UBS Securities LLC MASTER SELECTED DEALERS AGREEMENT Registered SEC Offerings and Exempt Offerings (Other than Offerings of Municipal Securities)
Exhibit (h)(3)
Final adopted version dated February 5, 2010
UBS Securities LLC
MASTER SELECTED DEALERS AGREEMENT
Registered SEC Offerings
and
Exempt Offerings
(Other than Offerings of Municipal Securities)
February 5, 2010
This Master Selected Dealers Agreement (this “Master SDA”), dated as of February 5, 2010, is
by and between UBS Securities LLC (including its successors and assigns) (“we,” “our,” “us” or the
“Manager”) and the party named on the signature page hereof (a “Dealer,” “you” or “your”). From
time to time, in connection with an offering and sale (an “Offering”) of securities (the
“Securities”), managed solely by us or with one or more other managers or co-managers, we or one or
more of our affiliates may offer you (and others) the opportunity to purchase as principal a
portion of such securities on the terms set forth herein as a Selected Dealer (as defined below).
References herein to laws, statutory and regulatory sections, rules, regulations, forms and
interpretive materials are deemed to include successor provisions. The following provisions of
this Master SDA shall apply separately to each individual Offering of Securities. You and we
further agree as follows:
1. Applicability of this Master SDA . The terms and conditions of this Master SDA will be applicable to any Offering in which you
accept an offer to participate as a Selected Dealer (including through the receipt by you of
Securities), whether pursuant to a registration statement filed under the Securities Act of 1933,
as amended (the “1933 Act”), or exempt from registration thereunder, in respect of which we (acting
for our own account or for the account of any underwriting or similar group or syndicate) are
responsible for managing or otherwise implementing the sale of Securities to Selected Dealers. A
Dealer is a person who meets the requirements of Section 10 hereof. The parties who agree to
participate (including by the receipt by such parties of Securities) or are designated a selling
concession to Dealers (the “Selling Concession”), and reallowance, if any (the “Reallowance”), in
such Offering as selected Dealers are hereinafter referred to as “Selected Dealers”. In the case
of any Offering where we are acting for the account of the several underwriters, initial purchasers
or others acting in a similar capacity (the “Underwriters”), the terms and conditions of this
Master SDA will be for the benefit of such Underwriters, including, in the case of any Offering
where we are acting with others as representatives of Underwriters, such other representatives.
2. Terms of the Offering. We may advise you orally or by one or more wires, telexes, telecopy or electronic data
transmissions, or other written communications (each, a “Wire”) of the particular method and
supplementary terms and conditions of any Offering (including the price or prices at which the
Securities initially will be offered by the several Underwriters, or if the price is to be
determined by a formula based on market price, the terms of the formula, (the “Offering Price”) and
any Selling Concession or, if applicable, Reallowance) in which you are invited to participate.
Any such Wire may also amend or modify such provisions of this Master SDA in respect of the
Offering to which such Wire relates, and may contain such supplementary provisions as may be
specified in any Wire relating to an Offering. To the extent such supplementary terms and
conditions are inconsistent with any provision herein, such supplementary terms and conditions
shall supersede any provision of this Master SDA. Unless otherwise indicated in any such Wire,
acceptances and other communications by you with respect to an Offering should be sent
pursuant to the terms of Section 19 hereof. Notwithstanding that we may not have sent you a Wire
or other form of invitation to participate in such Offering or that you may not otherwise have
responded by wire or other written
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communication (any such communication being deemed “In Writing”)
to any such Wire or other form of invitation, you will be deemed to have accepted the terms of our
offer to participate as a Selected Dealer and of this Master SDA (as amended, modified or
supplemented by any Wire) by your purchase of Securities or otherwise receiving and retaining an
economic benefit for participating in the Offering as a Selected Dealer. We reserve the right to
reject any acceptance in whole or in part.
Any Offering will be subject to delivery of the Securities and their acceptance by us and any
other Underwriters may be subject to the approval of all legal matters by counsel and may be
subject to the satisfaction of other conditions. Any application for additional Securities will be
subject to rejection in whole or in part.
