XXXXXX XXXX LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Master Selected Dealer Agreement
January 2, 1996
Gentlemen:
In connection with certain public offerings of securities after the date
hereof for which we are acting as representative or one of the representatives
of the members of the underwriting syndicate, we may invite you to participate
as a selected dealer. This will confirm our mutual agreement as to the general
terms and conditions applicable to such participation.
1. Applicability of this Agreement. From time to time on or after the date
hereof we may be responsible (acting for our own account or for the account of
an underwriting or similar group or syndicate) for managing or otherwise
implementing the sale to selected dealers ("Selected Dealers") of securities
offered publicly pursuant to a registration statement filed under the Securities
Act of 1933, as amended (the "Securities Act"), or offered pursuant to an
exemption from registration thereunder. The terms and conditions of this
Agreement shall be applicable to any such offering in which we have invited you
to participate as a Selected Dealer and have expressly informed you that the
terms and conditions of this Agreement shall apply. This Agreement shall not
apply to any offering of securities effected wholly outside the United States of
America. Any offering to which the terms and conditions of this Agreement apply
is herein referred to as an "Offering", and the securities offered in an
Offering are herein referred to as the "Securities" with respect to such
Offering. In the case of any Offering in which we are acting for the account of
an underwriting or similar group or syndicate ("Underwriters"), the terms and
conditions of this Agreement shall be for the benefit of, and binding upon, such
Underwriters, including, in the case of any Offering in which we are acting with
others as representatives of Underwriters, such other representatives. Some or
all of the Underwriters in any Offering may be included among the Selected
Dealers.
The following provisions of this Agreement shall apply separately to each
Offering.
2. Conditions of Offering; Acceptance and Purchase. Any Offering will be
subject to delivery of the Securities and their acceptance by us and any other
Underwriters, will be subject to
prior sale, to the approval of all legal matters by counsel and the satisfaction
of other conditions, and may be made on the basis of a reservation of Securities
or an allotment against subscription. We reserve the right to reject any
acceptance in whole or in part, to make allotments and to close the subscription
books at any time without notice. You agree to act as principal in purchasing
any Securities.
We shall invite you to participate in an Offering and in connection
therewith shall advise you of the particular method and supplementary terms and
conditions of the Offering (including the amount of Securities to be allotted to
you, the amount of Securities reserved for purchase by the Selected Dealers, the
period of such reservation and the information as to prices and offering date
referred to in Section 3(b) hereof). Such invitation and additional
information, to the extent applicable and then determined, shall be conveyed to
you in a telecopy, telex or other written form of communication (any
communication in any such form being herein referred to as a "written
communication"). Such written communication will include instructions for
advising us of your acceptance of such invitation. Any such additional
information, to the extent applicable but not determined at the time such
invitation is conveyed to you, will be conveyed to you in a subsequent written
communication. To the extent such supplementary terms and conditions are
inconsistent with any provision herein, such terms and conditions shall
supersede any such provision, and you, by your acceptance, shall be bound
thereby. If we have received your acceptance, a subsequent written
communication from us shall state that you may reject your allotment of
Securities by notifying us prior to the time and in the manner specified in such
written communication. Unless otherwise indicated in any such written
communication, acceptances and other communications by you with respect to an
Offering should be sent to Xxxxxx Xxxx LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Syndicate Department.
Unless you are notified otherwise by us, Securities purchased by you shall
be paid for on such date as we shall determine on one day's prior notice to you,
by certified or official bank check or checks drawn on a New York Clearing House
bank and payable in next day funds, in an amount equal to the Offering Price (as
hereinafter defined) or, if we shall so advise you, at such Offering Price less
the Concession (as hereinafter defined), and payable to or upon the order of
Xxxxxx Xxxx LLC, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, against delivery of
the Securities. If Securities are purchased and paid for at such Public
Offering Price, such Concession will be paid after the termination of the
provisions of Section 3(b) hereof with respect to such Securities.
