MASTER DEALER AGREEMENT
December 1, 1987
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
000 Xxxxxxxx
Xxx Xxxx, X.X. 00000
Dear Sirs:
In connection with public offerings of securities underwritten by you, or by
a group of Underwriters represented by you, we may be offered the opportunity to
purchase a portion of such securities, as principal, at a discount from the
public offering price representing a selling concession or reallowance granted
as consideration for services rendered by us in the distribution of such
securities. We understand that you are requesting us to agree to the following
terms and provisions, and make the following representations, which, together
with any additional terms and provisions set forth in any wire or letter sent to
us in connection with a particular offering, will govern all such purchases of
securities and the reoffering thereof by us.
Our subscription to, or purchase of, such securities will constitute our
reaffirmation of this Agreement.
1. When you are acting as Representative of the Underwriters in offering
securities to us, it is understood that all offers are made subject to prior
sale of the subject securities, when, as and if such securities are delivered to
and accepted by the Underwriters and subject to the approval of legal matters by
their counsel. In such cases, any order from us for securities will be strictly
subject to confirmation and you reserve the right in your absolute discretion to
reject any order in whole or in part. Upon release by you, we may reoffer such
securities at the public offering price fixed by you. With your consent, we may
allow a discount, not in excess of the reallowance fixed by you, in selling such
securities to other dealers, provided that in doing so we comply with the Rules
of Fair Practice of the National Association of Securities Dealers, Inc. (the
"NASD"). Upon your request, we will advise you of the identity of any dealer to
whom we allow such a discount and any Underwriter or dealer from whom we receive
such a discount. After the securities are released for sale to the public, you
may vary the public offering price and other selling terms.
We represent that we have at all times complied with the provisions of Rule
10b-6 of the Securities and Exchange Commission applicable to this offering.
We agree to advise you from time to time upon request, prior to the
termination of this Agreement with respect to any offering of securities covered
hereby, of the number or amount of offered securities remaining unsold which
were purchased by us from you or from any dealer at a concession from the public
offering price and, on your request, we will resell to you any such securities
remaining unsold at the public offering price less an amount to be determined by
you not in excess of the concession allowed to us.
If prior to the termination of this Agreement with respect to any offering
of securities covered hereby, you purchase or contract to purchase any
securities which were purchased by us from you or from any dealer at a
concession from the public offering price (including any securities represented
by certificates which may have been issued on transfer of or in exchange for
certificates originally representing such securities), in your discretion you
may (i) sell for our account the securities so purchased and debit or credit our
account for the loss or profit resulting from such sale, (ii) charge our account
with an amount equal to the concession to dealers with respect thereto and
credit such amount against the cost thereof or (iii) require us to purchase such
securities at a price equal to the total cost of such purchase including
commissions, accrued interest, amortization of original issue discount or
dividends and transfer taxes on redelivery.
2. Delivery and Payment. If we purchase any securities from you hereunder,
we agree that such purchases will be evidenced by your written confirmation and
will be subject to the terms and conditions set forth in the confirmation and in
any offering circular or prospectus relating to such securities.
Unless you advise us otherwise, securities purchased by us from you
hereunder shall be paid for in full at the public offering price (plus accrued
interest, amortization of original issue discount or dividends, if any), or, if
you shall so advise us, at such price (plus accrued interest, amortization of
original issue discount or dividends, if any) less the applicable concession, at
the office of Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, 000 Xxxxxxxx,
Xxx Xxxx, X.X. 00000, at such time and on such day as you may advise us, by
certified or official bank check payable in New York Clearing House funds to the
order of Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation against delivery of
the securities. If we are called upon to pay the public offering price for the
securities purchased by us, the applicable concession will be paid to us, less
any amounts charged to our account pursuant to Article I above, promptly after
this Agreement terminates with respect to any offering of securities covered
hereby.
3. Termination. You will advise us of the date and time of termination of
this Agreement or of any designated provisions hereof with respect to any
offering of securities covered hereby. With respect to any offering of
securities covered hereby, this Agreement shall in any event terminate 30
business days after the date of the initial date of such offering of securities
unless sooner terminated by you.
4. Representations and Liability of Dealers and Underwriters. We represent
that we are a member in good standing of the NASD or that we are a foreign bank
or dealer not eligible for membership in the NASD which agrees to make no sales
of securities within the United States, its territories or its possessions, or
to persons who are citizens thereof or resident therein. In making sales of
securities, if we are such a member of the NASD. we agree to comply with all
applicable rules of the NASD, including, without limitation, the NASD's
Interpretation with Respect to Free-Riding and Withholding and Section 24 of
Article III of the NASD's Rules of Fair Practice, or, if we are such a foreign
bank or dealer, we agree to comply with such Interpretation, Sections 8, 24 and
36 of such Article as though we were such a member and Section 25 of such
Article as it applies to a non-member broker or dealer in a foreign country. We
represent that we are fully familiar with the above provisions of the Rules of
Fair Practice of the NASD.
If we are a foreign bank or dealer, we represent that in connection with
sales and offers to sell securities made by us outside the United States, (a) we
will not offer or sell any securities in any jurisdiction except in compliance
with applicable laws and (b) we will either furnish to each person to whom any
such sale or offer is made a copy of the then current offering circular or
prospectus or inform such person that such offering circular or prospectus will
be available upon request. It is understood that no action has been taken to
permit a public offering in any jurisdiction other than the United States where
action would be required for such purpose.
If the securities have been registered under the Securities Act of 1933, as
amended (the "Securities Act"), we confirm that we are familiar with the rules
and policies of the Securities and Exchange Commission relating to the
distribution of preliminary and final prospectuses, and we agree that we will
comply therewith in any offering of securities covered by this Agreement. In any
offering of securities covered by this Agreement, we are not authorized to give
any information or make any representation not contained in the offering
circular or prospectus relating thereto.
We agree that you have full authority to take such action as may seem
advisable to you in respect to all matters pertaining to the offering of the
securities. You shall not be under any liability to us for any act or omission,
except for obligations expressly assumed by you in this Agreement.
We agree that in connection with any offering of securities covered by this
Agreement we will comply with the applicable provisions of the Securities Act
and the Securities Exchange Act of 1934 and the applicable rules and regulations
of the Securities and Exchange Commission thereunder, the applicable rules and
regulations of the NASD, and the applicable rules of any securities exchange
having jurisdiction over the offering. Without limiting the generality of the
foregoing, we agree that we will comply with such prospectus delivery
requirements of Rule 15c2-8 under the Securities Exchange Act of 1934 as are
applicable to us.
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All communications to you relating to the subject matter of this Agreement
shall be addressed to the Syndicate Department, Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation, 000 Xxxxxxxx, Xxx Xxxx, X.X. 00000, and any notices to
us shall be deemed to have been duly given if mailed or telegraphed to us at the
address shown below.
5. Blue Sky Matters. You will not have any responsibility with respect to
the right of any dealer to sell securities in any jurisdiction, notwithstanding
any information you may furnish in that connection.
6. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
Very truly yours,
By
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Authorized Signatory
Address:
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