3. Offering Documents. Upon your request, we will furnish, make available to you or make arrangements for you to
obtain copies (which may, to the extent permitted by law, be in electronic form) of each
prospectus, prospectus supplement, offering memorandum, offering circular or similar offering
document, and any preliminary version thereof, as soon as reasonably practicable after sufficient
quantities thereof have been made available by the issuer of the Securities (each, an “Issuer”) and
any guarantor (each, a “Guarantor”) thereof, and, if different from the Issuer, the seller or
sellers (each, a “Seller”) of the Securities. You agree that you will comply with the applicable
United States federal and state laws, and the applicable rules and regulations of any regulatory
body promulgated thereunder, and the applicable laws, rules and regulations of any non-United
States jurisdiction, governing the use and distribution of offering materials by brokers and
dealers. You represent and warrant that you are familiar with Rule l5c2-8 under the Securities
Exchange Act of 1934, as amended (the “1934 Act”), relating to the distribution of preliminary and
final prospectuses and agree that your purchase of Securities shall constitute your confirmation
that you have delivered and will deliver all preliminary prospectuses and final prospectuses
required for compliance therewith. You agree to make a record of your distribution of each
preliminary prospectus and, when furnished with copies of any revised preliminary prospectus or
final prospectus, you will, upon our request, promptly forward copies thereof to each person to
whom you have theretofore distributed a preliminary prospectus. You agree that, in purchasing
Securities, you will rely upon no statement whatsoever, written or oral, other than the statements
in the final prospectus, offering memorandum, offering circular or similar offering document
delivered to you by us. You are not authorized by the Issuer or other Seller of Securities offered
pursuant to a final prospectus, offering memorandum, offering circular or similar offering document
or by any Underwriters to give any information or to make any representation not contained therein
in connection with the sale of such Securities.
4. Offering of Securities.
(a) In respect of any Offering, we will inform you of any Selling Concession and Reallowance,
if any. The Offering of Securities is made subject to the conditions referred to in the
prospectus, offering memorandum, or offering circular or similar offering document related to the
Offering and to the terms and conditions set forth in any Wire. After the initial Offering has
commenced, we may change the Offering Price, the Selling Concession and the Reallowance (if any) to
Selected Dealers. If a Reallowance is in effect, a reallowance from the Offering Price
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not in
excess of such Reallowance may be allowed (i) in the case of Offerings of Securities that are not
exempted securities (as defined in Section 3(a)(12) of the 1934 Act), as consideration for services
rendered in distribution to Dealers who are actually engaged in the investment banking or
securities business and who are either members in good standing of the Financial Industry
Regulatory Authority (“FINRA”) who agree to abide by the applicable rules of FINRA or non-U.S.
banks, brokers, dealers or institutions not eligible for membership in FINRA who represent to you
that they will promptly reoffer such Securities at the Offering Price and will abide by the
conditions with respect to non-U.S. banks, dealers and institutions set forth in Section 10 hereof,
or (ii) in the case of Offerings of Securities that are exempted securities (as defined in Section
3(a)(12) of the 1934 Act), as consideration for services rendered in distribution not only to
Dealers identified in the immediately preceding clause but also to Dealers who are domestic banks
which are not members of FINRA who represent to you that they will promptly reoffer such Securities
at the Offering Price and will abide by the conditions with respect to domestic banks set forth in
Section 10 hereof.
(b) No expenses will be charged to Selected Dealers. A single transfer tax upon the sale of
the Securities by the respective Underwriters to you will be paid by such Underwriters when such
Securities are delivered to you. However, you shall pay any transfer tax on sales of Securities by
you and you shall pay your 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 you and other Selected Dealers as a group or otherwise.
5. Payment and Delivery. You will deliver to us, on the date and at the place and time specified by us orally or In
Writing, payment in the manner and type of currency specified by us orally or In Writing, payable
to the order of UBS Securities LLC (or as we may subsequently inform you), for an amount equal to
the Offering Price plus (if not included in the Offering Price) accrued interest, amortization of
original issue discount or dividends, if any, specified in the prospectus or offering circular or
other similar offering document furnished in connection with the Offering of the Securities. We
may, in our sole discretion, retain the applicable Selling Concession in respect of the Securities
to be purchased by you for release at a date specified by us. We will make payment to the Issuer
or Seller against delivery to us for your account of the Securities to be purchased by you, and we
will deliver to you the Securities paid for by you which will have been retained by or released to
you for direct sale. If we determine that transactions in the Securities are to be settled through
The Depository Trust Company (“DTC”) or another clearinghouse facility and payment in the
settlement currency is supported by such facility, payment for and delivery of Securities purchased
by you will be made through such facility, if you are a participant, or, if you are not a
participant, settlement will be made through your ordinary correspondent who is a participant.
