Form of MASTER SELECTED DEALER AGREEMENT
Exhibit (h)(3)
Form of
MASTER SELECTED DEALER AGREEMENT
MASTER SELECTED DEALER AGREEMENT
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
1. General. We understand that UBS Securities LLC (“UBS Securities”) is entering into this
Agreement with us and other firms who may be offered the right to purchase as principal a portion
of securities being distributed to the public. The terms and conditions of this Agreement shall be
applicable to any public offering of securities (“Securities”) wherein UBS Securities (acting for
its own account or for the account of any underwriting or similar group or syndicate) is
responsible for managing or other wise implementing the sale of the Securities to selected dealers
(“Selected Dealers”) and has expressly informed us that such terms and conditions shall be
applicable. Any such offering of Securities to us as a Selected Dealer is hereinafter called an
“Offering.” In the case of any Offering in which you 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 in which you are acting with others as representatives of Underwriters, such other
representatives. The term “preliminary prospectus” means, in the case of an Offering registered
under the Securities Act of 1933 (the “Securities Act”), any preliminary prospectus relating to an
Offering of Securities or any preliminary prospectus supplement together with a prospectus relating
to an Offering of Securities and, in the case of an Offering not registered under the Securities
Act, any preliminary offering circular relating to an Offering of Securities or any preliminary
offering circular supplement together with an offering circular relating to an Offering of
Securities; the term “Prospectus” means, in the case of an Offering registered under the Securities
Act of 1933 (the “Securities Act”), the prospectus, together with the final prospectus supplement,
if any, relating to such Offering of Securities, filed pursuant to Rule 424(b) or Rule 424(c) under
the Securities Act and, in the case of an Offering not registered under the Securities Act, the
final offering circular, including any supplements, relating to such Offering of Securities.
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2. Conditions of Offering; Acceptance and Purchase. Any Offering will
be subject to delivery of the Securities and their acceptance by you 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. You will advise us by telegram, telex or other form of writ ten communication
(“Written Communication”) of the particular method and supplementary terms and conditions
(including, without limitation, the information as to prices and offering date referred to in
Section 3(b)) of any Offering in which we 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 us with respect to any Offering should be
sent to UBS Securities LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000. You reserve the right to
reject any acceptance in whole or in part. Payment for Securities purchased by us is to be made at
such office as you may designate, at the public offering price, or, if you shall so advise us, at
such price less the concession to dealers or at the price set forth or indicated in a Written
Communication, on such date as you shall determine, on one day’s prior notice to us, by certified
or official bank check in New York Clearing House funds payable to the order of PaineWebber
Incorporated, against delivery of certificates evidencing such Securities. If payment is made for
Securities purchased by us at the public offering price, the concession to which we shall be
entitled will be paid to us upon termination of the provisions of Section 3(b) with respect to such
Securities.
Unless we promptly give you written instructions otherwise, if transactions in the Securities
may be settled through the facilities of The Depository Trust Company, payment for and delivery of
Securities 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.
3. Representations, Warranties and Agreements. (a) Prospectuses. You shall provide us with
such number of copies of each preliminary prospectus, the Prospectus and any supplement thereto
relating to each Offering as we may reasonably request. If the Securities will be registered under
the Securities Act, we represent that we are familiar with Rule 15c2-8 under the Exchange Act
relating to the distribution of preliminary and final prospectuses and agree that we will comply
therewith; we agree to keep an accurate record of our distribution (including dates, number of
copies and persons to whom sent) of copies of the Prospectus or any
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preliminary prospectus (or any amendment or supplement to any thereof), and promptly upon
request by you, to bring all subsequent changes to the attention of anyone to whom such material
shall have been furnished, and we agree to furnish to persons who receive a confirmation of sale a
copy of the Prospectus filed pursuant to Rule 424(b) or Rule 424(c) under the Securities Act. If
the Securities will not be registered under the Securities Act, we agree that we will deliver all
preliminary and final offering circulars required for compliance with the applicable laws and
regulations governing the use and distribution of offering circulars by underwriters, and, to the
extent consistent with such laws and regulations, we confirm that we have delivered and agree that
we will deliver all preliminary and final offering circulars which would be required if the
provisions of Rule 15c2-8 under the Exchange Act applied to this offering. We agree that in
purchasing Securities in an Offering we will rely upon no statements whatsoever, written or oral,
other than the statements in the Prospectus delivered to us by you. We 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) Offer and Sale to the Public. With respect to any Offering of Securities, you will
inform us by a Written Communication of the public offering price, the selling concession, the
relaunch (if any) to dealers and the time when we may commence selling Securities to the public.