Unless you are notified otherwise by us, payment for and delivery of
Securities purchased by you shall be made through the facilities of The
Depository Trust Company, if you are a member,
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unless you have otherwise notified us within one day after the date the
Securities are first released for public offering or, if you are not a member,
settlement may be made through a correspondent who is a member pursuant to
instructions you may send to us on or before the third business day preceding
the closing for the sale of the Securities.
3. Offering Documents.
(a) Registration Statement and Prospectus. With respect to each Offering of
Securities, we shall provide you with such number of copies of any
prospectus subject to completion, the prospectus, any term sheet, any
abbreviated term sheet and any amendment or supplement to any of the
foregoing as you may reasonably request for the purposes contemplated by
the Securities Act and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the applicable rules and regulations of the Securities
and Exchange Commission (the "Commission") thereunder. You shall
familiarize yourself with the terms of the Securities and the other terms
of the Offering reflected in any such preliminary prospectus, prospectus,
term sheet, abbreviated term sheet, amendment or supplement. You agree
that in purchasing Securities in an Offering you will rely upon no
statements whatsoever, written or oral, other than the statements in the
prospectus and any term sheet or abbreviated term sheet delivered to you by
us. You understand that you will not be authorized by the issuer or any
seller other than the issuer, any guarantor or any insurer of Securities to
give any information or to make any representation not contained in a
preliminary prospectus, the prospectus or any term sheet or abbreviated
term sheet, as amended or supplemented, in connection with the Offering of
such Securities. You represent and warrant that you are familiar with
Securities Act Release No. 4968 and Rule 15c2-8 under the Exchange Act (or
any successor release or provision) and any applicable foreign laws (and
any applicable rules and regulations thereunder) and agree that you will
deliver all preliminary prospectuses, prospectuses, term sheets and
abbreviated term sheets required for compliance therewith. You agree to
make a record of your distribution of each preliminary prospectus,
prospectus, term sheet and abbreviated term sheet (including dates, numbers
of copies and persons to whom sent) and you shall, if requested by us,
furnish a copy of an amended or supplemented preliminary prospectus,
prospectus, term sheet or abbreviated term sheet to each person to whom you
have furnished a previous preliminary prospectus, prospectus, term sheet or
abbreviated term sheet and, if also requested by us, indicate to each such
person the changes reflected in such amended or supplemented preliminary
prospectus, prospectus, term sheet or abbreviated term sheet.
(b) Offer and Sale to the Public. With respect to any Offering of Securities,
we shall inform you by a written communication of the initial public
offering price, if any, the selling concession to Selected Dealers, the
reallowance (if any)
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to other dealers and the time when you may commence selling Securities to
the public. After such public offering has commenced, we may change the
public offering price, the selling concession and the reallowance. The
public offering price, selling concession and reallowance (if any) at any
time in effect with respect to an Offering are hereinafter referred to,
respectively, as the "Offering Price," the "Concession" and the
"Reallowance." With respect to each Offering of Securities, until the
provisions of this Section 3(b) shall be terminated pursuant to Section 4
hereof, you agree to offer Securities to the public only at the Offering
Price, except that if a Reallowance is in effect, a reallowance from the
Offering Price not in excess of such Reallowance may be allowed. If such
Offering is subject to the By-Laws, rules and regulations of the National
Association of Securities Dealers, Inc. (the "NASD"), such Reallowance may
be allowed only as consideration for services rendered in distribution to
dealers which are actually engaged in the investment banking or securities
business, which execute the written agreement prescribed by Section 24(c)
of Article III of the Rules of Fair Practice of the NASD and which are
either members in good standing of the NASD or are foreign banks, dealers
or institutions not eligible for membership in the NASD who represent to
you that they will promptly reoffer such Securities at the Offering Price
and will abide by the conditions with respect to foreign banks, dealers and
institutions set forth in Section 3(d) hereof. Any dealer which is allowed
any Reallowance hereby agrees that such amount will be retained and not
reallowed in whole or in part. Upon our request, you will advise us of the
identity of any dealer to which you allowed a Reallowance and any
Underwriter or dealer from which you received a Reallowance.