6. Over-allotment; Stabilization; Unsold Allotments; Penalty Bids. We may, with respect to any Offering, be authorized to over-allot in arranging sales to
Selected Dealers, to purchase and sell Securities for long or short account and to stabilize or
maintain the market price of the Securities. You agree that upon our request at any time and from
time to time prior to the termination of the provisions of Section 4 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
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the account of one or more Underwriters such amount of such unsold Securities as we may
designate at the Offering Price less an amount to be determined by us not in excess of the Selling
Concession. Prior to the termination of the Manager’s authority to cover any short position in
connection with the Offering or such other date as the Manager may specify by Wire, if the Manager
determines pursuant to the “Initial Public Offering Tracking System” of DTC that the Manager has
purchased, or any of your customers have sold, a number or amount of Securities retained by, or
released to, you for direct sale or any Securities sold pursuant to Section 4 hereof for which you
received a portion of the Selling Concession, or any Securities which may have been issued on
transfer or in exchange for such Securities, which Securities were therefore not effectively placed
for investment, then you authorize the Manager to charge your account with an amount equal to such
portion of the Selling Concession received by you with respect to such Securities at a price equal
to the total cost of such purchase, including transfer taxes, accrued interest, dividends, and
commissions, if any.
7. Termination.
(a) The terms and conditions set forth in (i) Section 4, (ii) the second sentence of Section
6, (iii) Section 15 and (iv) Section 16 of this Master SDA (collectively, the “offering
provisions”) will terminate with respect to each Offering pursuant to this Master SDA at the close
of business on the later of (a) the date on which the Underwriters pay the Issuer or Seller for the
Securities, and (b) 45 calendar days after the applicable Offering date, unless in either such case
the effectiveness of such offering provisions is extended or sooner terminated as hereinafter
provided. We may terminate such offering provisions other than Section 6 at any time by notice to
you to the effect that the offering provisions are terminated and we may terminate the provisions
of Section 6 at any time at or subsequent to the termination of the other offering provisions by
notice to you to the effect that the penalty bid provisions are terminated. All other provisions
of the Master SDA shall remain operative and in full force and effect with respect to such
Offering.
(b) This Master SDA 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, if we
receive any such notice from you after we have advised you of the amount of Securities allotted to
you, this Master SDA 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 7.
8. Amendments. This Master SDA may be amended from time to time by consent of the parties hereto. Your
consent will be deemed to have been given to an amendment to this Master SDA, and such amendment
will be effective, five business days following written notice to you of such amendment if you do
not notify us In Writing prior to the close of business on such fifth business day that you do not
consent to such amendment. Notwithstanding the foregoing, you agree that any amendment, supplement
or modification of the terms of this Master SDA by Wire or otherwise In Writing will be effective
immediately and your consent will be deemed to have been given to any such amendment, supplement or
modification by your purchase of Securities or otherwise receiving and retaining an economic
benefit for participating
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in the Offering as a Selected Dealer; provided that such amendment,
supplement or modification of the terms of this Master SDA shall only be effective with respect to
the related Offering.
9. Relationship Among Underwriters and Selected Dealers. We shall have full authority to take such actions as we deem advisable in all matters
pertaining to any Offering under this Master SDA. You are not authorized to act as an agent for
us, any Underwriter or the Issuer or other Seller of any Securities in offering Securities to the
public or otherwise. Neither we nor any Underwriter will be under any obligation to you except for
obligations assumed hereby or in any Wire from us in connection with any Offering, and no
obligations on our part as the Manager will be implied hereby or inferred herefrom. Nothing
contained in this Master SDA or any Wire shall constitute the Selected Dealers an association or
partners with us or any Underwriter or with one another, and the obligations of you and each of the
other Selected Dealers or any of the Underwriters are several and not joint. If the Selected
Dealers, among themselves, with us or with the Underwriters, should be deemed to constitute a
partnership for federal income tax purposes, then you elect to be excluded from the application of
Subchapter K, Chapter 1, Subtitle A of the Internal Revenue Code of 1986 and agree not to take any
position inconsistent with such election. You authorize the Manager, in its discretion, to execute
on your behalf such evidence of such election as may be required by the U.S. Internal Revenue
Service. In connection with any Offering, you will be liable for your proportionate share of the
amount of any tax, claim, demand or liability that may be asserted against you alone or against one
or more Selected Dealers participating in such Offering, or against us or the Underwriters, based
upon the claim that the Selected Dealers, or any of them, constitute an association, an
unincorporated business or other entity, including, in each case, your proportionate share of the
amount of any expense (including attorneys’ fees and expenses) incurred in defending against any
such tax, claim, demand or liability.
