EXHIBIT 1(c)
MASTER SELECTED DEALER AGREEMENT
December __, 1997
Dear Sirs:
On or after the date hereof we may invite you to participate
as a selected dealer in connection with one or more public offerings of
securities in which we are serving as sole or lead representative of the
underwriting syndicates or are otherwise responsible for the distribution of
securities to the public by means of offerings of securities for sale to
selected dealers. This Agreement will confirm our mutual agreement to the
following general terms and conditions applicable to your participation in any
such selected dealer group.
1. Applicability of this Agreement. From time to time on or
after the date hereof we may be responsible (acting for our own account or for
the account of an underwriting or similar group or syndicate) for managing or
otherwise implementing the sale to selected dealers ("Selected Dealers") of
securities offered publicly pursuant to a registration statement filed under the
Securities Act of 1933, as amended (the "Securities Act"), or offered pursuant
to an exemption from registration thereunder. The terms and conditions of this
Agreement shall be applicable to any such offering in which we have invited you
to participate as a Selected Dealer and have expressly informed you that the
terms and conditions of this Agreement apply. This Agreement shall not apply to
any offering of securities effected wholly outside the United States of America.
Any offering to which the terms and conditions of this Agreement apply is herein
referred to as an "Offering", and the securities offered in an Offering are
herein referred to as the "Securities" with respect to such Offering. In the
case of any Offering in which we are acting for the account of an 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 we are acting with others as
representatives of Underwriters, such other representatives. Some or all of the
Underwriters in any Offering may be included among the Selected Dealers.
The following provisions of this Agreement shall apply
separately to each Offering.
2. Conditions of Offering; Acceptance and Purchase. Any
Offering will be subject to delivery of the Securities and their acceptance by
us and any other Underwriters, will be subject to prior sale, to the approval of
all legal matters by counsel and the satisfaction of other conditions, and may
be made on the basis of a reservation of Securities or an allotment against
subscription. We reserve the right to reject any acceptance in whole or in part,
to make allotments and to close the subscription books at any time without
notice. You agree to act as principal in purchasing any Securities.
We shall invite you to participate in an Offering and in
connection therewith shall advise you of the particular method and supplementary
terms and conditions of the Offering (including the amount of Securities to be
allotted to you, the amount of Securities reserved for
purchase by the Selected Dealers, the period of such reservation and the
information as to prices and offering date referred to in Section 3(c) hereof).
Such invitation and additional information, to the extent applicable and then
determined, shall be conveyed to you in a telegram, telex, facsimile
transmission or other written form (electronic or otherwise) of communication
(any communication in any such form being herein referred to as a "written
communication"). Such written communication will include instructions for
advising us of your acceptance of such invitation. Any such additional
information, to the extent applicable but not determined at the time such
invitation is conveyed to you, will be conveyed to you in a subsequent written
communication. To the extent such supplementary terms and conditions are
inconsistent with any provision herein, such terms and conditions shall
supersede any such provision, and you, by your acceptance, shall be bound
thereby. If we have received your acceptance, a subsequent written communication
from us shall state that you may reject your allotment of Securities by
notifying us prior to the time and in the manner specified in such written
communication. Unless otherwise indicated in any such written communication,
acceptances and other communications by you with respect to an Offering should
be sent to Wit Capital Corporation, 000 Xxxxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxxxx Xxxxxx.
Unless you are 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 certified or official bank check or checks drawn on a New York
Clearing House bank and payable in next day funds, 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), and
payable to or upon the order of Wit Capital Corporation, 000 Xxxxxxxx, 0xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, against delivery of the Securities. 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 you are notified otherwise by us, and provided that we
are able to utilize the services and facilities of The Depository Trust Company
or any other depository or similar facility, payment for and delivery of
Securities purchased by you shall be made through the facilities of The
Depositary Trust Company, if you are a member, unless you have otherwise
notified us within two days after the date the Securities are first released for
public offering or, if you are not a member, settlement may be made through a
correspondent who is a member pursuant to instructions you may send to us on or
before the third business day preceding the closing for the sale of the
Securities.
