MASTER DEALER AGREEMENT
Exhibit 99(h)(iii)
XXXXXX
XXXXXXX & CO. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxx Xxxx, Xxx Xxxx 00000
August 1,
1982
Dear Sirs:
From time to time we may invite you (and others) to participate
on the terms set forth herein as dealer in connection with
certain public offerings of securities by one or more
underwriters (“Underwriters”) that are managed by us.
If we invite you to participate in a specific offering (an
“Offering”) to which this Master Dealer Agreement
shall apply, we will give you express notice (a “Pricing
Wire”) by wire, telex or other written means specifying
(i) the securities to be offered and the issuer thereof,
(ii) the offering terms, including, if applicable, the
public offering price, concession and reallowance with respect
to such securities and (iii) the extent to which the
general provisions set forth in this Master Dealer Agreement
shall apply.
Each Pricing Wire shall also set forth your allotment for the
Offering to which it relates and you hereby agree to accept such
allotment on the terms set forth or contemplated herein and in
such Pricing Wire without further action on your part. You
may decline such allotment only if we receive by wire, telex or
other written means a notice from you to that effect before the
time specified in such Pricing Wire for such a notice. If we do
not receive such a notice by such time, such Pricing Wire shall
be binding upon you and shall constitute a reconfirmation of
your acceptance of this Master Dealer Agreement.
Except to the extent that the applicable Pricing Wire provides
otherwise, you hereby agree as follows with respect to each
Offering to which we invite you to participate as a dealer. For
purposes of the following provisions, with respect to any
Offering, the term Securities means the securities to be
publicly offered; the term preliminary prospectus means any
preliminary prospectus relating to the offering of the
Securities or any preliminary prospectus supplement together
with a prospectus relating to the offering of the Securities;
the term Prospectus means the prospectus, together with the
final prospectus supplement, if any, relating to the offering of
the Securities, filed pursuant to Rule 424 under the
Securities Act of 1933; and the terms Public Offering Price and
Reallowance shall mean, respectively, the public offering price
and reallowance, if any, then in effect with respect to the
Securities.
I.
1.1. Securities sold to you for reoffering shall be
promptly offered to the public upon the terms set forth in the
Prospectus and the Pricing Wire. If a Reallowance is in effect
for the Offering, Securities may also be offered for sale at a
concession from the Public Offering Price not in excess of the
Reallowance to any Underwriter or to any other member of the
National Association of Securities Dealers, Inc. (the
“NASD”) or to any foreign bank or dealer (not eligible
for membership in the NASD), who enters into an agreement with
us in the form of this Master Dealer Agreement and whom we have
invited to participate as a dealer in connection with the
Offering.
1.2. If the Securities are shares of common stock
(“Common Stock”) of the issuer thereof (the
“Issuer”) or securities of the Issuer that may be
exchanged for or converted into Common Stock, you agree that you
will not, without our approval in advance, at any time prior to
the completion by you of distribution of Securities acquired by
you pursuant to this Master Dealer Agreement and the applicable
Pricing Wire, buy, sell, deal or trade in (i) any Common
Stock, (ii) any security of the Issuer convertible into
Common Stock or (iii) any right
or option to acquire or sell Common Stock or any security of the
Issuer convertible into Common Stock, for your own account or
for the account of a customer, except:
(a) as provided for in this Master Dealer Agreement, the
applicable Pricing Wire, the agreement among underwriters, if
any, or the underwriting agreement relating to the Securities;
(b) that you may convert any security of the Issuer
convertible into Common Stock owned by you and sell the Common
Stock acquired upon such conversion and that you may deliver
Common Stock owned by you upon the exercise of any option
written by you as permitted by the provisions set forth herein;
(c) in brokerage transactions on unsolicited orders which
have not resulted from activities on your part in connection
with the solicitation of purchases and which are executed by you
in the ordinary course of your brokerage business; and
(d) that on or after the date of the initial public
offering of the Securities, you may execute covered writing
transactions in options to acquire Common Stock, when such
transactions are covered by Securities, for the accounts of
customers.
