FERRIS, BAKER WATTS, INCORPORATED MASTER SELECTED DEALERS AGREEMENT
Exhibit 1.2
XXXXXX, XXXXX XXXXX, INCORPORATED
DATE
Xxxxxx, Xxxxx Xxxxx, Incorporated
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, D. C. 20006
0000 Xxxxxxxxxxxx Xxxxxx, XX
Xxxxx 000
Xxxxxxxxxx, D. C. 20006
Gentlemen:
1. General. We understand that Xxxxxx, Xxxxx Xxxxx, Incorporated is entering into this
Master Selected Dealers Agreement (“Agreement”) in counterparts with us and other firms who may
participate as dealers in public offerings of securities pursuant to a registration statement filed
under the Securities Act of 1933, as amended (the “Act”) in which Xxxxxx, Xxxxx Xxxxx,
Incorporated is acting as representative (“Representative”) of the underwriters comprising the
underwriting syndicate or as one of the Representatives of the underwriters. Whether or not we have
executed this Agreement, this Agreement shall apply to any offering of securities in which we act
as a selected dealer.
At or prior to the time of an offering, you will advise us by one or more telegrams, telexes,
graphic scanning communications or other form of written communication (such communications
received by us with respect to an offering are hereinafter collectively referred to as the
“Invitation”), to the extent applicable, as to the expected offering date, the expected closing
date, the initial public offering price, the interest or dividend rate, if any, the conversion
price, if applicable, the selling concession, the reallowance, the time of release of securities
for sale to the public, the time at which subscription books will be opened and the amount of
securities to be allotted to us, and stating that our participation as a selected dealer in the
offering shall be subject to the provisions of this Agreement. Such information shall be deemed to
be 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 your 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 signatories hereof with respect to such
offering.
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 an 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 parties on whose behalf the
Representatives execute the underwriting or purchase agreement or any associated terms or
similar agreement with the Issuer or any selling security holders or any amendment or supplement
thereto (collectively, the “Purchase 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,” and the parties who agree to participate in such offering as selected
dealers are hereinafter referred to as “Selected Dealers.”
The following provisions of this Agreement shall apply separately to each individual
offering of Securities.
2. Acceptance and Purchase. The offer 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 Representatives at any time in the Representatives’ 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 Representatives.
3. Offering Materials. (a) The Representatives will, at our request, make available
to us, as soon as practicable after sufficient quantities thereof are made available to them
by the
Issuer, copies of the prospectus or supplemented prospectus (excluding any documents
incorporated by reference therein) to be used in connection with the offering of the
Securities in
such number as we may reasonably request. As used herein “Prospectus” means the form of
prospectus (including any supplements or term sheet and any documents incorporated by
reference therein) authorized for use in connection with such offering. With respect to
Securities
for which no Registration Statement is filed with the Securities Exchange Commission; you will
furnish to us, to the extent made available to you by the Issuer, copies of any offering
circular or
other offering materials to be used in connection with the offering of the Securities and of
each
amendment thereto (the “Offering Circular”).
(b) We agree that in purchasing Securities we will rely upon no statement whatsoever,
written or oral, other than the statements in the Prospectus or Offering Circular delivered to us
by the Representatives and any documents incorporated by reference therein. We understand that we
are not authorized to give any information or make any representation not contained in the
Prospectus or 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
Representatives, we will furnish a copy of any amendment or supplement to any preliminary or final
Prospectus or Offering Circular to each person to whom we have furnished a previous preliminary or
final Prospectus or Offering Circular. Our purchase of Securities registered under the Act 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 Securities Exchange Act of 1934, as amended (the “Exchange Act”). We agree to
keep an accurate record of the distribution (including dates and number of copies) by us of the
Prospectus or any preliminary prospectus (or any amendment, supplement or term sheet to any
thereof) or Offering Circulars, and promptly upon request by you, to bring all subsequent changes
to the attention of anyone to whom such materials shall have been distributed.
