MASTER SELECTED DEALER AGREEMENT
July 1, 1999
Ladies and Gentlemen:
In connection with registered public offerings of securities for which
we are acting as manager or co-manager of an underwriting syndicate or
unregistered offerings of securities for which we are acting as manager or
co-manager of the initial purchasers, you may be offered the right as a
selected dealer to purchase as principal a portion of such securities. This
will confirm our mutual agreement as to the general terms and conditions
applicable to your participation in any such selected dealer group.
1. APPLICABILITY OF THIS AGREEMENT. The terms and conditions of this
Agreement shall be applicable to any offering of securities ("Securities"),
whether pursuant to a registration statement filed under the Securities Act
of 1933, as amended (the "Securities Act"), or exempt from registration
thereunder, in respect of which Xxxxxxx Xxxxx Xxxxxx Inc. (acting for its
own account or for the account of any underwriting or similar group or
syndicate) is responsible for managing or otherwise implementing the sale
of the Securities to selected dealers ("Selected Dealers") and has
expressly informed you that such terms and conditions shall be applicable.
Any such offering of Securities to you as a Selected Dealer is hereinafter
called an "Offering". In the case of any Offering where we are acting for
the account of any underwriting or similar group or syndicate
("Underwriters"), the terms and conditions of this Agreement shall be for
the benefit of, and binding upon, such Underwriters, including, in the case
of any Offering where we are acting with others as representatives of
Underwriters, such other representatives.
2. CONDITIONS OF OFFERING; ACCEPTANCE AND PURCHASES. Any Offering will
be subject to delivery of the Securities and their acceptance by us and
any other Underwriters, may be subject to the approval of all legal matters
by counsel and the satisfaction of other conditions, and may be made on the
basis of reservation of Securities or an allotment against subscription. We
will advise you by telecopy, telex or other form of written communication
("Written Communication", which term, in the case of any Offering described
in Section 3(a) or 3(b) hereof, may include a prospectus or offering
circular) of the particular method and supplementary terms and conditions
(including, without limitation, the information as to prices and the
offering date referred to in Section 3(c) hereof) of any Offering in which
you are invited to participate. To the extent such supplementary terms and
conditions are inconsistent with any provision herein, such terms and
conditions shall supersede any such provision. Unless otherwise indicated
in any such Written Communication, acceptances and other communications by
you with respect to an Offering should be sent to the appropriate Syndicate
Department of Xxxxxxx Xxxxx Barney Inc. We may close the subscription books
at any time in our sole discretion without notice, and we reserve the right
to reject any acceptance in whole or in part.
Unless notified otherwise by us, Securities purchased by you shall be
paid for on such date as we shall determine, on one day's prior notice to
you, by wire transfer payable in immediately available funds to the order
of Xxxxxxx Xxxxx Xxxxxx Inc., in an amount equal to the Public Offering
Price (as hereinafter defined) or, if we shall so advise you, at such
Public Offering Price less the Concession (as hereinafter defined). If
Securities are purchased and paid for at such Public Offering Price, such
Concession will be paid after the termination of the provisions of Section
3(c) hereof with respect to such Securities. Unless notified otherwise by
us, payment for and delivery of Securities purchased by you shall be made
through the facilities of The Depository Trust Company, if you are a
member, unless you have otherwise notified us prior to the date specified
in a Written Communication to you from us or, if you are not a member,
settlement may be made through a correspondent who is a member pursuant to
instructions which you will send to us prior to such specified date.
3. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
(A) REGISTERED OFFERINGS. In the case of any Offering of Securities
which are registered under the Securities Act ("Registered Offering"), we
will make available to you as soon as practicable after sufficient copies
are made available to us by the issuer of the Securities such number of
copies of each preliminary prospectus and of the final prospectus relating
thereto as you may reasonably request for the purposes contemplated by the
Securities Act and the Securities Exchange Act of 1934, as amended (the
"Exchange Act") and the applicable rules and regulations of the Securities
and Exchange Commission thereunder.