(c) Over-allotment; Stabilization; Unsold Allotments. We may, with respect to
any Offering, be authorized (i) to over-allot in arranging for sales of
Securities to Selected Dealers and to institutions and other retail
purchasers and, if necessary, to purchase Securities or other securities of
the issuer at such prices as we may determine for the purpose of covering
such over-allotments and (ii) for the purpose of stabilizing the market in
the Securities, to make purchases and sales of Securities or of any other
securities of the issuer or any guarantor or insurer of the Securities as
we may advise you by written communication or otherwise, in the open market
or otherwise, for long or short account, on a when-issued basis or
otherwise, at such prices, in such amounts and in such manner as we may
determine. You agree that upon our request at any time and from time to
time prior to the termination of the provisions of Section 3(b) 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 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 Concession.
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If, prior to the later of (i) the termination of the provisions of Section
3(b) hereof with respect to any Offering or (ii) the covering by us of any
short position created by us in connection with such Offering for our
account or the account of one or more Underwriters, we purchase or contract
to purchase for our account or the account of one or more Underwriters in
the open market or otherwise any Securities purchased by you under this
Agreement as part of such Offering, you agree to pay us on demand an amount
equal to the Concession with respect to such Securities (unless you shall
have purchased such Securities pursuant to Section 2 hereof at the Offering
Price, in which case we shall not be obligated to pay such Concession to
you pursuant to Section 2) plus, in each case, transfer taxes, broker's
commissions or dealer's xxxx-ups, if any, and accrued interest,
amortization of original issue discount or accumulated dividends, if any,
paid in connection with such purchase or contract to purchase.
(d) NASD. The provisions of this Section 3(d) shall apply to any Offering
subject to the By-Laws, rules and regulations of the NASD.
You represent and warrant that you are a dealer actually engaged in the
investment banking or securities business and you are either a member in good
standing of the NASD or, if you are not such a member, you are a foreign bank,
dealer or institution not eligible for membership in the NASD which agrees to
make no sales within the United States of America, its territories or
possessions or to persons who are citizens thereof or residents therein (other
than through us) and to comply with all applicable rules of the NASD, including
the NASD's Interpretation with Respect to Free-Riding and Withholding, in making
sales outside the United States of America. You agree that, in connection with
any purchase or sale of any of the Securities wherein a selling concession,
discount or other allowance is received or granted, (i) you will comply with the
provisions of Section 24 of Article III of the NASD's Rules of Fair Practice and
(ii) if you are a non-NASD member broker or dealer in a foreign country, you
will also comply, (A) as though you were an NASD member, with the provisions of
Sections 8 and 36 thereof and (B) with Section 25 thereof as that Section
applies to a non-NASD member broker or dealer in a foreign country. You
represent that you are fully familiar with the above provisions of the Rules of
Fair Practice of the NASD.
You represent, by your participation in an Offering, that neither you nor
any of your directors, officers, partners or "persons associated with" you (as
defined in the By-Laws of the NASD) nor, to your knowledge, any "related person"
(as defined in the By-Laws of the NASD, which definition includes counsel,
financial consultants and advisors, finders, members of the selling or
distribution group, and any other persons associated with or related to any of
the foregoing) or any broker-dealer (i) within the last eighteen months has
purchased in private transactions, or intends before, at or within six months
after
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the commencement of the public offering of the Securities, to purchase in
private transactions, any securities (including warrants or options) of the
issuer, its parent (if any), any guarantor or insurer of the Securities or any
subsidiary of any of the foregoing or (ii) within the last twelve months had any
dealings with the issuer, any guarantor or insurer of the Securities, any seller
other than the foregoing or any subsidiary or controlling person of any of the
foregoing (other than in connection with the syndicate agreements relating to
such Offering) as to which documents or information are required to be filed
with the NASD pursuant to its Interpretation with Respect to Review of Corporate
Financing.
