
authorized for use in connection with the offering of the Securities. Such
number of copies of each Prospectus (and any documents incorporated by reference
in any Prospectus) as may reasonably be requested by any Selected Dealer will be
delivered to it.
(b) The Underwriters named in the Prospectus have severally
agreed, subject to the terms and conditions of the Underwriting Agreement
referred to therein, to purchase from the Issuer (the "Company") or the seller
of the Securities named in the Prospectus, the securities described in the
Prospectus. The Securities are more particularly described in the Prospectus.
3. ROLE OF REPRESENTATIVES. The Representatives are acting as
representatives of each of the Underwriters in all matters connected with the
offering of the Securities and with the Underwriters' purchases of the
Securities. Any action to be taken by the Representatives under this Agreement
may be taken by Xxxxxxxx Xxxxxx Brothers Inc.
4. OFFERING OF THE SECURITIES. (a) The Representatives have
advised each Selected Dealer of the release by the Representatives of the
Securities for public offering and of the public offering price. Upon receipt of
such advice, any of the Securities thereafter purchased by such Selected Dealer
pursuant to this Agreement are to be offered by such Selected Dealer to the
public at the public offering price, subject to the terms of this Agreement.
Except as otherwise provided herein, the Securities shall not be offered or sold
by any Selected Dealer below the public offering price before the termination of
this Agreement, except that a concession from the public offering price of not
in excess of the amount set forth in the Prospectus may be allowed either to
dealers who are members in good standing of the NASD or to foreign dealers not
eligible for membership in the NASD and who, in each case, will agree as
provided in Paragraph 12 of these Basic Provisions.
(b) The Representatives as such, and, with the Representatives'
consent, any Underwriter may buy Securities from, or sell Securities to, any of
the Selected Dealers or any of the Underwriters, and any Selected Dealer may buy
Securities from, or sell Securities to, any other Selected Dealer or any
Underwriter at the public offering price less all or any pat of the concession
to Selected Dealers.
(c) Each Selected Dealer agrees to pay the Representatives on
demand for the accounts of the several Underwriters an amount equal to the
Selected Dealer concession as to any Securities purchased by such Selected
Dealer pursuant to this Agreement, which, prior to the termination of this
Agreement, the Representatives may purchase or contract to purchase of the
account of any Underwriter or which may be delivered against
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purchase contracts made prior to the termination of this Agreement and, in
addition, the Representatives may charge such Selected Dealer with any broker's
commission and transfer tax paid in connection with such purchases or contract
to purchase. Securities delivered on such repurchases need not be the identical
Securities originally purchased.
(d) No expenses shall be charged to Selected Dealers. A single
transfer tax upon the sale of the Securities by the respective Underwriters to a
Selected Dealer will be paid when such Securities are delivered to such Selected
Dealer. However, each Selected Dealer shall pay any transfer tax on sales of
Securities by it and each Selected Dealer shall pay its proportionate share of
any transfer tax or other tax (other than the single transfer tax described
above) in the event that any such tax shall from time to time be assessed
against it and other Selected Dealers as a group or otherwise.
5. PAYMENT AND DELIVERY. (a) Securities purchased by any Selected
Dealer pursuant to this Agreement shall be paid for at the cost price to such
Selected Dealer on the delivery date specified in the Terms Telex, on one day's
notice, by certified or official bank check payable in New York Clearing House
funds or, if specified in the Terms Telex, immediately available funds to the
other of Shearson Xxxxxx Brothers Inc., at the office of Shearson Xxxxxx
Brothers Inc., 000 Xxxxxxxxx Xxxxxx (Cashier's Window, Main Level), New York,
N.Y. 10013, or such other address as the Selected Dealer may be notified by the
Representatives, against delivery of such Securities.
(b) If payment is made for Securities purchased by a Selected
Dealer at the public offering price, the concession to which such Selected
Dealer may be entitled will be paid to such Selected Dealer upon termination of
this Agreement, as it applies to such Securities.