4. Offering of the Securities. (a) The offering of the Securities is made subject to the
conditions referred to in the Prospectus or Offering Circular and to the terms and conditions
set
forth in this Agreement. After the public offering of the Securities has commenced, you may
change the public offering price, the selling concession and the reallowance to dealers. 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 Representatives, to the public at the initial public
offering
price, subject to the terms of this Agreement and the Prospectus. 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
such
Securities, except that a reallowance from the initial public offering price of not in excess
of the
amount set forth in the Invitation 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 and (ii) makes the
representations
contained in Section 13 hereof.
(b) The Representatives as such and, with the Representatives’ consent, any Underwriter
may buy 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 Representatives of any short position created by the
Representatives
in connection with the offering of such Securities, the Representatives 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 Representatives on demand for the accounts of
the
several Underwriters an amount equal to the Selected Dealers’ concession and, in addition, the
Representatives 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
the identical Securities 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 Representatives
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 Representatives may, with respect to any
offering of Securities, be authorized to over-allot, to purchase and sell Securities for long
or short
account and to stabilize or maintain the market price of the Securities. We agree that upon
the
Representatives’ 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 Representatives’ request at any such time, sell to the Representatives for the
account of one or more Underwriters such amount of such unsold Securities as the Representatives
may designate at the initial public offering price less an amount to be determined by the
Representatives not in excess of the Selected Dealers’ concession.
6. Open Market Transactions. We agree not to bid for, purchase, attempt to induce
others to purchase, or sell, directly or indirectly any Securities, any other securities of
the Issuer
of the same class and series as the Securities and any other securities of the Issuer which
the
Representatives may designate, except as brokers pursuant to unsolicited orders and as
otherwise
provided in this Agreement. If the Securities are or include common stock or securities
convertible into common stock, we also agree not to effect or attempt to induce others to
effect,
directly or indirectly, any transactions in or relating to put or call options on any stock of
the
Issuer, except to the extent permitted by Regulation M under the Exchange Act as interpreted
by
the Commission. We represent that we have at all times complied with and will at all times
comply with the provisions of Regulation M under the Exchange Act applicable to any offering
of Securities.
7. Net Capital. We represent that the incurrence by us of our obligations hereunder
in connection with the offering of the Securities will not result in a violation of Rule
15c3-l
under the Exchange Act, or of any similar provision of any applicable rules of any securities
exchange to which we are subject or of any restriction imposed on us by any such exchange or
any governmental authority.
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 Representatives shall so advise us, at such initial public offering price less the
Selected
Dealers’ concession with respect thereto. Such payment shall be made in the form and at the
time
and places as may be specified by the Representatives. 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 or any other depository or
similar facility, if we are a member, you are authorized, in your discretion, to make appropriate
arrangements for payment and delivery through its facilities of the Securities to be purchased by
us, or, if we are not a member, settlement may be made through a correspondent that is a member
pursuant to our timely instructions.
9. Blue Sky and Other Qualifications. It is understood and agreed that the
Representatives assume 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 Representatives may furnish in that connection.
10. Termination, Amendment. (a) The terms and conditions set forth in (i) Section 4
hereof, (ii) the second sentence of Section 5 hereof and (iii) Section 6 of this Agreement hereof
(collectively, the “offering provisions”) will terminate with respect to each offering of
Securities pursuant to this Agreement at the close of business on the 30th day after the
date of the initial public offering of such 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 Purchase
Agreement, whichever is later, unless in either such case the effectiveness of such offering
provisions is extended or sooner terminated as hereinafter provided. You 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. You may terminate such offering provisions other than Section 4(c) hereof
at any time by notice to us to the effect that the offering provisions of this Agreement are
terminated and you may terminate the provisions of Section 4(c) hereof 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 the Agreement shall remain
operative and in full force and effect with respect to such offering.
(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 advised us of the amount
of
securities allotted to us, 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 by
written communication and, except for supplements or amendments included with 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 Representatives; Role of the Selected Dealers; Legal Responsibility. (a)
The Representatives are acting as representatives of each of the Underwriters in all matters
connected with the offering of the Securities and with the Underwriters’ purchases of the
Securities. Any action to be taken, authority that may be exercised or determination to be made by
the Representatives hereunder may be taken, exercised or made by Xxxxxx, Xxxxx Xxxxx, Incorporated
on behalf of all Representatives. The rights and liabilities of each Underwriter of Securities and
each Selected Dealer shall be several and not joint.
