XXXXX FARGO SECURITIES, LLC
MASTER SELECTED DEALERS AGREEMENT
[ ], 2009
Xxxxx Fargo Securities, LLC
[ADDRESS]
Ladies and Gentlemen:
1. GENERAL. We understand that you are entering into this Master Selected
Dealers Agreement (this "AGREEMENT") in counterparts with us and other firms,
which may include any Underwriters (as defined below), who may participate as
dealers (such other firms collectively with us being referred to herein as the
"SELECTED DEALERS") in connection with offerings of Securities (as defined
below) that are managed solely by Xxxxx Fargo Securities, LLC ("XXXXX FARGO") or
by Xxxxx Fargo with one or more co-managers, and which may include offerings
registered in whole or in part under the Securities Act of 1933, as amended (the
"1933 ACT"), and offerings other than registered offerings. The term "MANAGER"
means Xxxxx Fargo Securities, LLC acting in such capacity as manager.
Irrespective of whether we have executed this Agreement, this Agreement shall
apply to any offering of Securities as to which Xxxxx Fargo has invited us to
participate, and we have elected to participate, as a Selected Dealer.
The following information, to the extent applicable to the offering of the
Securities, will be supplied to us at or prior to the time of such offering: (i)
the expected offering date; (ii) the expected closing date; (iii) the initial
public offering price; (iv) the interest or dividend rate (or the method by
which such rate is to be determined); (v) the conversion, exercise or exchange
price or rate, (vi) the redemption or liquidation price, (vii) the selling
concession; (viii) the reallowance; (ix) the time of release of Securities for
sale to the public; (x) the time at which subscription books will be opened;
(xi) the amount, if any, of Securities reserved for purchase by Selected
Dealers; (xii) the period of such reservation and the amount of Securities to be
allotted to us; and (xiii) a statement that our participation as a Selected
Dealer in the offering shall be subject to the terms of this Agreement. The
foregoing information shall be deemed to form a part of this Agreement and this
Agreement shall become binding with respect to our participation as a Selected
Dealer in an offering of Securities following our receipt of such information.
If we have not previously executed this Agreement, by our purchase of Securities
in an offering covered by this Agreement we shall be deemed to be a signatory
hereto with respect to such offering of Securities.
The securities to be purchased in any offering of securities in which we agree
to participate as a Selected Dealer pursuant to this Agreement, including any
guarantees relating to such securities or any other securities into which such
securities are convertible or for which such securities are exercisable or
exchangeable and any securities that may be purchased upon exercise of any
over-allotment option, are hereinafter referred to as the "SECURITIES." The
issuer or issuers of the Securities are hereinafter referred to as the "ISSUER."
The underwriters or initial purchasers, as the case may be, on whose behalf the
Manager executes the underwriting or purchase agreement and any associated terms
agreement, pricing agreement or similar agreement with the Issuer or any selling
securityholders or any amendment or supplement thereto (collectively, the
"UNDERWRITING AGREEMENT") with respect to an offering of Securities in which we
agree to participate as a Selected Dealer pursuant to this Agreement are
hereinafter referred to as the "UNDERWRITERS." The provisions of this Agreement
set forth below shall apply separately to each offering of Securities in which
we agree to participate as a Selected Dealer.
2. ACCEPTANCE AND PURCHASE. The offer of Securities to Selected Dealers will
be made on the basis of a reservation of Securities and an allotment against
subscriptions. Any application for additional Securities will be subject to
rejection in whole or in part. Subscription books may be closed by the Manager
at any time in its discretion without notice and the right is reserved to reject
any subscription in whole or in part. We agree to purchase as principal the
amount of Securities allotted to us by the Manager.
3. OFFERING MATERIALS. (A) We understand and acknowledge that if
registration of the offer and sale of the Securities as contemplated by the
Underwriting Agreement is required under the 1933 Act, the Manager will, at our
request, furnish to us, as soon as practicable after sufficient quantities
thereof are made available to the Manager by the Issuer, copies of the
Prospectus (as defined below) (excluding any documents incorporated by reference
therein) to be used in connection with the offering of the Securities in such
number of copies as we may reasonably request. As used herein, "PROSPECTUS"
means the form of prospectus (including any supplements and any documents
incorporated by reference therein) authorized for use in connection with the
offering of such Securities.
