Exhibit h.3
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
MASTER SELECTED DEALERS AGREEMENT
January 29, 2001
Ladies and 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 by the Issuer 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 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated, 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 ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & Company, Incorporated, One Financial Plaza,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, 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, 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
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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. 33-4968 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) 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 Conduct
Rules (together with applicable interpretations thereunder, the "NASD Conduct
Rules") 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 Rule
2740(c) of the NASD Conduct Rules 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
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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. 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 ▇▇▇▇-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 NASD Conduct Rules, 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 Rule 2740 of the NASD Conduct Rules 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 NASD's Interpretation with Respect to
Free-Riding and Withholding, Rules 2730, 2740 and 2750 of the NASD Conduct Rules
and (B) with
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Rule 2420 of the NASD Conduct Rules as that Rule 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, any NASD member participating in the offering, 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 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
Corporate Financing Rule.
If we inform you that the NASD views the Offering as subject to
Schedule E to Article IV, Section 2 of the By-Laws of the NASD, you agree that
you shall, to the extent required, offer the Securities in compliance with Rule
2810 of the NASD Conduct Rules.
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, provided that in doing so they comply with the NASD Conduct Rules.
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
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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 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.
(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
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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 Regulation
M (or any successor provision) under the Exchange Act, as amended or interpreted
from time to time by the Commission, with regard, among other things, to trading
by underwriters. You represent that you are fully familiar with the provisions
of said Regulation.
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 form
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 his 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.
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 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
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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 One Financial Plaza, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇, 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 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,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ & COMPANY, INCORPORATED
By:
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Name: T. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ IV
Title: Senior Vice President
CONFIRMED as of the date
first above written:
-----------------------------------
By:
------------------------------
Title:
(If signer is not an officer
or partner, please attach
evidence of authorization.)
Address:
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