3. Offering Documents.
(a) Registered Offerings. In the case of an Offering
of Securities registered under the Securities Act (a "Registered Offering"), we
shall provide you with such number of copies of any prospectus subject to
completion (a "preliminary prospectus"), the prospectus and any amendment or
supplement to any of the foregoing 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 (the "Commission") thereunder. You
shall familiarize yourself with the terms of the Securities and the other terms
of the Offering reflected in any such preliminary prospectus, prospectus,
amendment or supplement. You agree that in purchasing Securities in a Registered
Offering you will rely upon no statements whatsoever, written or oral, other
than the
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statements in the prospectus delivered to you by us. You understand that you
will not be authorized by the issuer or any seller other than the issuer, any
guarantor or any insurer of Securities to give any information or to make any
representation not contained in a preliminary prospectus or the prospectus, as
amended or supplemented, in connection with the Offering of such Securities. You
represent and warrant that you are familiar with Securities Act Release No. 4968
and Rule 15c2-8 (or any successor release or provision) under the Exchange Act
and any applicable foreign laws (and any applicable rules and regulations
thereunder) and agree that you will deliver all preliminary prospectuses
required for compliance therewith. You agree to make a record of your
distribution of each preliminary prospectus and prospectus (including dates,
numbers of copies and persons to whom sent) and you shall, if requested by us,
furnish a copy of an amended or supplemented preliminary prospectus or
prospectus to each person to whom you have furnished a previous preliminary
prospectus or prospectus and, if also requested by us, indicate to each such
person the changes reflected in such amended or supplemented preliminary
prospectus or prospectus.
(b) Non-Registered Offerings. In the case of an
Offering other than a Registered Offering, we shall provide you with such number
of copies of any preliminary offering circular or other document comparable to a
preliminary prospectus in a Registered Offering (a "preliminary offering
circular") relating to such Offering, a proof of an offering circular or other
document comparable to a prospectus in a Registered Offering (an "offering
circular") relating to such Offering or such offering circular, as you may
reasonably request. You shall familiarize yourself with the terms of the
Securities and the other terms of the Offering reflected in any such preliminary
offering circular, as you may reasonably request. You shall familiarize yourself
with the terms of the Securities and the other terms of the Offering reflected
in any such preliminary offering circular, proof of an offering circular,
offering circular or any amendment or supplement to any of the foregoing. 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 offering circular delivered to you by us. You understand that you will
not be authorized by the issuer or any seller other than the issuer, any
guarantor or any insurer of the Securities offered pursuant to the offering
circular to give any information or to make any representation not contained in
a preliminary offering circular, a proof of an offering circular or the offering
circular, as amended or supplemented, in connection with the sale of such
Securities. You agree that you will comply with the applicable federal, state
and foreign laws, and the applicable rules and regulations of any regulatory
body promulgated under such laws, governing the use and distribution of offering
circulars by brokers or dealers and, to the extent consistent with such laws,
rules and regulations, you agree that you will deliver all preliminary offering
circulars and offering circulars that would be required if the provisions of
Rule 15c2-8 (or any successor provision) under the Exchange Act applied to such
Offering. You agree to make a record of your distribution of each preliminary
offering circular, proof of an offering circular and offering circular
(including dates, numbers of copies and persons to whom sent) and you shall, if
requested by us, furnish a copy of an amended or supplemented preliminary
offering circular, proof of an offering circular or offering circular to each
person to whom you have furnished a previous preliminary offering circular,
proof of an offering circular or offering circular and, if also requested by us,
indicate to each such person the changes reflected in such amended or
supplemented preliminary offering circular, proof of an offering circular or
offering circular.