(b) We understand and acknowledge that, if the offer and sale of the
Securities are exempt from the registration requirements of the 1933 Act, no
registration statement will be filed with the Securities and Exchange Commission
(the "COMMISSION"). In such case, the Manager will, at our request, furnish to
us, as soon as practicable after sufficient quantities thereof are made
available to the Manager by the Issuer, copies, in such number as we may
reasonably request of any Offering Circular (as defined below) (excluding any
documents incorporated by reference therein) or other offering materials to be
used in connection with the offering of the Securities. As used herein,
"OFFERING CIRCULAR" means the form of offering circular, offering memorandum or
other offering materials (including any supplements and any documents
incorporated by reference therein) authorized for use in connection with the
offering of such Securities. The Prospectus or Offering Circular, as the case
may be, relating to an offering of Securities is herein referred to as the
"OFFERING DOCUMENT."
(c) We acknowledge and agree that in purchasing Securities we will rely
upon no statement whatsoever, written or oral, other than the statements in the
Offering Document delivered to us by the Manager, including any documents
incorporated by reference therein. We understand and acknowledge that we are not
authorized to give any information or make any representation not contained in
the Offering Document, including in any document incorporated by reference
therein, in connection with the offering of the Securities. Our purchase of
Securities shall constitute our agreement that, if requested by the Manager, we
will furnish a copy of any amendment or supplement to any preliminary or final
Offering Document to each person to whom we have furnished a previous
preliminary or final Offering Document. Our purchase of Securities registered
under the 1933 Act or in any other offering to which the provisions of Rule
15c2-8 (or any successor provision) under the Securities Act of 1934, as amended
(the "1934 ACT"), are made applicable by notice from the Manager to us or
otherwise, shall constitute our confirmation that we have delivered, and our
agreement that we will deliver, all preliminary and final Prospectuses required
for compliance with Rule 15c2-8 (or any successor provision) under the 1934 Act.
Our purchase of Securities exempt from registration under the 1933 Act shall
constitute our confirmation that we have delivered, and our agreement that we
will deliver, all preliminary and final Offering Circulars required for
compliance with the applicable Federal and state laws and the applicable rules
and regulations of any regulatory body promulgated thereunder governing the use
and distribution of offering circulars by underwriters or initial purchasers.
4. OFFERING OF THE SECURITIES. (A) The offering of the Securities is made
subject to the conditions referred to in the Offering Document and to the terms
and conditions set forth in this Agreement. After the public offering of the
Securities has commenced, the Manager may change the public offering price,
public offering size, the selling concession and the reallowance. Any of the
Securities purchased by us pursuant to this Agreement are to be reoffered by us,
subject to their receipt and acceptance by the Manager, to investors at the
initial public offering price, subject to the terms of this Agreement and the
Offering Document. Except as otherwise provided herein, the Securities shall not
be offered or sold by us below the initial public offering price before the
termination of the effectiveness of this Agreement with respect to the offering
of the Securities, except that a reallowance from the initial public offering
price of not in excess of the amount set forth in the invitation wire, telex,
facsimile or electronic data transmission or other written communication (the
"INVITATION") from the Manager inviting us to participate as a Selected Dealer
in an offering of Securities pursuant to this Agreement may be allowed to any
Selected Dealer that (i) agrees that such amount is to be retained and not
reallowed in whole or in part, (ii) makes the representations contained in
Section 13, and (iii) unless the Securities are "exempted securities" as defined
in Section 3(a)(12) of the 1934 Act or are such other securities as may be sold
from time to time by a "bank" as defined in Section 3(a)(6) of the 1934 Act (a
"BANK"), is not a Bank.
(b) The Manager as such and, with the Manager's consent, any Underwriter
may purchase 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 initial
public offering price less all or any part of the concession to Selected
Dealers.