You represent and warrant that you are familiar with Rule 15c2-8 under
the Exchange Act relating to the distribution of preliminary and final
prospectuses and agree that you will comply therewith. You agree to make a
record of your distribution of each preliminary prospectus and when
furnished with copies of any revised preliminary prospectus, you will
promptly forward copies thereof to each person to whom you have theretofore
distributed a preliminary prospectus.
You agree that in purchasing Securities in a Registered Offering you
will rely upon no statement whatsoever, written or oral, other than the
statements in the final prospectus delivered to you by us. You will not be
authorized by the issuer or other seller of Securities offered pursuant to
a prospectus or by any Underwriters to give any information or to make any
representation not contained in the prospectus in connection with the sale
of such Securities.
(B) OFFERINGS PURSUANT TO OFFERING CIRCULAR. In the case of any
Offering of Securities, other than a Registered Offering, which is made
pursuant to an offering circular or other document comparable to a
prospectus in a Registered Offering, we will make available to you as soon
as practicable after sufficient copies are made available to us by the
issuer of the Securities such number of copies of each preliminary offering
circular and of the final offering circular relating thereto as you may
reasonably request. You agree that you will comply with applicable Federal,
state and other laws, and the applicable rules and regulations of any
regulatory body promulgated thereunder, governing the use and distribution
of offering circulars by brokers or dealers. You agree that in purchasing
Securities pursuant to an offering circular you will rely upon no
statements whatsoever, written or oral, other than the statements in the
final offering circular delivered to you by us. You will not be authorized
by the issuer or other seller of Securities offered pursuant to an offering
circular or by any Underwriters to give any information or to make any
representation not contained in the offering circular in connection with
the sale of such Securities.
(C) OFFER AND SALE TO THE PUBLIC. The Offering of Securities is made
subject to the conditions referred to the prospectus or offering circular
relating to the Offering and to the terms and conditions set forth in this
Agreement. With respect to any Offering of Securities, we will inform you
by a Written Communication of the public offering price, the selling
concession, the reallowance (if any) to dealers and the time when you may
commence selling Securities to the public. After such public offering has
commenced, we may change the public offering price, the selling concession
and the reallowance to dealers. The offering price, selling concession and
reallowance (if any) to dealers at any time in effect with respect to an
Offering are hereinafter referred to, respectively, as the "Public Offering
Price", the "Concession" and the "Reallowance". With respect to each
Offering of Securities, until the provisions of this Section 3(c) shall be
terminated pursuant to Section 4 hereof, you agree to offer Securities to
the public only at the Public Offering Price, except that if a Reallowance
is in effect, a Reallowance from the Public Offering Price not in excess of
such Reallowance may be allowed as consideration for services rendered in
distribution to dealers who are actually engaged in the investment banking
or securities business who are either members in good standing of the NASD
who agree to abide by the applicable rules of the NASD (see Section 3(e)
below) or foreign banks, dealers or institutions not eligible for
membership in the NASD who represent to you that they will promptly reoffer
such Securities at the Public Offering Price and will abide by the
conditions with respect to foreign banks, dealers and institutions set
forth in Section 3(e) hereof.
(D) OVER-ALLOTMENT; STABILIZATION; UNSOLD ALLOTMENTS. We may, with
respect to any Offering, be authorized to over-allot in arranging sales to
Selected Dealers, to purchase and sell Securities for long or short account
and to stabilize or maintain the market price of the Securities. You agree
that upon our request at any time and from time to time prior to the
termination of the provisions of Section 3(c) hereof with respect to any
Offering, you will report to us the amount of Securities purchased by you
pursuant to such Offering which then remain unsold by you and will, upon
our request at any such time, sell to us for our account or the account of
one or more Underwriters such amount of such unsold Securities as we may
designate at the Public Offering Price less an amount to be determined by
us not in excess of the Concession. If, prior to the later of (a) the
termination of the provisions of Section 3(c) hereof with respect to any
Offering, or (b) the covering by us of any short position created by us in
connection with such Offering for our account or the account of one or more
Underwriters, we purchase or contract to purchase for our account or the
account of one or more Underwriters in the open market or otherwise any
Securities purchased by you under this Agreement as part of such Offering,
you agree to pay us on demand for the account of the Underwriters an amount
equal to the Concession with respect to such Securities (unless you shall
have purchased such Securities pursuant to Section 2 hereof at the Public
Offering Price and you have not received or been credited with any
Concession, in which case we shall not be obligated to pay such Concession
to you pursuant to Section 2) plus transfer taxes and broker's commissions
or dealer's xxxx-up, if any, paid in connection with such purchase or
contract to purchase.