(c) If a Selected Dealer is a member of, or clears through a
member of, the Depository Trust Company ("DTC"), the Representatives may, in
their discretion, deliver such Selected Dealer's Securities through the
facilities of DTC.
(d) The offering of the Securities is made subject to the
conditions referred to on the cover of the Prospectus and to the terms and
conditions set forth in this Agreement and may be made on the basis of the
reservation of the Securities or an allotment against subscriptions, and is not
joint but several.
6. DELIVERY OF PROSPECTUS. (a) The Underwriters have been advised
by the Company that the Registration Statement in respect of the Securities has
become effective. Each Selected Dealer, in selling Securities purchased pursuant
to this Agreement, agrees (which agreement shall also be for the benefit of the
Company and any selling securityholder) that such Selected Dealer will comply
with the applicable requirements of the Act and of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), and applicable rules and regulations
issued under the Act and the Exchange Act.
(b) With respect to Rule 15c2-8 of the Exchange Act, each Selected
Dealer confirms that it has itself delivered and will itself deliver copies of
all Preliminary Prospectuses and Prospectuses required under the provisions
thereof.
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(c) Each Selected Dealer confirms that in purchasing the
Securities, it has relied upon no statements whatsoever, written or oral, other
than the statements in the Prospectus, as delivered to such Selected Dealer by
the Representatives.
7. OVER-ALLOTMENTS AND STABILIZATION. Each of the Underwriters
has authorized the Representatives to (i) over-allot in arranging for sales of
the Securities to the Selected Dealers, and purchase the Securities at such
prices as the Representatives may determine for the purpose of covering such
over-allotments and (ii) for the purpose of stabilizing the market in the
Securities, make purchases and sales of the Securities or other securities of
the Company which the Representatives may designate for purchase or sale in
stabilizing transactions ("Stabilized Securities"), for long or short account.
8. OPEN MARKET TRANSACTIONS. Each Selected Dealer agrees that,
except as herein otherwise provided, until the termination of this Agreement or
until notified by the Representatives prior thereto that such Selected Dealer is
released from this restriction, it will not buy, sell, deal or trade in the
Securities, securities convertible into common stock of the Company ("Common
Stock") or Stabilized Securities or, if options to purchase Securities or Common
Stock into which Securities may be convertible are traded on any securities
exchanges, buy any right or option to purchase Securities or Common Stock for
its own account or for the accounts of customers except on unsolicited brokerage
orders therefor received and executed in the ordinary course of its brokerage
business. Each Selected Dealer further agrees that it will not lend any shares
of Common Stock, either before or after the purchase of the Securities, to any
customer, Underwriter, Selected Dealer or to any other securities broker or
dealer. Each Selected Dealer represents that it has not participated, since the
date on which it was invited by the Representatives to participate in the
Offering, in any transactions prohibited by the foregoing provisions of this
Paragraph 8 and that it has at all times complied with the provisions of Rule
10b-6 under the Exchange Act applicable to the offering of the Securities.
9. ROLE OF SELECTED DEALER; RELATIONSHIP WITH UNDERWRITERS. (a)
No person is authorized to give any information or to make any representations,
other than those contained in any Prospectus in connection with the offering or
sale of the Securities. Each Selected Dealer is to act as principal in
purchasing Securities and is not authorized to act as agent for the Company or
any selling securityholder or any of the Underwriters in offering the Securities
to the public or otherwise.
(b) Nothing contained in this Agreement shall constitute the
Selected Dealers partners with any of the Underwriters or with one another. If
the Selected Dealers, among themselves or with the Underwriters, are deemed to
constitute a partnership for Federal income tax purposes, it is the intent of
each Selected Dealer to be excluded from the application of Subchapter K,
Chapter I., Subtitle A of the Internal Revenue Code of 1954, as amended, and
each Selected Dealer elects to be so excluded and agrees not to take any
position inconsistent with that election. Each Selected Dealer authorizes the
representatives, in their discretion, to execute and file on behalf of such
Selected Dealer any evidence of that election which may be required by the
Internal Revenue Service.