(c) If we have received or been credited with the Selected Dealers'
concession as to any Securities purchased by us pursuant to this Agreement
which, prior to the later of (i) the termination of the effectiveness of this
Agreement with respect to the offering of such Securities and (ii) the covering
by the Manager of any short position created by the Manager in connection with
the offering of such Securities, the Manager may have purchased or contracted to
purchase for the account of any Underwriter (whether such Securities have been
sold or loaned by us), then we agree to pay the Manager on demand for the
accounts of the several Underwriters an amount equal to the Selected Dealers'
concession and, in addition, the Manager may charge us with any broker's
commission and transfer tax paid in connection with such purchase or contract to
purchase. Securities delivered on such repurchases need not be represented by
the identical certificates originally purchased. With respect to any such
repurchased Securities as to which we have not yet received or been credited
with the Selected Dealers' concession, we shall be responsible for any such
broker's commission and transfer tax and the Manager shall not be obligated to
pay any Selected Dealers' concession as to such Securities.
(D) No expenses shall be charged to Selected Dealers. A single transfer tax
upon the sale of the Securities by the respective Underwriters to us will be
paid by such Underwriters when such Securities are delivered to us. However, we
shall pay any transfer tax on sales of Securities by us and shall pay our
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 us and other Selected Dealers as a group or otherwise.
5. STABILIZATION AND OVER-ALLOTMENT. The Manager may, with respect to the
offering of the Securities, over-allot, purchase and sell Securities or any
other securities that may, in whole or in significant part, determine the value
of the Securities for long or short account, on such terms as the Manager may
deem advisable, and stabilize or maintain the market price of the Securities. We
agree that upon the Manager's request at any time and from time to time prior to
the termination of the effectiveness of this Agreement with respect to an
offering of Securities, we will report the amount of Securities purchased by us
pursuant to such offering which then remain unsold by us and will, upon the
Manager's request at any such time, sell to the Manager for the account of one
or more Underwriters such amount of such unsold Securities as the Manager may
designate at the initial public offering price less an amount to be determined
by the Manager not in excess of the Selected Dealers' concession.
6. COMPLIANCE WITH REGULATION M. Unless the Securities are "exempted
securities" as defined in Section 3(a)(12) of the 1934 Act, we represent that,
at all times since we were invited to participate in the offering of the
Securities, we have complied with the provisions of Regulation M applicable to
such offering, in each case as interpreted by the Commission and after giving
effect to any applicable exemptions. If we have been notified by the Manager
that the Underwriters may conduct passive market making in compliance with Rule
103 of Regulation M in connection with the offering of the Securities, we
represent that, at all times since our receipt of such notice, we have complied
with the provisions of such Rule applicable to such offering, as interpreted by
the Commission and after giving effect to any applicable exemptions.
If the Securities are convertible into or exchangeable or exercisable for
shares of common stock and such common stock is subject to options traded on a
securities exchange, we represent and warrant that we have not, since the day
following the date of the Invitation, entered into a discount or parity opening
uncovered writing transaction in options to acquire shares of such common stock
for our account or for the account of any customer and we agree that we will not
enter into any such transaction prior to the termination of the provisions of
this Agreement with respect to such offering of Securities. The term "DISCOUNT
OR PARITY OPENING UNCOVERED WRITING TRANSACTION" means an opening sale
transaction where the seller is the writer of an option to purchase shares of
such common stock which he does not then own or have the right to acquire upon
exercise of conversion option rights, which option is sold at a price (exclusive
of commissions) per optioned share which, when added to the amount per share
payable upon exercise of the option, shall be equal to or less than the last
reported sales price (exclusive of commissions) per share immediately prior to
the time such option is sold.
7. NET CAPITAL. We represent and warrant that the incurrence by us of our
obligations hereunder in connection with the offering of the Securities will not
place us in violation of Rule 15c3-1 under the 1934 Act, if such requirements
are applicable to us, or, if we are a financial institution subject to
regulation by the Board of Governors of the Federal Reserve System, the
Comptroller of the Currency or the Federal Deposit Insurance Corporation, will
not place us in violation of the capital requirements of such regulator or any
other regulator to which we are subject.