If we inform you that the NASD views the Offering as subject to Schedule E
to the By-Laws of the NASD, you agree that you shall, to the extent required,
offer the Securities in compliance with such Schedule and the NASD's
interpretation thereof.
If we inform you that the NASD views the Securities as interests in a
direct participation program, you agree that you shall, to the extent required,
offer the Securities in compliance with the NASD's interpretation of Appendix F
of its Rules of Fair Practice.
(e) Relationship among Underwriters and Selected Dealers. We shall have full
authority to take such action as we may deem advisable in respect of all
matters pertaining to an Offering. We may buy Securities from or sell
Securities to any Underwriter or Selected Dealer and, with our consent, the
Underwriters (if any) and the Selected Dealers may purchase Securities from
and sell Securities to each other at the Offering Price less all or any
part of the Concession. You are not authorized to act as agent for us or
any Underwriter or the issuer, any seller other than the issuer, or any
guarantor or insurer of any Securities in offering Securities to the public
or otherwise.
Neither we nor any Underwriter shall be under any obligation to you except
for obligations assumed hereby or in any written communication from us to you in
connection with an Offering. Furthermore, neither we nor any Underwriter shall
be under any liability for or in respect of the validity, value or delivery of,
or title to, any Securities or any securities issuable upon exercise, conversion
or exchange of any Securities; the form of, or the statements contained in, or
the validity of the registration statement, any preliminary prospectus, the
prospectus, any amendment or supplement to any of the foregoing or any materials
incorporated by reference in any of the foregoing or any letters or instruments
executed by or on behalf of the issuer, any seller other than the issuer, any
guarantor or insurer of the Securities or any other party; the form or validity
of any contract or agreement under which any Securities may be issued or which
governs the rights of holders of any Securities; the form or validity of any
agreement for the purchase of the Securities, any agreement among underwriters;
the
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performance by the issuer, any seller other than the issuer, any guarantor
or insurer of the Securities and any other parties of any agreement on its or
their parts; the qualification for sale in any jurisdiction of any Securities or
securities issuable upon exercise, conversion or exchange of any Securities or
the legality for investment of the Securities or such securities under the laws
of any jurisdiction; or any matter in connection with any of the foregoing;
provided, however, that nothing in this paragraph shall be deemed to relieve us
or any Underwriter from any liability imposed by the Securities Act.
Nothing herein contained or in any written communication from us shall
constitute the Selected Dealers an association or partners with us or any
Underwriter or with one another or, in the case of an Offering involving the
public distribution of the Securities through two or more underwriting
syndicates, with any underwriter or manager participating in any such syndicate.
If the Selected Dealers, among themselves or with the Underwriters and/or such
other underwriters or managers, 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, as
amended, and agree not to take any position inconsistent with that election.
You authorize us, in our discretion, to execute and file on your behalf such
evidence of that election as may be required by the Internal Revenue Service.
In connection with an Offering you shall be liable for your proportionate 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 and/or such other underwriters or managers, if any, 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 any expense incurred in defending against any
such tax, claim, demand or liability.
(f) Legal Qualifications. It is understood that neither we nor any Underwriter
assumes any responsibility with respect to the right of any Selected Dealer
to offer or to sell Securities in any jurisdiction, notwithstanding any
"Blue Sky" memorandum or survey or any other information that we or any
other Underwriter may furnish as to the jurisdictions under the securities
laws of which it is believed the Securities may be sold. You authorize us
to file with the Department of State of the State of New York a Further
State Notice with respect to the Securities, if necessary.
If you propose to offer Securities outside the United States of America,
its territories or its possessions, you will take, at your own expense and risk,
such action, if any, as may be necessary to comply with the laws of each foreign
jurisdiction in which you propose to offer Securities.
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(g) Compliance with Law. You agree that in selling Securities pursuant to any
Offering (which agreement shall also be for the benefit of the issuer, any
seller other than the issuer and any guarantor or insurer of such
Securities) you will comply with the applicable provisions of the
Securities Act and the Exchange Act, the applicable rules and regulations
of the Commission thereunder, the applicable rules and regulations of the
NASD, the applicable rules and regulations of any securities exchange or
other self-regulatory organization having jurisdiction over the offering
and the applicable federal, state or foreign laws, rules and regulations
specified in Section 3 hereof.