(c) The Representatives, as such, shall have full authority to
take such action as they may deem advisable in respect of all matters pertaining
to the Offering or arising under this Agreement. Neither the Representatives, as
such, nor any of the Underwriters
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shall be under any liability to any Selected Dealer, except such as may be
incurred under the Act and except for lack of good faith and for obligations
assumed by the Representatives in this Agreement. No obligation of the
Representatives' part shall be implied or inferred herefrom.
10. BLUE SKY MATTERS. Upon application to the Representatives, any
Selected Dealer will be informed as to the States in which the Representatives
have been advised by counsel the Securities have been qualified for sale or are
exempt under the respective securities or blue sky laws of such States, but the
Representatives have not assumed and will not assume any obligation or
responsibility as to the right of any Selected Dealer to sell any of the
Securities in any such State.
11. REPORTS OF SELECTED DEALER. Each Selected Dealer agrees, upon
the Representatives' request, at any time or times prior to the termination of
this Agreement, to report to the Representatives as to the amount of the
Securities purchased by such Selected Dealer pursuant to the provisions of this
Agreement which then remain unsold.
12. NASD MEMBERSHIP. Each Selected Dealer represents that it is a
member in good standing of the National Association of Securities Dealers, Inc.
(the "NASD") or a foreign dealer not eligible for membership in the NASD. If
such Selected Dealer is a member of the NASD, it agrees to comply with the
requirements of Section 24 of Article III of the Rules of Fair Practice of the
NASD, and it agrees not to grant any concessions, discounts or other allowances
which are not permitted by that section. If such Selected Dealer is a foreign
dealer not eligible for membership in the NASD, it agrees that it will not make
any sales of the Securities in, or to nationals or residents of, the United
States, its territories or its possessions, and that in making any sales of the
Securities it will comply, as though it is a member of the NASD, with (a) the
interpretation of the Board of Governors of the NASD entitled "Free-Riding and
Withholding," (b) the requirements of Sections 8.24 and 36 of Article III of the
Rules of Fair Practice of the NASD and (c) to the extent applicable to it, the
requirements of Section 25 of such Article III.
13. TERMINATION AND AMENDMENT. (a) All Selected Dealers will be
governed by the conditions set forth in this Agreement until this Agreement is
terminated. This Agreement will terminate at the close of business on the
fifteenth day after the date of the initial public offering of the Securities,
but, in the Representatives' discretion, may be extended by the Representatives
for a further period not exceeding fifteen days and, in the Representatives'
discretion, whether or not extended, may be terminated at any earlier time.
Notwithstanding the termination of this Agreement, each Selected Dealer shall
remain liable to the extent provided by law for its proportionate amount of any
claim, demand or liability which may be asserted against it alone, or against it
together with other dealers purchasing Securities upon the terms of this
Agreement, or against the Representatives, based upon the claim that the
Selected Dealers, or any of them, constitute an association, an unincorporated
business or other separate entity.
(b) This Agreement may be amended by the Representatives upon
written notice to Selected Dealers, and any such amendment shall be effective
with respect to any Offering to which this Agreement applies on the date of such
amendment.
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(c) This Agreement may be terminated by either party hereto upon
five business days' written notice to the other party; provided that with
respect to any Offering for which a Terms Telex was sent and accepted prior to
such notice, this Agreement as it applies to such Offering shall remain in full
force and effect and shall terminate with respect to such Offering in accordance
with subparagraph (a) of this Paragraph 13.
14. NOTICES. Any notice from the Representatives to any Selected
Dealer shall be deemed to have been duly given if mailed, telephoned (and
confirmed in writing) or telegraphed to such Selected Dealer at the address set
forth in the Terms Telex sent to such Selected Dealer. Any notice from any
Selected Dealer to the Representatives shall be deemed to have been duly given
if mailed, telephoned (and confirmed in writing) or telegraphed to Shearson
Xxxxxx Brothers Inc. at American Express Tower, World Financial Center, New
York, New York 10013, Attention Syndicate Department (or to such other address
as the Selected Dealer may be notified by the Representatives).
15. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of New York, without giving effect to the
choice of law or conflicts of law principles thereof.
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