(E) NASD. You represent and warrant that you are actually engaged in the
investment banking or securities business and either are a member in good
standing of the NASD or, if you are not such a member, you are a foreign
bank, dealer or institution not eligible for membership in the NASD which
agrees to make no sales within the United States, its territories or its
possessions or to persons who are citizens thereof or residents therein,
and in making other sales to comply with the NASD's interpretation with
respect to free-riding and withholding. You further represent, by your
participation in an Offering, that you have provided to us all documents
and other information required to be filed with respect to you, any related
person or any person associated with you or any such related person
pursuant to the supplementary requirements of the NASD's interpretation
with respect to review of corporate financing as such requirements relate
to such Offering.
You agree that, in connection with any purchase or sale of the
Securities wherein a selling concession, discount or other allowance is
received or granted, you will (a) if you are a member of the NASD, comply
with all applicable interpretive material ("IM") and Conduct Rules of the
NASD, including, without limitation, IM 2110-1 (relating to Free-Riding and
Withholding) and Conduct Rule 2740 (relating to Selling Concessions,
Discounts and Other Allowances) or (b) if you are a foreign bank or dealer
or institution not eligible for such membership, comply with IM 2110-1 and
with Conduct Rules 2730 (relating to Securities Taken in Trade), 2740
(relating to Selling Concessions) and 2750 (relating to Transactions With
Related Persons) as though you were such a member and Conduct Rule 2420
(relating to Dealing with Non-Members) as it applies to a non-member broker
or dealer in a foreign country.
You further agree that, in connection with any purchase of securities
from us that is not otherwise covered by the terms of this Agreement
(whether we are acting as manager, as member of an underwriting syndicate
or a selling group or otherwise), if a selling concession, discount or
other allowance is granted to you, clauses (a) and (b) of the preceding
paragraph will be applicable.
(F) RELATIONSHIP AMONG UNDERWRITERS AND SELECTED DEALERS. We
may buy Securities from or sell Securities to any Underwriter or Selected
Dealer and, with our consent, the Underwriters (if any) and the Selected
Dealers may purchase Securities from and sell Securities to each other at
the Public Offering Price less all or any part of the Concession. We shall
have full authority to take such action as we deem advisable in all matters
pertaining to any Offering under this Agreement. You are not authorized to
act as agent for us, any Underwriter or the issuer or other seller of any
Securities in offering Securities to the public or otherwise. Neither we
nor any Underwriter shall be under any obligation to you except for
obligations assumed hereby or in any Written Communication from us in
connection with any Offering. Nothing contained herein or in any Written
Communication from us shall constitute the Selected Dealers an association
or partners with us or any Underwriter or with one another. If the Selected
Dealers, among themselves or with the Underwriters, should be deemed to
constitute a partnership for Federal income tax purposes, then you elect to
be excluded from the application of Subchapter K, Chapter 1, Subtitle A of
the Internal Revenue Code of 1986 and agree not to take any position
inconsistent with that election. You authorize us, in our discretion, to
execute and file on your behalf such evidence of that election as may be
required by the Internal Revenue Service. In connection with any Offering
you shall be liable for your proportionate amount of any tax, claim, demand
or liability that may be asserted against you alone or against one or more
Selected Dealers participating in such Offering, or against us or the
Underwriters, based upon the claim that the Selected Dealers, or any of
them constitute an association, an unincorporated business or other entity,
including, in each case, your proportionate amount of any expense incurred
in defending against any such tax, claim, demand or liability.