10. FINRA Compliance. You represent and warrant (a) that you are a broker or dealer (as defined by FINRA actually
engaged in the investment banking or securities business and that you are either (i) a member in
good standing of FINRA or (ii) a non-U.S. bank, broker, dealer or other institution not eligible
for membership in FINRA and not registered under the 1934 Act (a “non-member non-U.S. dealer”), or
(b) only in the case of Offerings of Securities that are exempted securities (as defined in Section
3(a)(12) of the 1934 Act), and such other Securities as from time to time may be sold by a “bank”
(as defined in Section 3(a)(6) of the 1934 Act (a “Bank”)), that you are a domestic Bank which is
not a member of FINRA that makes the representations and agreements applicable to such institutions
contained in this Section 10 hereof as if you were a member of FINRA. You agree that, in
connection with any purchase or sale of the Securities wherein a selling concession, discount or
other allowance is received or granted, you (aa) will comply, if you are a member of FINRA, with
all applicable rules of FINRA, including, without limitation, (i) the requirements of FINRA Rule
5130, and (ii) the requirements of NASD Conduct Rule 2740 (relating to Selling Concessions,
Discounts and Other Allowances) or any FINRA successor rules thereto or (bb) if you are a
non-member non-U.S. dealer, (i) will comply, as though you were a member of FINRA, with the
requirements of the following rules (including any FINRA successor rules thereto): NASD Conduct
Rules 2730 (relating to Securities Taken in Trade), 2740 (relating to Selling Concessions), 2750
(relating to Transactions with Related Persons) and FINRA Rule 5130 (relating to Restrictions on
the Purchase and Sale of Initial Equity Public Offerings) and NASD Conduct Rule 2420 (relating to
Dealing with
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Non-Members) as that Rule applies to a non-member broker/dealer in a non-U.S. country,
and (ii) are, and will remain at all relevant times, an appropriately registered or licensed
broker-dealer (to the extent required) in a non-U.S. jurisdiction and will not engage in any
activities in the United States or with United States persons as would require you to register as a
broker-dealer under Section 15 of the 1934 Act or obtain FINRA membership as set forth in NASD
Conduct Rule 2420(c). In addition, if you are a domestic bank or a non-member non-U.S. dealer, you
agree to comply, as though you were a member of FINRA, and make the representations and agreements
applicable to such institutions contained in this Section 10. You represent and warrant that you
are fully familiar with the above provisions.
You further represent, by your participation in an Offering, that you have provided to us all
documents and other information required to be filed with respect to you, any related person or any
person associated with you or any such related person pursuant to the supplementary requirements of
FINRA’s interpretation with respect to review of corporate financing as such requirements relate to
such Offering.
11. Blue Sky Matters. Upon application to us, we shall inform you as to any advice we have received from counsel
concerning the jurisdictions in which Securities have been qualified for sale or are exempt under
the securities or “Blue Sky” laws of such jurisdictions, but we do not assume any obligation or
responsibility as to your right to sell Securities in any such jurisdiction, notwithstanding any
information we may furnish to you in that connection.
12. Governing Law; Submission to Jurisdiction. This Master SDA (as it may be modified or supplemented by any Wire) will 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. You hereby irrevocably: (a) submit to the jurisdiction of any court of
the State of New York located in the City of New York or the U.S. District Court for the Southern
District of the State of New York for the purpose of any suit, action, or other proceeding arising
out of this Master SDA, or any of the agreements or transactions contemplated hereby (each, a
“Proceeding”), (b) agree that all claims in respect of any Proceeding may be heard and determined
in any such court, (c) waive, to the fullest extent permitted by law, any immunity from
jurisdiction of any such court or from any legal process therein, (d) agree not to commence any
Proceeding other than in such courts, and (e) waive, to the fullest extent permitted by law, any
claim that such Proceeding is brought in an inconvenient forum.
13. Successors and Assigns. This Master SDA will be binding on, and inure to the benefit of, the parties hereto and
other persons specified in Section 1 hereof, and the respective successors and assigns of each of
them; provided, however, that you may not assign your rights or delegate any of your duties under
this Master SDA without our prior written consent.
14. Compliance with Law. You agree that in selling Securities pursuant to any Offering (which agreement shall also
be for the benefit of the Issuer or other Seller of such Securities) you will comply with all
applicable rules and regulations, including the applicable provisions of the 1933 Act and the 1934
Act, the applicable rules and regulations of the Securities and Exchange Commission thereunder, the
applicable rules and regulations of FINRA, the applicable rules and
7
regulations of any securities
exchange having jurisdiction over the Offering and the applicable laws, rules and regulations
specified in Section 3(a) and 3(b) hereof.
15. Discretionary Accounts. In the case of an Offering of Securities registered under the 1933 Act by an Issuer that
was not, immediately prior to the filing of the related registration statement, subject to the
requirements of Section 13(d) or 15(d) of the 1934 Act, you will not make sales to any account over
which you exercise discretionary authority in connection with such sale, except as otherwise
permitted by us for such Offering In Writing.
16. Offering Restrictions. You will not make any offers or sales of Securities or any other securities in
jurisdictions outside the United States except under circumstances that will result in compliance
with (a) applicable laws, including private placement requirements, in each such jurisdiction and
(b) the restrictions on offers or sales set forth in this Master SDA, any Wire or the prospectus,
preliminary prospectus, offering memorandum, offering circular, or preliminary offering memorandum
or preliminary offering circular or other similar offering document, as the case may be. It is
understood that, except as specified in this Master SDA, the prospectus, offering
memorandum or offering circular or other similar offering document, or applicable Wire, no
action has been taken by us, the Issuer, the Guarantor, the Seller or any other party to permit you
to offer Securities in any jurisdiction other than the United States, in the case of a Registered
Offering, where action would be required for such purpose.
17. Prohibition on Money Laundering. The operations of your business and your subsidiaries are and, to your knowledge, have been
conducted at all times in compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money
laundering statutes of all jurisdictions, the rules and regulations thereunder and any related or
similar rules, regulations or guidelines, issued, administered or enforced by any governmental
agency (collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator involving you or any of your
subsidiaries with respect to the Money Laundering Laws is pending or, to your knowledge,
threatened.
18. Liability of Manager. The Manager will not be liable to you for any act or omission, except for obligations
expressly assumed by the Manager In Writing.
19. Notices. Any notice to you will be deemed to have been duly given if mailed, sent by Wire, or
delivered in person to you at the address set forth on the signature page hereto (or to such other
address, telephone, telecopy or telex as you will be notified by us), or if such address is no
longer valid, then at the address set forth in reports filed by you with FINRA. Any such notice
will take effect upon receipt thereof. Communications by Wire will be deemed to be “written”
communications and made In Writing.
20. Severability. In case any provision in this Master SDA or any Wire is deemed invalid, illegal, or
unenforceable, the validity, legality, and enforceability of the remaining provisions will not in
any way be affected or impaired thereby.
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21. Counterparts. This Master SDA may be executed in any number of counterparts, each of which will be deemed
to be an original, and all of which taken together constitute one and the same instrument.
Transmission by telecopy of an executed counterpart of this Master SDA will constitute due and
sufficient delivery of such counterpart.
Please confirm by signing and returning to us the enclosed copy of this Master SDA that your
subscription to, or your acceptance of any reservation of, any Securities pursuant to an Offering
shall constitute (a) acceptance of and agreement to the terms and conditions of this
Master SDA (as supplemented and amended pursuant to Section 8 hereof) together with and
subject to any supplementary terms and conditions contained in any Wire from us in connection with
such Offering, all of which shall constitute a binding agreement between you and us individually or
as representative of any Underwriters, (b) confirmation that your representations and warranties
set forth herein are true and correct at that time, (c) confirmation that your agreements herein
have been and will be fully performed by you to the extent and at the times required thereby and
(d) in the case of any Offering described in Section 3 hereof, acknowledgment that you have
requested and received from us sufficient copies of the final prospectus, offering memorandum 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.
(Remainder of page intentionally left blank)
(Signature page follows)
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This Master SDA is dated as of February 5, 2010, and executed by and between UBS Securities
LLC and [insert name of selected dealer].
| Very truly yours, UBS Securities LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Confirmed as of (date):
CONFIRMED: __________ __, 2010
[INSERT NAME OF SELECTED DEALER]
By: |
||||
| Name: | ||||
| Title: |
Address:
Telephone:
Facsimile:
Email:
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Master Selected Dealers Agreement
GUIDE TO DEFINED TERMS
| Term | Section Reference | |
| 1933 Act | 1 | |
| 1934 Act | 3 | |
| Bank | 10 | |
| Dealer | Foreward | |
| DTC | 5 | |
| FINRA | 4(a) | |
| Guarantor | 3 | |
| In Writing | 2 | |
| Issuer | 3 | |
| Manager | Foreword | |
| Master SDA | Foreword | |
| Money Laundering Laws | 17 | |
| non-member non-U.S. dealer | 10 | |
| Offering | Foreword | |
| Offering Price | 2 | |
| offering provisions | 7(a) | |
| Proceeding | 12 | |
| Reallowance | 1 | |
| Securities | 1 | |
| Selected Dealers | 1 | |
| Seller | 3 | |
| Selling Concession | 1 | |
| Underwriters | 1 | |
| Wire | 2 |
