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XXXXXX XXXXXXX & CO.
Incorporated
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
MASTER DEALER AGREEMENT
August 1, 1982
Dear Sirs:
From time to time we may invite you (and others) to participate on the
terms set forth herein as dealer in connection with certain public offerings of
securities by one or more underwriters ("Underwriters") that are managed by us.
If we invite you to participate in a specific offering (an "Offering") to which
this Master Dealer Agreement shall apply, we will give you express notice (a
"Pricing Wire") by wire, telex or other written means specifying (i) the
securities to be offered and the issuer thereof, (ii) the offering terms,
including, if applicable, the public offering price, concession and reallowance
with respect to such securities and (iii) the extent to which the general
provisions set forth in this Master Dealer Agreement shall apply.
Each Pricing Wire shall also set forth your allotment for the Offering
to which it relates and you hereby agree to accept such allotment on the terms
set forth or contemplated xxxxx and in such Pricing Wire without further action
on your part. You may decline such allotment only if we receive by wire, telex
or other written means a notice from you to that effect before the time
specified in such Pricing Wire for such a notice. If we do not receive such a
notice by such time, such Pricing Wire shall be binding upon you and shall
constitute a reconfirmation of your acceptance of this Master Dealer Agreement.
Except to the extent that the applicable Pricing Wire provides
otherwise, you hereby agree as follows with respect to each Offering to which
we invite you to participate as a dealer. For purposes of the following
provisions, with respect to any Offering, the term Securities means the
securities to be publicly offered; the term preliminary prospectus means any
preliminary prospectus relating to the offering of the Securities or any
preliminary prospectus supplement together with a propectus relating to the
offering of the Securities; the term Prospectus means the prospectus, together
with the final prospectus supplement, if any, relating to the offering of the
Securities, filed pursuant to Rule 424 under the Securities Act of 1933; and
the terms Public Offering Price and Reallowance shall mean, respectively, the
public offering price and reallowance, if any, then in effect with respect to
the Securities.
I.
1.1 Securities sold to you for reoffering shall be promptly offered to
the public upon the terms set forth in the Prospectus and the Pricing Wire. If
a Reallowance is in effect for the Offering, Securities may also be offered for
sale at a concession from the Public Offering Price not in excess of the
Reallowance to any Underwriter or to any other member of the National
Association of Securities Dealers, Inc. (the "NASD") or to any foreign bank or
dealer (not eligible for membership in the NASD), who enters into an agreement
with us in the form of this Master Dealer Agreement and whom we have invited to
participate as a dealer in connection with the Offering.
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1.2. If the Securities are shares of common stock ("Common Stock") of
the issuer thereof (the "Issuer") or securities of the Issuer that may be
exchanged for or converted into Common Stock, you agree that you will not,
without our approval in advance, at any time prior to the completion by you of
distribution of Securities acquired by you pursuant to this Master Dealer
Agreement and the applicable Pricing Wire, buy, sell, deal or trade in (i) any
Common Stock, (ii) any security of the Issuer convertible into Common Stock or
(iii) any right or option to acquire or sell Common Stock or any security of
the Issuer convertible into Common Stock, for your own account or for the
account of a customer, except:
(a) as provided for in this Master Dealer Agreement, the
applicable Pricing Wire, the agreement among underwriters, if any,
or the underwriting agreement relating to the Securities;
(b) that you may convert any security of the Issuer convertible
into Common Stock owned by you and sell the Common Stock acquired upon
such conversion and that you may deliver Common Stock owned by you upon
the exercise of any option written by you as permitted by the
provisions set forth herein;
(c) in brokerage transactions on unsolicited orders which have
not resulted from activities on your part in connection with the
solicitation of purchases and which are executed by you in the ordinary
course of your brokerage business; and
(d) that on or after the date of the initial public offering of
the Securities, you may execute covered writing transactions in options
to acquire Common Stock, when such transactions are covered by
Securities, for the accounts of customers.
An opening uncovered writing transaction in options to acquire Common Stock for
your account or for the account of a customer shall be deemed, for purposes of
this Section 1.2, to be a sale of Common Stock which is not unsolicited. The
term "opening uncovered writing transaction in options to acquire" as used
above means a transaction where the seller intends to become a writer of an
option to purchase any Common Stock which he does not own. An opening
uncovered purchase transaction in options to sell Common Stock for your account
or for the account of a customer shall be deemed, for purposes of this
paragraph, to be a sale of Common Stock which is not unsolicited. The term
"opening uncovered purchase transaction in options to sell" as used above means
a transaction where the purchaser intends to become an owner of an option to
sell Common Stock which he does not own.
1.3 If the Securities are not shares of Common Stock or securities of
the Issuer that may be exchanged for or converted into Common Stock, you agree
that you will not bid for or purchase, or attempt to induce any other person to
purchase, and Securities or any other securities of the Issuer designated in
the Pricing Wire other than (i) as provided in this Master Dealer Agreement,
the agreement among underwriters, if any, or the underwriting agreement
relating to the Securities or (ii) as a broker in executing unsolicited orders.
1.4 You represent that you have not participated, since the date you
were invited to participate in the offering of the Securities, in any
transaction prohibited by Section 1.2 or 1.3 and that you have at all times
complied with the provisions of Rule 10b-6 of the Securities and Exchange
Commission applicable to such offering.
1.5 You agree to advise us from time to time upon request, prior to the
termination of this Master Dealer Agreement as it applies to the offering of
the Securities, of the amount of Securities remaining unsold which were
purchased by you from us or from any other Underwriter or dealer for reoffering
and, on our request, you will resell to us any such Securities remaining unsold
at the purchase price thereof if, in our opinion, such Securities are needed to
make delivery against sales made to others.
