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
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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
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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 State, its territories or its
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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
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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
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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.
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By: ---------------------
Name:
Title:
CONFIRMED: ----------------- 1999
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(Name of Dealer)
By:-------------------------------
Name:
Title:
Address: -------------------------
-------------------------
-------------------------
Telephone: -----------------------
Fax: -----------------------
8
00250209.AN6