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(c) Offer and Sale to the Public. With respect to any
Offering of Securities, we shall inform you by a written communication of the
initial public offering price, if any, the selling concession to Selected
Dealers, the reallowance (if any) to other 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. The offering price, selling concession and reallowance (if any)
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
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 is in effect, a reallowance from the Public
Offering Price not in excess of such Reallowance may be allowed. If such
Offering is subject to the By-Laws, rules and regulations of the National
Association of Securities Dealers, Inc. (the "NASD"), such Reallowance may be
allowed only as consideration for services rendered in distribution to dealers
who are actually engaged in the investment banking or securities business, who
execute the written argument prescribed by Section 24(c) of Article III of the
Rules of Fair Practice of the NASD and who are either members in good standing
of the NASD or are 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. Any dealer who is allowed any Reallowance hereby agrees that such amount
will be retained and not reallowed in whole or in part. Upon our request, you
will advise us of the identity of any dealer to whom you allowed a Reallowance
and any Underwriter or dealer from whom you received a Reallowance.
In connection with any Offering involving the public
distribution of the Securities through two or more underwriting syndicates, you
agree to be bound by, and all offers to sell and sales by you of Securities
shall be subject to, such limitations on offers to sell and sales of Securities
as we may advise you in a written communication, and you agree that any sales
made by you to other dealers shall be made only to such dealers as agree, in
their offers to sell and sales, to be bound by the same limitations.
(d) Over-allotment; Stabilization; Unsold Allotments.
We may, with respect to any Offering, be authorized (i) to over-allot in
arranging for sales of Securities to Selected Dealers and to institutions and
other retail purchasers and, if necessary, to purchase Securities or other
securities of the issuer at such prices as we may determine for the purpose of
covering such over-allotments and (ii) for the purpose of stabilizing the market
in the Securities, to make purchases and sales of Securities or of any other
securities of the issuer or any guarantor or insurer of the Securities as we may
advise you by written communication or otherwise, in the open market or
otherwise, for long or short account, on a when-issued basis or otherwise, at
such prices, in such amounts and in such manner as we may determine. 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
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determined by us not in excess of the Concession. If, prior to the later of (i)
the termination of the provisions of Section 3(c) hereof with respect to any
Offering or (ii) 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 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 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, in which case we shall not be obligated to pay such Concession
to you pursuant to Section 2), plus, in each case, transfer taxes, broker's
commissions or dealer's xxxx-ups, if any, and accrued interest, amortization of
original issue discount or accumulated dividends, if any, paid in connection
with such purchase or contract to purchase.
You acknowledge that we do not intend to effect
over-allotments or engage in stabilizing transactions with respect to Offerings
designated as "Public Venture Capital Offerings" unless otherwise so indicated
in the Invitation.
(e) NASD. The provisions of this Section 3(e) shall
apply to any Offering subject to the By-Laws, rules and regulations of the NASD.
You represent and warrant that you are a dealer
actually engaged in the investment banking or securities business and you are
either 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 States of America, its
territories or possessions or to persons who are citizens thereof or residents
therein (other than through us) and to comply with all applicable rules of the
NASD, including the NASD's Interpretation and Respect to Free-Riding and
Withholding, in making sales outside the United States of America. You agree
that, in connection with any purchase or sale of any of the Securities wherein a
selling concession, discount or other allowance is received or granted, (i) you
will comply with the provisions of Section 24 of Article III of the NASD's Rules
of Fair Practice and (ii) if you are a non-NASD member broker or dealer in a
foreign country, you will also comply, (A) as though you were an NASD member,
with the provisions of Sections 8 and 36 thereof and (B) with Section 25 thereof
as that section applies to a non-NASD member broker or dealer in a foreign
country. You represent that you are fully familiar with the above provisions of
the Rules of Fair Practice of the NASD.