8. PAYMENT AND DELIVERY. We agree that Securities purchased by us pursuant
to this Agreement shall be paid for in an amount equal to the initial public
offering price therefor or, if the Manager shall so advise us, at such initial
public offering price less the Selected Dealers' concession with respect
thereto, at 9:00 A.M. (New York City time) on the date on which the Underwriters
are required to purchase the Securities, by delivery to the Manager, at its
office, of payment in the manner and type of funds and currency specified in the
payment instructions of the Manager given to us, payable to the order of "XXXXX
FARGO SECURITIES, LLC" If payment is made for Securities purchased by us at the
initial public offering price, the Selected Dealers' concession to which we may
be entitled will be paid to us upon termination of the effectiveness of this
Agreement with respect to the offering of such Securities.
Notwithstanding the foregoing provisions of this section, if transactions in
the Securities can be settled through the facilities of The Depository Trust
Company ("DTC"), if we are a member of DTC, we authorize you, in your
discretion, to make appropriate arrangements for payment and/or delivery through
the facilities of DTC of the Securities to be purchased by us, or, if we are not
a member of DTC, settlement may be made through a correspondent that is a member
of DTC pursuant to our timely instructions.
9. BLUE SKY AND OTHER QUALIFICATIONS. It is understood and agreed that the
Manager assumes no responsibility or obligation with respect to the right of any
Selected Dealer or other person to sell the Securities in any jurisdiction,
notwithstanding any information the Manager may furnish in that connection.
10. TERMINATION; AMENDMENT. (A) The terms and conditions set forth in (i)
Section 4, (ii) the second sentence of Section 5 and (iii) Section 6 of this
Agreement (collectively, the "OFFERING PROVISIONS") will terminate with respect
to each offering of Securities pursuant to this Agreement at the close of
business on the 45th day after the date of the initial public offering of the
Securities or at the close of business on the day of the closing of the purchase
of the Securities by the Underwriters pursuant to the Underwriting Agreement,
whichever is later, unless in either such case the effectiveness of such
Offering Provisions is extended or sooner terminated as hereinafter provided.
The Manager may extend the effectiveness of such Offering Provisions up to an
additional 15 days by notice to us to the effect that the Offering Provisions of
this Agreement are extended to the date or by the number of days indicated in
the notice. The Manager may terminate such Offering Provisions, other than
Section 4(c), at any time by notice to us to the effect that the Offering
Provisions of this Agreement are terminated and the Manager may terminate the
provisions of Section 4(c) at any time at or subsequent to the termination of
the other Offering Provisions by notice to us to the effect that the penalty bid
provisions of this Agreement are terminated. All other provisions of this
Agreement shall remain operative and in full force and effect with respect to
the offering of such Securities.
(b) This Agreement may be terminated by either party hereto upon five
business days' written notice to the other party; provided, however, that with
respect to any particular offering of Securities, if you receive any such notice
from us after you have notified us of the amount of Securities allotted to us in
such offering, this Agreement shall remain in full force and effect as to such
offering and shall terminate with respect to such offering and all previous
offerings only in accordance with and to the extent provided in subsection (a)
of this Section.
(c) This Agreement may be supplemented or amended by you by notice to us
from you and, except for supplements or amendments set forth in the information
relating to a particular offering of Securities, 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 supplemented and amended.
11. ROLE OF THE MANAGER; ROLE OF THE SELECTED DEALERS; LEGAL RESPONSIBILITY.
(a) Xxxxx Fargo is acting as representative of each of the Underwriters in
all matters in
connection with the offering of the Securities and the Underwriters'
purchases of the Securities. Any action to be taken, authority that may be
exercised or determination to be made by the Manager or any co-managers
hereunder may be taken, exercised or made by Xxxxx Fargo on behalf of the
Manager and all of the co-managers. The rights and liabilities of each
Underwriter of Securities and each Selected Dealer shall be several and not
joint.
(b) The Manager, as such, shall have full authority to take such action as
it may deem necessary or advisable in all matters in pertaining to the offering
of Securities or arising under this Agreement. The Manager will have no
liability to any Selected Dealer for any act or omission except for obligations
expressly assumed by the Manager herein, and no obligations on the part of the
Manager shall be implied hereby or inferred herefrom.