After such public offering has commenced, you may change the public offering price, the selling
concession and the relaunch to dealers. With respect to each Offering of Securities, until the
provisions of this Section 3(b) shall be terminated pursuant to Section 4, we agree to offer
Securities to the public only at the public offering price, except that if a relaunch is in effect,
a relaunch from the public offering price not in excess of such relaunch may be allowed as
consideration for services rendered in distribution to dealers who are actually engaged in the
investment banking or securities business, who execute the written agreement prescribed by Section
2740(c) of the Rules of Fair Practice of the National Association of Securities Dealers, Inc. (the
“NASD”), and who are either members in good standing of the NASD or foreign brokers or dealers not
eligible for membership in the NASD who represent to us that they will promptly offer such
Securities at the public offering price and will abide by the conditions with respect to foreign
brokers and dealers set forth in Section 3(e).
(c) Stabilization and Over-Allotment. You may, with respect to any Offering, be authorized
to over-allot in arranging sales to Selected Dealers, to purchase and sell Securities, any other
securities of the issuer of the Securities of the
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same class and series and any other securities of such issuer that you may designate for long
or short account and to stabilize or maintain the market price of the Securities. We agree to
advise you from time to time upon request, prior to the termination of the provisions of Section
3(b) with respect to any Offering, of the amount of Securities purchased by us hereunder remaining
unsold and we will, upon your re quest, sell to you, for the accounts of the Underwriters, such
amount of Securities as you may designate, at the public offering price thereof less an amount to
be deter mined by you not in excess of the concession to dealers. In the event that prior to the
later of (i) the termination of the provisions of Section 3(b) with respect to any Offering, or
(ii) the covering by you of any short position created by you in connection with such Offering for
your account or the account of one or more Underwriters, you purchase or contract to purchase for
the account of any of the Underwriters, in the open market or other wise, any Securities
theretofore delivered to us, you reserve the right to withhold the above-mentioned concession to
dealers on such Securities if sold to us at the public offering price, or if such concession has
been allowed to us through our purchase at a net price, we agree to repay such concession upon your
demand, plus in each case any taxes on redeliver, commissions, accrued interest and dividends paid
in connection with such purchase or contract to purchase.
(d) Open Market Transactions. We agree not to bid for, purchase, attempt to purchase, or
sell, directly or indirectly, any Securities, any other securities of the issuer of the Securities
of the same class and series or any other securities of such issuer as you may designate, except as
brokers pursuant to unsolicited orders and as otherwise provided in this Agreement. If the
Securities are common stock or securities convertible into common stock, we 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 such issuer, except to the extent permitted by Rule 10b-6 under the
Exchange Act as interpreted by the Securities and Exchange Commission. An opening uncovered
writing transaction in options to acquire Securities for our account or for the account of any
customer shall be deemed, for purposes of the preceding sentence, to be a transaction effected by
us in or relating to put or call options on stock of the Company not permitted by Rule 10b-6. The
term “opening uncovered writing transaction” means an opening sale transaction where the seller in
tends to become a writer of an option to purchase stock which it does not own or have the right to
acquire upon exercise of conversion or option rights.