1.6 If prior to the termination of this Master Dealer Agreement as it
applies to the offering of the Securities (or prior to such earlier date as we
have determined) we purchase or contract to purchase in the open market or
otherwise any Securites which were purchased by you from us or from any other
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Underwriter or dealer for reoffering (including any Securities which may have
been issued on transfer or in exchange for such Securities), and which
Securities were therefore not effectively placed for investment by you, you
authorize us either to charge your account with an amount equal to the
concession from the Public Offering Price at which you purchased such
Securities, which shall be credited against the cost of such Securities, or to
require you to repurchase such Securities at a price equal to the total cost of
such purchase, including any commissions and transfer taxes on redelivery.
II.
2.1. If you purchase any Securities from us in connection with your
participation as dealer in such Offering, you agree that such purchases will be
evidenced by our written confirmation and will be subject to the terms and
conditions set forth in the confirmation and in the Prospectus.
2.2. Securities purchased by you from us in connection with your
paraticipation as dealer in such Offering shall be paid for in full at (i) the
Public Offering Price, (ii) such price less the applicable concession or (iii)
the price set forth or indicated in the Pricing Wire, as we shall advise, at
the office of Xxxxxx Xxxxxxx & Co. Incorporated, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, at such time and on such day as we may advise you, by certified or
official bank check payable in New York Clearing House funds (or other next day
funds) to the order of Xxxxxx Xxxxxxx & Co. Incorporated against delivery of
the Securities. If you are called upon to pay the Public Offering Price for
the Securities purchased by you, the applicable concession will be paid to you,
less any amounts charged to your account pursuant to Article I above, after
termination of this Master Dealer Agreement as it applies to the offering of
the Securities. Unless you promptly give us 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
you will be made through such facilities, if you are a member, or, if you are
not a member, settlement may be made through your ordinary correspondent who is
a member.
III.
3.1. We will advise you of the date and time of termination of this
Master Dealer Agreement as it applies to the offering of the Securities or of
any designated provisions hereof. This Master Dealer Agreement shall, in any
event, terminate with respect to the offering of the Securities 30 days after
the date of the initial public offering of the Securities unless sooner
terminated by us.
IV.
4.1. In purchasing Securities, you will rely only on the Prospectus and
on no other statements whatsoever, written or oral.
4.2. You represent that you are a member in good standing of the NASD
or that you are a foreign bank or dealer, not eligible for membership in the
NASD, which agrees not to offer or sell any Securities in, or to persons who
are nationals or residents of, the United States. In making sales of
Securities, if you are such a member, you agree to comply with all applicable
rules of the NASD, including, without limitation, the NASD's Interpretation
with Respect to Free-Riding and Withholding and Section 24 of Article III of
the NASD's Rules of Fair Practice, or, if you are such a foreign bank or
dealer, you agree to comply with such Interpretation and Sections 8, 24 and 36
of such Article as though you were such a member and Section 25 of such Article
as it applies to a nonmember broker or dealer in a foreign country.
4.3. If you are a foreign bank or dealer, you represent that in
connection with sales and offers to sell Securities made by you outside the
United States (a) you will not offer or sell any Securities in any jurisdiction
except in compliance with applicable laws and (b) you will either furnish to
each person to whom any such sale or offer is made a copy of the then current
preliminary prospectus, if any, or of the Prospectus (as then amended or
supplemented), as the case may be, or inform such person that such preliminary
prospectus, in any, or Prospectus will be available upon request. Any offering
material in addition to the then current preliminary prospectus or the
Prospectus furnished by you to any person in connection with any offers or
sales referred to in the preceding sentence (i) shall be prepared and so
furnished at your sole risk and expense and (ii) shall not contain information
relating to the Securities or the Issuer which is inconsistent in any respect
with the information contained in the then current
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preliminary prospectus, if any, or in the Prospectus (as then amended or
supplemented), as the case may be. It is understood that no action has been
taken by us or the Issuer to permit a public offering in any jurisdiction other
than the United States where action would be required for such purpose.
4.4. You will not give any information or make any representations
other than those contained in the Prospectus, or act as agent for the Issuer,
any Underwriter or us.
4.5. You agree that we, as manager or co-manager of the offering of the
Securities, have full authority to take such action as may seem advisable to us
in respect of all matters pertaining to such offering.
4.6. Neither we, as manager, nor any Underwriter shall be under any
liability to you for any act or omission, except for obligations expressly
assumed by us in the Master Dealer Agreement.
4.7. All communications to us relating to the offering of the Securities
shall be addressed to the Syndicate Department, Xxxxxx Xxxxxxx & Co.
Incorporated, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Unless
you have otherwise notified us in writing, any notices to you shall be deemed
to have been duly given if mailed or telegraphed to you at the address shown
below.
V.
5.1. Neither we, as manager, nor any Underwriter will have any
responsibility with respect to the right of any dealer to sell Securities in
any jurisdiction, notwithstanding any information we may furnish in that
connection.
VI.
6.1. This Master Dealer 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 Pricing Wire was sent prior to
such notice, this Master Dealer 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 Article III hereof.
6.2. This Master Dealer Agreement and each Pricing Wire shall be
governed by an construed in accordance with the laws of the State of New York.
Please confirm you acceptance of this Master Dealer Agreement by
signing and returning to us the enclosed duplicate copy hereof.
Very truly yours,
XXXXXX XXXXXXX & CO.
INCORPORATED
By /s/???????????????
Managing Director
Confirmed and accepted
as of August 1, 1982
......................................
(Name of Dealer
......................................
......................................
(Address)
By ...................................
Title:
(If person signing is not an officer or partner,
please attach instrument of authorization.)
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