An opening uncovered writing transaction in options to acquire
Common Stock for your account or for the account of a customer
shall be deemed, for purposes of this Section 1.2, to be a
sale of Common Stock which is not unsolicited. The term
“opening uncovered writing transaction in options to
acquire” as used above means a transaction where the seller
intends to become a writer of an option to purchase any Common
Stock which he does not own. An opening uncovered purchase
transaction in options to sell Common Stock for your account or
for the account of a customer shall be deemed, for purposes of
this paragraph, to be a sale of Common Stock which is not
unsolicited. The term “opening uncovered purchase
transaction in options to sell” as used above means a
transaction where the purchaser intends to become an owner of an
option to sell Common Stock which he does not own.
1.3. If the Securities are not shares of Common Stock
or securities of the Issuer that may be exchanged for or
converted into Common Stock, you agree that you will not bid for
or purchase, or attempt to induce any other person to purchase,
any Securities or any other securities of the Issuer designated
in the Pricing Wire other than (i) as provided in this
Master Dealer Agreement, the agreement among underwriters, if
any, or the underwriting agreement relating to the Securities or
(ii) as a broker in executing unsolicited orders.
1.4. You represent that you have not participated,
since the date you were invited to participate in the offering
of the Securities, in any transaction prohibited by
Section 1.2 or 1.3 and that you have at all times complied
with the provisions of
Rule 10b-6
of the Securities and Exchange Commission applicable to such
offering.
1.5. You agree to advise us from time to time upon
request, prior to the termination of this Master Dealer
Agreement as it applies to the offering of the Securities, of
the amount of Securities remaining unsold which were purchased
by you from us or from any other Underwriter or dealer for
reoffering and, on our request, you will resell to us any such
Securities remaining unsold at the purchase price thereof if, in
our opinion, such Securities are needed to make delivery against
sales made to others.
1.6. If prior to the termination of this Master
Dealer Agreement as it applies to the offering of the Securities
(or prior to such earlier date as we have determined) we
purchase or contract to purchase in the open market or otherwise
any Securities which were purchased by you from us or from any
other Underwriter or dealer for reoffering (including any
Securities which may have been issued on transfer or in exchange
for such Securities), and which Securities were therefore not
effectively placed for investment by you, you authorize us
either to charge your account with an amount equal to the
concession from the Public Offering Price at which you purchased
such Securities, which shall be credited against the cost of
such Securities, or to require you to repurchase such Securities
at a price equal to the total cost of such purchase, including
any commissions and transfer taxes on redelivery.
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II.
2.1. If you purchase any Securities from us in
connection with your participation as dealer in such Offering,
you agree that such purchases will be evidenced by our written
confirmation and will be subject to the terms and conditions set
forth in the confirmation and in the Prospectus.
2.2. Securities purchased by you from us in
connection with your participation as dealer in such Offering
shall be paid for in full at (i) the Public Offering Price,
(ii) such price less the applicable concession or
(iii) the price set forth or indicated in the Pricing Wire,
as we shall advise, at the office of Xxxxxx Xxxxxxx &
Co. Incorporated, 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at such
time and on such day as we may advise you, by certified or
official bank check payable in New York Clearing House funds (or
other next day funds) to the order of Xxxxxx Xxxxxxx &
Co. Incorporated against delivery of the Securities. If you are
called upon to pay the Public Offering Price for the Securities
purchased by you, the applicable concession will be paid to you,
less any amounts charged to your account pursuant to
Article I above, after termination of this Master Dealer
Agreement as it applies to the offering of the Securities.
Unless you promptly give us written instructions otherwise, if
transactions in the Securities may be settled through the
facilities of The Depository Trust Company, payment for and
delivery of Securities purchased by you will be made through
such facilities, if you are a member, or, if you are not a
member, settlement may be made through your ordinary
correspondent who is a member.
