WELLS FARGO SECURITIES, LLC MASTER SELECTED DEALERS AGREEMENT
Exhibit 99.H.3
XXXXX FARGO SECURITIES, LLC
[ ], 2009
Xxxxx Fargo Securities, LLC
[ADDRESS]
Ladies and Gentlemen:
[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:
[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) |
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| By: | ||||||
| Print Name: | ||||||
| Title: | ||||||
| Address: | ||||||
| Telephone: | ||||||
| Telecopy: | ||||||
| Telex: | ||||||
Confirmed as of the date first above written:
Xxxxx Fargo Securities, LLC
By: |
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| Title: |