(G) BLUE SKY LAWS. Upon application to us, we shall inform you as to
any advice we have received from counsel concerning the jurisdictions in
which Securities have been qualified for sale or are exempt under the
securities or blue sky laws of such jurisdictions, but we do not assume any
obligation or responsibility as to your right to sell Securities in any
such jurisdiction.
(H) COMPLIANCE WITH LAW. You agree that in selling Securities pursuant
to any Offering (which agreement shall also be for the benefit of the
issuer or other seller of such Securities), you will comply with all
applicable laws, rules and regulations, including the applicable provisions
of the Securities Act and the Exchange Act, the applicable rules and
regulations of the Securities and Exchange Commission thereunder, the
applicable rules and regulations of the NASD, the applicable rules and
regulations of any securities exchange or other regulatory authority having
jurisdiction over the Offering and the applicable laws, rules and
regulations specified in Section 3(b) hereof. Without limiting the
foregoing, (a) you agree that, at all times since you were invited to
participate in an Offering of Securities, you have complied with the
provisions of Regulation M applicable to such Offering, in each case after
giving effect to any applicable exemptions and (b) you represent that your
incurrence of obligations hereunder in connection with any Offering of
Securities will not result in the violation by you of Rule 15c3-1 under the
Exchange Act, if such requirements are applicable to you.
4. TERMINATION; SUPPLEMENTS AND AMENDMENTS. This Agreement shall
continue in full force and effect until terminated by a written instrument
executed by each of the parties hereto. This Agreement may be supplemented
or amended by us by written notice thereof to you, and any such supplement
or amendment to this Agreement shall be effective with respect to any
Offering to which this Agreement applies after the date of such supplement
or amendment. Each reference to "this Agreement" herein shall, as
appropriate, be to this Agreement as so amended and supplemented. The terms
and conditions set forth in Section 3(c) hereof with regard to any Offering
will terminate at the close of business on the 30th day after the
commencement of the public offering of the Securities to which such
Offering relates, but in our discretion may be extended by us for a further
period not exceeding 30 days and in our discretion, whether or not
extended, may be terminated at any earlier time.
5. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on, and
inure to the benefit of, the parties hereto and other persons specified in
Section 1 hereof, and the respective successors and assigns of each of
them.
6. GOVERNING LAW. This Agreement and the terms and conditions set
forth herein with respect to any Offering together with such supplementary
terms and conditions with respect to such Offering as may be contained in
any Written Communication from us to you in connection therewith shall be
governed by, and construed in accordance with, the laws of the State of New
York applicable to contracts made and to be performed within the State of
New York.
Please confirm by signing and returning to us the enclosed copy of
this Agreement that your subscription to or your acceptance of any
reservation of any Securities pursuant to an Offering shall constitute (i)
acceptance of and agreement to the terms and conditions of this Agreement
(as supplemented and amended pursuant to Section 4 hereof; together with
and subject to any supplementary terms and conditions contained in any
Written Communication from us in connection with such Offering, all of
which shall constitute a binding agreement between you and us, individually
or as representative of any Underwriters, (ii) confirmation that your
representations and warranties set forth in Section 3 hereof are true and
correct at that time, (iii) confirmation that your agreements set forth in
Sections 2 and 3 hereof have been and will be fully performed by you to the
extent and at the times required thereby and (iv) in the case of any
Offering described in Section 3(a) or 3(b) hereof, acknowledgment that you
have requested and received from us sufficient copies of the final
prospectus or offering circular, as the case may be, with respect to such
Offering in order to comply with your undertakings in Section 3(a) or 3(b)
hereof.
Very truly yours,
XXXXXXX XXXXX XXXXXX INC.
By: _____________________
Name:
Title:
CONFIRMED:..................1999
................................
(Name of Dealer)
by:..............................
Name:
Title:
Address:
Telephone:
Fax:
