X.X. XXXXXXX & SONS, INC.
MASTER DEALERS AGREEMENT
------------------------
November 1998
X.X. XXXXXXX & SONS, INC.
Xxx Xxxxx Xxxxxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Equity Syndicate
Ladies and Gentlemen:
In connection with offerings of Securities underwritten by you, or by a
group of Underwriters represented by you, we may be offered by the Underwriters
the opportunity to purchase from the Underwriters a portion of such Securities,
as principals, at a discount from the initial public offering price representing
a selling concession or reallowance (as hereinafter defined) 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 the Prospectus, the
Registration Statement, the Offering Circular or in any wire or letter sent to
us in connection with a particular offering, will govern all such purchases of
such Securities and the reoffering thereof by us. The terms and conditions
herein set forth shall be applicable only to an offering where you are
responsible for reservations of Securities for sale to dealers and have
expressly informed dealers that such terms and conditions shall be applicable.
Defined terms used herein (and not defined herein) have the same meaning as
defined terms in the Master Agreement Among Underwriters.
OUR PURCHASE OF SUCH SECURITIES WILL CONSTITUTE OUR REAFFIRMATION OF
THIS AGREEMENT.
1. OFFERS AND SALES OF SECURITIES. 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. 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 determined by you. With your consent, we
may allow a discount, not in excess of the reallowance established by you, in
selling such Securities to other dealers, provided that in doing so we comply
with the Conduct Rules of the NASD. Dealers to whom an offer is made will be
furnished any preliminary prospectus or preliminary offering circular and the
Prospectus or the Offering Circular, as the case may be, and will be notified by
telefax of the method and terms of the offering, the time of the release of
Securities for sale to the public, the initial public offering price, the
selling concession, the portion of the selling concession allowable to certain
dealers (the REALLOWANCE), the time at which books will be opened, the amount,
if any, of Securities reserved for purchase by dealers and the period of such
reservation. 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 initial public offering price, the selling concession
and the reallowance and other selling terms and arrangements.
We represent that we have at all times complied with the provisions of
Regulation M promulgated by the Commission under the Exchange Act applicable to
this offering.
We agree to advise you at any time or times, upon request, prior to the
termination of this Agreement with respect to any offering of Securities covered
hereby, of the number or amount of Securities remaining unsold that were
purchased by us from you or from any dealer at a selling concession from the
initial public offering price and, on your request, we will resell to you any
such Securities remaining unsold at the initial public offering price less an
amount to be determined by you not in excess of the selling concession allowed
to us.
If, prior to (a) the termination of this Agreement with respect to the
offering of the Securities or (b) the covering by X.X. Xxxxxxx & Sons, Inc. of
any short position created by X.X. Xxxxxxx & Sons, Inc. for the accounts of the
Underwriters pursuant to Section 6 of the Master Agreement Among Underwriters,
you shall purchase or contract to purchase any of the Securities sold directly
by us, 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 selling
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 the Offering Circular or the 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 initial 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 selling concession, at the office of X.X. Xxxxxxx & Sons, Inc., Xxx
Xxxxx Xxxxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention: Equity Syndicate, at such
time and on such day as you may advise us, by wire transfer of immediately
available funds to an account designated by X.X. Xxxxxxx & Sons, Inc. against
delivery of the Securities. If we are called upon to pay the initial public
offering price for the Securities purchased by us, the applicable selling
concession will be paid to us, less any amounts charged to our account pursuant
to Article 1 above, promptly after this Agreement terminates with respect to any
offering of Securities covered hereby.
Each dealer that is a member of DTC authorizes us, in our discretion,
to arrange for delivery of Securities to such dealer and for payment therefor by
and to such dealer through the facilities of DTC.
2
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. Notwithstanding any distribution and settlement
of accounts, dealers shall be liable for their proper proportion of any transfer
tax or other liability that may be asserted against the Representatives or any
of the Underwriters or dealers based upon the claim that the dealers constitute
an association, a partnership, an unincorporated business or other separate
entity.
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. In making sales
of Securities, if we are such a member, 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 Rule 2740 of the NASD Conduct Rules,
or, if we are such a foreign bank or dealer, we agree to comply with such
Interpretation, Rules 2730, 2740 and 2750 of the NASD Conduct Rules as though we
were such a member and Rule 2420 of the NASD Conduct Rules 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 Conduct Rules 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 Offering Circular or the
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 Act, we confirm that
we are familiar with the rules and policies of the 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 the 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.
5. MISCELLANEOUS. No person is authorized to give any information or
make any representations other than as contained in the Prospectus, the
Registration Statement or the Offering Circular in connection with the offering
or sale of the Securities and is not authorized to act as agent for the Issuer
or other seller of the Securities or any of the Underwriters in offering the
Securities to the public or otherwise. Nothing contained herein shall constitute
dealers partners with any of the Underwriters or with one another.
3
Neither the Representatives nor any Underwriter shall be under any
liability (except for their own want of good faith) for or in respect of the
validity of, or title to, any Securities; the form of, or the statements
contained in, or the validity or value of, the Registration Statement, any
preliminary prospectus or preliminary offering circular, the Prospectus, the
Offering Circular, or any amendment or supplement thereto, any document that may
be incorporated by reference therein, or any letters or instruments executed by
or on behalf of the Issuer or such seller of the Securities or others; the form
or validity of the agreement for the purchase of the Securities, the Master
Agreement Among Underwriters or the instrument containing the terms and
conditions of the Securities; the delivery of the Securities; the performance by
the Issuer or such seller of the Securities or others of any agreement on its or
their part; the qualifications of the Securities for sale; or any matter in
connection with any of the foregoing; provided, however, that nothing in this
paragraph shall be deemed to relieve the Representatives or any Underwriter from
any liability imposed by the Act.
Dealers, by their participation, represent that neither they nor any of
their directors, officers, partners or "persons associated with" them (as
defined in the By-Laws of the NASD) nor, to their knowledge, any "related
person" (defined by the NASD to include counsel, financial consultants and
advisers, finders, members of the selling or distribution group, any NASD member
participating in the public offering and any and all other persons associated
with or related to and members of the immediate family of any of the foregoing)
within the last 12 months had any dealings with the Issuer, any selling security
holder or any subsidiary or controlling person thereof (other than relating to
the proposed Underwriting Agreement) as to which documents or information are
required to be filed with the NASD pursuant to its Corporate Financing Rule and
as to which such documents or information have not been so filed in a timely
manner.
6. NOTICES TO X.X. XXXXXXX & Sons, Inc. All communications to you
relating to the subject matter of this Agreement shall be addressed to X.X.
Xxxxxxx & Sons, Inc., Xxx Xxxxx Xxxxxxxxx, Xx. Xxxxx, Xxxxxxxx 00000, Attention:
Equity Syndicate, and any notices to us shall be deemed to have been duly given
if mailed or telefaxed to us at the address shown below.
7. 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.
8. GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
4
Very truly yours,
By:
--------------------------------
Authorized Signatory
Name:
Title:
Address:
-------------------------------------
-------------------------------------
-------------------------------------
-------------------------------------
5
Confirmed as of the date first above written.
X.X. XXXXXXX & SONS, INC.
By: __________________________________
Vice President
Syndicate Manager
6