You represent and agree that in connection with each Offering to which this
Agreement applies, you will comply with the provisions of Rule l0b-6 (or any
successor provision) under the Exchange Act, as amended or interpreted from time
to time by the Commission. You represent that you are fully familiar with the
provisions of said Rule.
4. Termination. 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 Offering, if we receive any such notice from you after you
have agreed to participate as a Selected Dealer in any Offering, this Agreement
shall remain in full force and effect as to such Offering and shall terminate
with respect to such Offering in accordance with the provisions of the following
paragraph.
Unless this Agreement or any provision hereof is earlier terminated by us,
and except as we may advise you in a written communication, the terms and
conditions of this Agreement will cease to be applicable to your participation
in an Offering at the close of business of the thirtieth day after the date the
Securities are first released for public offering, but in our discretion may be
extended by us by written communication for a further period or periods not
exceeding an aggregate of thirty days; provided, however, that the provisions of
this Agreement that contemplate obligations surviving the termination of its
effectiveness shall survive such termination with respect to any Offering.
5. Amendments. This Agreement may be amended or supplemented by us by written
notice to you and without need for further action on your part and, except for
amendments or supplements set forth in a written communication to you relating
solely to a particular Offering, any such amendment or supplement to this
Agreement shall be effective with respect to any Offering effected after this
Agreement is so amended or supplemented. Each reference herein to "this
Agreement" shall, as appropriate, be to this Master Selected Dealer Agreement as
so amended or supplemented.
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6. Successors and Assigns. This Agreement shall be binding on, and inure to
the benefit of, the parties hereto and the other persons specified in Sections 1
and 3 hereof, and the respective successors and assigns of each of them.
7. Applicable Law. This Agreement and the terms and conditions set forth
herein with respect to any Offering, together with such supplementary terms and
conditions with respect to such Offering as may be contained in any written
communication to you in connection therewith, shall be governed by and construed
in accordance with the laws of the State of New York.
8. Notices. Any notice from us to you shall be deemed to have been duly given
if conveyed to you by written communication or telephone at the address set
forth at the end of this Agreement, or at such other address as you shall have
advised us in writing. Any notice from you to us shall be deemed to have been
duly given if conveyed to us by written communication or telephone at 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department.
Please confirm, by signing and returning this Agreement to us, your
acceptance of and agreement to the terms and conditions of this Agreement (as
amended and supplemented from time to time pursuant to Section 5 hereof),
together with and subject to any supplementary or alternative terms and
conditions contained in any written communication from us in connection with any
offering, all of which shall constitute a binding agreement between you and us,
individually or as representative of any Underwriters. Your subscription to, or
your acceptance of any reservation of any Securities pursuant to an Offering
shall constitute (i) confirmation that your representations and warranties set
forth in this Agreement are true and correct as of the times or for the persons
specified herein, (ii) confirmation that your agreements set forth in this
Agreement have been and will be fully performed by you to the extent and at the
times
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required hereby and (iii) acknowledgment that you have requested and received
from us sufficient copies of each preliminary prospectus and the prospectus with
respect to such Offering in order to comply with your undertakings in Section
3(a) hereof.
Very truly yours,
XXXXXX XXXX LLC
By: ___________________________
CONFIRMED as of the date
first above written:
_____________________________________________
By: _________________________________________
(If signer is not an officer or partner,
please attach evidence of authorization.)
Title: ______________________________________
Address: ____________________________________
____________________________________
____________________________________
____________________________________
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AMENDMENT TO MASTER SELECTED DEALER AGREEMENT
Please be advised that effective as of March 4, 1997 the Xxxxxx Xxxx
Master Selected Dealer Agreement dated January 2, 1996 is hereby amended to
delete the references in Section 3(g) to "Rule 10b-6" and "said Rule," and to
substitute "Regulation M" in their place.