(e) NASD. We represent that we are actually engaged in the investment banking or securities
business and we are either a member in good standing of the
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NASD, or, if not such a member, a foreign bank, broker, dealer or other institution not
eligible for membership. 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 Rule 2790 and
Rule 2740 of the Conduct Rules. If we are a foreign bank, broker, dealer or other institutions not
eligible for such membership we agree not to offer of sell any Securities within the United States,
its territories or possessions or to persons who are citizens or residents thereof except through
you and in making sales outside the United States, we agree to comply with the requirements of Rule
2790 and comply as though a member with Rules 2420, 2730, 2740 and 2750 of the Conduct Rules of the
NASD.
(f) Relationship among Underwriters and Selected Dealers. You may buy Securities from or
sell Securities to any Underwriter or Selected Dealer and, with your 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 are not authorized to act as
agent for you or any Underwriter or the issuer or other seller of any Securities in offering
Securities to the public or otherwise. Nothing contained herein or in any Written Communication
from you shall constitute the Selected Dealers partners with you or any Underwriter or with one
another. Neither you nor any Underwriter shall be under any obligation to us except for
obligations assumed hereby or in any Written Communication from you in connection with any
Offering. In connection with any Offering, we agree to pay our proportionate share of any claim,
demand or liability asserted against us, and the other Selected Dealers or any of them, or against
you or the Underwriters, if any, based on any claim that such Selected Dealers or any of them
constitute an association, unincorporated business or other separate entity, including in each case
our proportionate share of any expense incurred in defending against any such claim, demand or
liability.
(g) Blue Sky Laws. Upon application to you, you will inform us as to the jurisdictions in
which you believe the Securities have been qualified for sale under the respective securities of
“blue sky” laws of such jurisdictions. We understand and agree that compliance with the securities
or “blue sky” laws in each jurisdiction in which we shall offer or sell any of the Securities shall
be our sole responsibility and that you assume no responsibility or obligations as to the
eligibility of the Securities for sale or our right to sell the Securities in any jurisdiction.
(h) Compliance with Law. We agree that in selling Securities pursuant to any Offering (which
agreement shall also be for the benefit of the issuer or other
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seller of such Securities) we will comply with 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 and the applicable rules and
regulations of any securities exchange having jurisdiction over the Offering. You shall have full
authority to take such action as you may deem advisable in respect of all matters pertaining to any
Offering. Neither you nor any Underwriter shall be under any liability to us, except for lack of
good faith and for obligations expressly assumed by you in this Agreement; provided, however, that
nothing in this sentence shall be deemed to relieve you from any liability imposed by the
Securities Act.
4. Termination; Supplements and Amendments. This agreement may be terminated by either party
herein upon five business days’ written notice to the other party; provided that with respect to
any Offering for which a Written Communication 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 the last sentence of this Section. This Agreement
may be supplemented or amended by you by written notice thereof to us, 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 Sections 3(b) and (d) with regard to any Offering will terminate at the
close of business on the thirtieth day after the date of the initial public offering of the
Securities to which such Offering relates, but such terms and conditions, upon notice to us, may be
terminated by you at any time.
5. Successors and Assigns. This Agreement shall be binding on, and inure to the benefit of,
the parties hereto and other persons specified or indicated in Section 1, 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 you to us in connection therewith shall be
governed by, and construed in accordance with, the laws of the State of New York.
y signing this Agreement we confirm that our subscription to, or our acceptance of any
reservation of, any Securities pursuant to an Offering shall constitute (i) acceptance of and
agreement to other terms and conditions of this
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Agreement (as supplemented and amended pursuant to Section 4) together with the subject to any
supplementary terms and conditions contained in any Written Communication from you in connection
with such Offering, all of which shall constitute a binding agreement between us and you,
individually or as representative of any Underwriters, (ii) confirmation that our representations
and warranties set forth in Section 3 are true and correct at that time and (iii) confirmation that
our agreements set forth in Sections 2 and 3 have been and will be fully performed by us to the
extent and at the times required thereby.
| Very truly yours, | ||||||
| (Name of Firm) | ||||||
| By | ||||||
| Title | ||||||
Confirmed, as of the date
first above written.
first above written.
UBS SECURITIES LLC
By
|
||||
Title:
|
Vice President |
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