(b) The Representatives, as such, shall have fall authority to take such action as they
may deem advisable in all matters pertaining to the offering of the Securities or arising
under
this Agreement. The Representatives will have no liability to any Selected Dealer for any act
or
omission except for obligations expressly assumed by the Representatives herein, and no
obligations on the part of the Representatives will 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 security holder or any
of the
Underwriters in offering the Securities to the public or otherwise.
(d) Nothing herein contained shall constitute us an association, or partners, with the
other Selected Dealers, the Underwriters or Representatives, or, except as otherwise provided
herein, render us liable for the obligations of any other Selected Dealers, the Underwriters or the
Representatives. If the Selected Dealers among themselves or with the Underwriters or the
Representatives are deemed to constitute a partnership for Federal income tax purposes, then each
Selected Dealer 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 Representatives are authorized, in their discretion, to execute on behalf
of the Selected Dealer such evidence of such election as may be required by the Internal Revenue
Service.
12. Notices. Any notices from the Representatives to us shall be deemed to have been duly
given if mailed, hand-delivered, telephoned (and confirmed in writing), telegraphed, telexed,
telecopied or communicated by graphic scanning to us at the address set forth at the foot of this
Agreement, or at such other address as we shall have advised you in writing. Any notice from us to
the Representatives shall be deemed to have been duly given if mailed, hand-delivered, telephoned
(and confirmed in writing), telegraphed, telexed, telecopied or communicated by graphic scanning
to:
Xxxxxx, Xxxxx Xxxxx, Incorporated
0000 Xxxxxxxxxxxx Xxx.
Xxxxxxxxxx, XX 00000
Attn: Syndicate Department
0000 Xxxxxxxxxxxx Xxx.
Xxxxxxxxxx, XX 00000
Attn: Syndicate Department
Telephone:
(000) 000-0000
Telecopy: (000) 000-0000
Telecopy: (000) 000-0000
(or to such other address, telephone, telecopy or telex as we shall be notified by the
Representatives). Communications by telegram, telex, telecopy, graphic scanning or other written
form shall be deemed to be “written” communications.
13. NASD Matters. We represent that we are actually engaged in the investment banking or
securities business and are either (a) a member in good standing of the NASD or (b) a foreign
broker, dealer or other institution not eligible for membership in the NASD. If we are such a
member we agree that in making sales of securities we will comply with all applicable rules of the
NASD, including, without limitation, Rule 2740 of the NASD’s Conduct Rules. If we are not an NASD
member, we agree to comply as though we were a member with Rules 2730, 2740 and 2750 of the NASD’s
Conduct Rules and to comply with the requirements of the NASD’s Interpretation on Free-Riding and
Withholding. If we are such a foreign broker, dealer or other institution, we agree not to offer or
sell any Securities in the United States of America except through the Representatives and in
making sales of Securities we agree to comply with Rule 2420 of the NASD’s Conduct Rules as it
applies to a nonmember broker or dealer in a foreign country. We agree that in selling Securities
pursuant to any offering (which agreement shall also be for the benefit of the Issuer or other
sellers of such Securities) we will comply with all applicable laws, rules and regulations,
including the applicable provisions of the Act and the Exchange Act, the applicable rules and
regulations of the Commission thereunder, the applicable rules and regulations of any securities
exchange having jurisdiction over the offering and in the
case of an offering referred to in Section 3(b) hereof, the applicable laws, rules and regulations
of any applicable regulatory body.
14. Governing Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
| Very truly yours, —————————————————— (Name of Firm) |
||||
| By: | ||||
| Print Name: | ||||
| Title: | ||||
| Address: | ||||
| Telephone: | ||||
| Fax: | ||||
Confirmed, as of the date first above written
| XXXXXX, XXXXX XXXXX, INCORPORATED | ||||
| By | ||||