III.
3.1. We will advise you of the date and time of
termination of this Master Dealer Agreement as it applies to the
offering of the Securities or of any designated provisions
hereof. This Master Dealer Agreement shall, in any event,
terminate with respect to the offering of the Securities
30 days after the date of the initial public offering of
the Securities unless sooner terminated by us.
IV.
4.1. In purchasing Securities, you will re ly only on
the Prospectus and on no other statements whatsoever, written or
oral.
4.2. You represent that you are a member in good
standing of the NASD or that you are a foreign bank or dealer,
not eligible for membership in the NASD, which agrees not to
offer or sell any Securities in, or to persons who are nationals
or residents of, the United States. In making sales of
Securities, if you are such a member, you 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 you are such a
foreign bank or dealer, you agree to comply with such
Interpretation and Sections 8, 24 and 36 of such Article as
though you were such a member and Section 25 of such
Article as it applies to a nonmember broker or dealer in a
foreign country.
4.3. If you are a foreign bank or dealer, you
represent that in connection with sales and offers to sell
Securities made by you outside the United States (a) you
will not offer or sell any Securities in any jurisdiction except
in compliance with applicable laws and (b) you will either
furnish to each person to whom any such sale or offer is made a
copy of the then current preliminary prospectus, if any, or of
the Prospectus (as then amended or supplemented), as the case
may be, or inform such person that such preliminary prospectus,
if any, or Prospectus will be available upon request. Any
offering material in addition to the then current preliminary
prospectus or the Prospectus furnished by you to any person in
connection with any offers or sales referred to in the preceding
sentence (i) shall be prepared and so furnished at your
sole risk and expense and (ii) shall not contain
information relating to the Securities or the Issuer which is
inconsistent in any respect with the information contained in
the then current preliminary prospectus, if any, or in the
Prospectus (as then amended or supplemented), as the case may
be. It is understood that no action has been taken by us or the
Issuer to permit a public offering in any jurisdiction other
than the United States where action would be required for such
purpose.
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4.4. You will not give any information or make any
representations other than those contained in the Prospectus, or
act as agent for the Issuer, any Underwriter or us.
4.5. You agree that we, as manager or co-manager of
the offering of the Securities, have full authority to take such
action as may seem advisable to us in respect of all matters
pertaining to such offering.
4.6. Neither we, as manager, nor any Underwriter
shall be under any liability to you for any act or omission,
except for obligations expressly assumed by us in this Master
Dealer Agreement.
4.7. All communications to us relating to the
offering of the Securities shall be addressed to the Syndicate
Department, Xxxxxx Xxxxxxx & Co. Incorporated, 0000
Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000. Unless you
have otherwise notified us in writing, any notices to you shall
be deemed to have been duly given if mailed or telegraphed to
you at the address shown below.
V.
5.1. Neither we, as manager, nor any Underwriter will
have any responsibility with respect to the right of any dealer
to sell Securities in any jurisdiction, notwithstanding any
information we may furnish in that connection.
VI.
6.1. This Master Dealer Agreement may be terminated
by either party hereto upon five business days’ written
notice to the other party; provided that with respect to
any Offering for which a Pricing Wire was sent prior to such
notice, this Master Dealer Agreement as it applies to such
Offering shall remain in full force and effect and shall
terminate with respect to such Offering in accordance with
Article III hereof.
6.2. This Master Dealer Agreement and each Pricing
Wire shall be governed by and construed in accordance with the
laws of the State of New York.
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Please confirm your acceptance of this Master Dealer Agreement
by signing and returning to us the enclosed duplicate copy
hereof.
Very truly yours,
XXXXXX XXXXXXX & CO. INCORPORATED
By |
Managing Director
Confirmed and accepted as of August 1, 1982
(Name of Dealer)
(Address)
By |
Title:
(If person signing is not an officer or partner,
please attach instrument of authorization.)
please attach instrument of authorization.)
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