You represent, by your participation in an Offering,
that neither you nor any of your directors, officers, partners or "persons
associated with" you (as defined in the By-Laws of the NASD, which definition
includes counsel, financial consultants and advisors, finders, members of the
selling or distribution group, and any other persons associated with or related
to any of the foregoing) or any broker-dealer (i) within the last eighteen
months has purchased in private transactions, or intends before, at or within
six months after the commencement of the public offering of the Securities, to
purchase in private transactions, any securities (including warrants or options)
of the issuer, its parent (if any), any guarantor or insurer of the Securities
or any subsidiary of any of the foregoing or (ii) within the last twelve months
had any dealings with the issuer, any guarantor or insurer of the Securities,
any seller other than the foregoing or any subsidiary or controlling person of
any of the foregoing (other than in connection with the
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syndicate agreements relating to such Offering) as to which documents or
information are required to be filed with the NASD pursuant to its
Interpretation with Respect to Review of Corporate Financing.
If we inform you that the NASD views the Offering as
subject to Schedule E to the By-Laws of the NASD, you agree that you shall, to
the extent required, offer the Securities in compliance with such Schedule and
the NASD's interpretation thereof.
If we inform you that the NASD views the Securities
as interests in a direct participation program, you agree that you shall, to the
extent required, offer the Securities in compliance with the NASD's
interpretation of Appendix F of its Rules of Fair Practice.
(f) Relationship among Underwriters and Selected
Dealers. We shall have full authority to take such action as we may deem
advisable in respect of all matters pertaining to an Offering. 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. You are not authorized to
act as agent for us or any Underwriter or the issuer, any seller other than the
issuer, or any guarantor or insurer 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 for us to you in connection with any Offering. Furthermore,
neither we nor any Underwriter shall be under any liability for or in respect of
the validity, value or delivery of or title to, any Securities or any securities
issuable upon exercise, conversion or exchange of any Securities; the form of,
or the statements contained in, or the validity of, in the case of a Registered
Offering, the registration statement, any preliminary prospectus, the
prospectus, any amendment or supplement to any of the foregoing or any materials
incorporated by reference in any of the foregoing or, in the case of an Offering
other than a Registered Offering, any preliminary offering circular, any proof
of an offering circular, any offering circular, any amendment or supplement to
any of the foregoing or any materials incorporated by reference in any of the
foregoing or, in either case, any letters or instruments executed by or on
behalf of the issuer, any seller other than the issuer, any guarantor or insurer
of the Securities or any other party; the form or validity of any contract or
agreement under which any Securities may be issued or which governs the rights
of holders of any Securities; the form or validity of any agreement for the
purchase of the Securities, any agreement among underwriters or any agreements
between or among underwriting syndicates; the performance by the issuer, any
seller other than the issuer, any guarantor or insurer of the Securities and any
other parties of any agreement on its or their parts; the qualification for sale
in any jurisdiction of any Securities or securities issuable upon exercise,
conversion or exchange of any Securities or the legality for investment of the
Securities or such securities under the laws of any jurisdiction; or any matter
in connection with any of the foregoing; provided, however, that nothing in this
paragraph shall be deemed to relieve us or any Underwriter from any liability
imposed by the Securities Act.
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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 another or, in the case of an
Offering involving the public distribution of the Securities through two or more
underwriting syndicates, with any underwriter or manager participating in any
such syndicate. If the Selected Dealers, among themselves or with the
Underwriters and/or such other underwriters or managers, 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 and/or such other underwriters or
managers, if any, based upon the claim that this Selected Dealers, or any of
them, your proportionate share of any expense incurred in defending against any
such tax, claim, demand or liability.
(g) Legal Qualifications. It is understood that
neither we nor any Underwriter assumes any responsibility with respect to the
right of any Selected Dealer to offer or to sell Securities in any jurisdiction,
notwithstanding any "Blue Sky" memorandum or survey or any other information
that we or any other Underwriter may furnish as to the jurisdictions under the
securities laws of which it is believed the Securities may be sold. You
authorize us to file with the Department of State of the State of New York a
Further State Notice with respect to the Securities, if necessary.
If you propose to offer Securities outside of the
United States of America, its territories or its possessions, you will take, at
your own expense and risk, such action, if any, as may be necessary to comply
with the laws of each foreign jurisdiction in which you propose to offer
Securities.
(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, any seller other than the issuer and any guarantor or
insurer of such Securities) you will comply with the applicable provisions of
the Securities Act and the Exchange Act, the applicable rules and regulations of
the Commission thereunder, the applicable rules and regulations of the NASD, the
applicable rules and regulations of any securities exchange or other
self-regulatory organization having jurisdiction over the Offering and the
applicable federal, state or foreign laws, rules and regulations specified in
Section 3 hereof.
You represent and agree that in connection with each
Offering to which this Agreement applies, you will comply with the provisions of
Regulation M (or any successor provision) under the Exchange Act, as amended or
interpreted from time to time by the Commission. You represent that you are
fully familiar with the provisions of said Rule.
4. Termination. 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 Offering, if we receive any such
notice from you after you have agreed to participate as a
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Selected Dealer in any Offering, this Agreement shall remain in full force and
effect as to such Offering and shall terminate with respect to such Offering in
accordance with the provisions of the following paragraph.
Unless this Agreement or any provision hereof is earlier
terminated by us, and except as we may advise you in a written communication,
the terms and conditions of this Agreement will cease to be applicable to your
participation in an Offering at the close of business of the forty-fifth day
after the date the Securities are first released for public offering, but in our
discretion may be extended by us by written communication for a further period
or periods not exceeding an aggregate of forty-five days; provided, however,
that the provisions of this Agreement that contemplate obligations surviving the
termination of its effectiveness shall survive such termination with respect to
any Offering.
5. Amendments. This Agreement may be amended or supplemented
by us by written notice to you and without need for further action on your part
and, except for amendments or supplements set forth in a written communication
to you relating solely to a particular Offering, any such amendment or
supplement to this Agreement shall be effective with respect to any Offering
effected after this Agreement is so amended or supplemented. Each reference
herein to "this Agreement" shall, as appropriate, be to this Master Selected
Dealer Agreement as so amended or supplemented.
6. Successors and Assigns. This Agreement shall be binding on,
and inure to the benefit of, the parties hereto and the other persons specified
in Sections 1 and 3 hereof, and the respective successors and assigns of each of
them.
7. APPLICABLE 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 TO YOU IN CONNECTION THEREWITH, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
8. Notices. Any notice from us to you shall be deemed to have
been duly given if conveyed to you by written communication or telephone at the
address set forth at the end of this Agreement, or at such other address as you
shall have advised us in writing. Any notice from you to us shall be deemed to
have been duly given if conveyed to us by written communication to 000 Xxxxxxxx,
0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx Xxxxxx; by telephone to
000-000-0000; by facsimile to 212-253-4410; or by e-mail to
xxxxxxx@xxxxxxxxxx.xxx.
Please confirm, by signing and returning this Agreement to us,
your acceptance of and agreement to the terms and conditions of this Agreement
(as amended and supplemented from time to time pursuant to Section 5 hereof),
together with and subject to any supplementary or alternative terms and
conditions contained in any written communication from us in connection with any
Offering, all of which shall constitute a binding agreement between you and us,
individually or as representative of any Underwriters. Your subscription to, or
your acceptance of any reservation of, any Securities pursuant to an Offering
shall constitute (i) confirmation that
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your representations and warranties set forth in this Agreement are true and
correct as of the times or for the periods specified herein, (ii) confirmation
that your agreements set forth in this Agreement have been and will be fully
performed by you to the extent and at the times required hereby and (iii)
acknowledgment that you have requested and received from us sufficient copies of
the 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,
WIT CAPITAL CORPORATION
By:
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Name:
Title:
CONFIRMED as of the date
first written above:
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(Name of Dealer)
By:
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Title*:
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Address:
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* If signer is not an officer or partner, please attach evidence of
authorization.
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