(c) We understand and agree that we are to act as principal in purchasing
Securities and we are not authorized to act as agent for the Issuer, any selling
securityholder or any of the Underwriters in offering the Securities to the
public or otherwise.
(d) Nothing herein contained shall cause us to constitute an association,
or partners, with the other Selected Dealers, the Underwriters, the Manager or
any co-managers, or, except as otherwise provided herein, render us liable for
the obligations of any other Selected Dealers, the Underwriters, the Manager or
any co-managers. If the Selected Dealers among themselves or with the
Underwriters or the Manager or any co-managers are deemed to constitute a
partnership for Federal income tax purposes, then each Selected Dealer hereby
elects to be excluded from the application of Subchapter K, Chapter 1, Subtitle
A, of the Internal Revenue Code of 1986, as amended, and agrees not to take any
position inconsistent with such election. The Manager is authorized, in its
discretion, to execute on behalf of the Selected Dealers such evidence of such
election as may be required by the Internal Revenue Service.
12. NOTICES. Except as otherwise set forth herein, any notices from the
Manager to us shall be deemed to have been duly given if mailed, hand-delivered,
delivered by overnight courier, telephoned (and confirmed in writing),
telegraphed, telexed or telecopied to us at the address set forth at the foot of
this Agreement or at such other address we shall have advised you by notice in
writing. Any notice from us to the Manager shall be deemed to have been duly
given if mailed, hand-delivered, delivered by overnight courier, telephoned (and
confirmed in writing), telegraphed or telecopied to:
Xxxxx Fargo Securities, LLC
[ADDRESS]
Attention:
Telephone:
Telecopy:
(or to such other address, telephone, telecopy or telex as we shall be notified
by Xxxxx Fargo). Communications by telegram, telex, telecopy, wire or other
electronic transmission shall be deemed to be "WRITTEN" communications.
13. NASD MATTERS; OTHER LAWS. We represent and warrant that we are (a) a
member of good standing of the National Association of Securities Dealers, Inc.
(the "NASD"), (b) a Bank that is not a member of the NASD, or (c) a foreign bank
or dealer not eligible for membership in the NASD. In making sales of
Securities, if we are such a member in good standing of the NASD, we agree that
we will comply with all applicable interpretive materials ("IM") and rules of
the NASD, including without limitation, IM-2110-1 (the NASD's interpretation
with respect to free-riding and withholding) and Rule 2740 of the NASD's Conduct
Rules, or, if we are such a foreign bank or dealer, we agree to comply with
IM-2110-1 and Rules 2730, 2740 and 2750 of the NASD's Conduct Rules as though we
were such a member and Rule 2420 of the NASD's Conduct Rules as it applies to a
nonmember broker or dealer in a foreign country. If we are a Bank, we agree, to
the extent required by applicable law or the Conduct Rules of the NASD, that we
will not, in connection with the public offering of any Securities that do not
constitute "exempted securities" within the meaning of Section 3(a)(12) of the
1934 Act or such other securities as from time to time may be sold by a Bank,
purchase any Securities at a discount from the offering price from any
Underwriter or Selected Dealer or otherwise accept any selling concession,
discount or other allowance, or any portion of any management fee, global
coordinator's fee, or other similar fee, from any Underwriter or Selected
Dealer, and we will comply with Rule 2420 of the NASD's Conduct Rules as though
we were a member. Without limitation to the other provisions of this Agreement,
we agree that, in selling Securities and otherwise acting as Selected Dealer in
any offering of Securities, we will comply with all applicable laws, rules and
regulations, including but not limited to all applicable provisions of the 1933
Act and 1934 Act and all applicable rules and regulations of the Commission, the
NASD and any applicable securities exchange or other applicable regulatory
authority.
14. GOVERNING LAW. THIS AGREEMENT 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 IN THE STATE OF NEW YORK.
15. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, which taken together
shall constitute one and the same instrument.
[SIGNATURE PAGE FOLLOWS]
Very truly yours,
(Name of Firm)
By: ________________________________
Print Name:
Title:
Address:
Telephone:
Telecopy:
Telex:
Confirmed as of the date first
above written: Xxxxx Fargo
Securities, LLC
By: ________________________________
Name:
Title:
