XXXXXX XXXXXXX & CO. LLC
MASTER SELECTED DEALERS AGREEMENT
REGISTERED SEC OFFERINGS
AND
EXEMPT OFFERINGS
(OTHER THAN OFFERINGS OF MUNICIPAL SECURITIES)
June 1, 2011
This Master Selected Dealers Agreement (this "MASTER SDA"), dated as of
June 1, 2011, is by and between Xxxxxx Xxxxxxx & Co. 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 not in excess of such Reallowance may be
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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 nonU.X. xxxxx, 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 Xxxxxx Xxxxxxx & Co. 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 the account of one or more Underwriters such
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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 in the Offering as a Selected Dealer;
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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 Non-Members) as that Rule applies to a non-member
6
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 regulations of any securities exchange having
7
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)
This Master SDA is dated as of June 1, 2011, and executed by and
between Xxxxxx Xxxxxxx & Co. LLC and other party named below.
Very truly yours,
XXXXXX XXXXXXX & CO. LLC
By: _____________________________
Name:
Title:
Confirmed as of (date):
CONFIRMED:________________________, 20___
___________________________________
(Legal 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
