EXHIBIT 99.2(h)(3)
Capital Transactions
Form of Master Selected Dealer Agreement
October 1, 1991
Dear Sirs:
On or after the date hereof we may invite you to participate as a selected
dealer in connection with one or more public offerings of securities in which we
are serving as sole or lead representative of the underwriting syndicates or are
otherwise responsible for the distribution of securities to the public by means
of offerings of securities for sale to selected dealers. This Agreement will
confirm our mutual agreement to the following general terms and conditions
applicable to your participation in any such selected dealer group.
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 Dealer") 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 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 alloted to
you, the amount of Securities reserved for purchase by
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the Selected Dealers, the period of such reservation and the information as to
prices and offering date referred to in Section 3(c) hereof). Such invitation
and additional information, to the extent applicable and then determined, shall
be conveyed to you in a telegram, telex, facsimile transmission or other written
form (electronic or otherwise) 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 Prudential Securities Incorporated, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Capital Transactions Group.
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 Public
Offering Price as (hereinafter defined) or, if we shall so advise you, at such
Public Offering Price less the Concession (as hereinafter defined), and payable
to or upon the order of Prudential Securities Incorporated, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, 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(c) 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 two days 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) Registered Offerings. In the case of an Offering of Securities
registered under the Securities Act (a "Registered Offering"), we shall provide
you with such number of copies of any prospectus subject to completion (a
"preliminary prospectus"), the prospectus 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, amendment or
supplement. You agree that in purchasing Securities in a Registered Offering
you will rely upon no statements whatsoever, written or oral, other than the
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statements in the prospectus 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 or the prospectus, 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 (or any successor release or provision) under the Exchange
Act and any applicable foreign laws (and any applicable rules and regulations
thereunder) and agree that you will deliver all preliminary prospectuses and
prospectuses required for compliance therewith. You agree to make a record of
your distribution of each preliminary prospectus and prospectus (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 or
prospectus to each person to whom you have furnished a previous preliminary
prospectus or prospectus and, if also requested by us, indicate to each such
person the changes reflected in such amended or supplemented preliminary
prospectus or prospectus.
b. Non-Registered Offerings. In the case of an Offering other than a
Registered Offering, we shall provide you with such number of copies of any
preliminary offering circular or other document comparable to a preliminary
prospectus in a Registered Offering (a "preliminary offering circular") relating
to such Offering, a proof of an offering circular or other document comparable
to a prospectus in a Registered Offering (an "offering circular") relating to
such Offering or such offering circular, as you may reasonably request. You
shall familiarize yourself with the terms of the Securities and the other terms
of the Offering reflected in any such preliminary offering circular, proof of an
offering circular, offering circular or any amendment or supplement to any of
the foregoing. You agree that in purchasing Securities pursuant to an offering
circular you will rely upon no statements whatsoever, written or oral, other
than the statements in the offering circular 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 the Securities offered pursuant
to the offering circular to give any information or to make any representation
not contained in a preliminary offering circular, a proof of an offering
circular or the offering circular, as amended or supplemented, in connection
with the sale of such Securities. You agree that you will comply with the
applicable federal, state and foreign laws, and the applicable rules and
regulations of any regulatory body promulgated under such laws, governing the
use and distribution of offering circulars by brokers or dealers and, to the
extent consistent with such laws, rules and regulations, you agree that you will
deliver all preliminary offering circulars and offering circulars that would be
required if the provisions of Rule 15c2-8 (or any successor provision) under the
Exchange Act applied to such Offering. You agree to make a record of your
distribution of each preliminary offering circular, proof of an offering
circular and offering circular (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 offering circular, proof of an offering circular or
offering circular to each person to whom you have furnished a previous
preliminary offering circular, proof of an offering circular or offering
circular and, if also requested by us, indicate to each such person the changes
reflected in such amended or supplemented preliminary offering circular, proof
of an offering circular or offering circular.
(c) 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
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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 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 "Public Offering Price", the
"Concession" and the "Reallowance". With respect to each Offering of
Securities, until the provisions of this Section 3(c) shall be terminated
pursuant to Section 4 hereof, you agree to offer Securities to the public only
at the Public Offering Price, except that if a Reallowance is in effect, a
reallowance form the Public 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 who are actually engaged in the investment banking or
securities business, who execute the written agreement prescribed by Section
24(c) of Article III of the Rules of Fair Practice of the NASD and who 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 Public Offering Price and will
abide by the conditions with respect to foreign banks, dealers and institutions
set forth in Section 3(e) hereof. Any dealer who 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
whom you allowed a Reallowance and any Underwriter or dealer from whom you
received a Reallowance.
In connection with any Offering involving the public distribution of the
Securities through two or more underwriting syndicates, you agree to be bound
by, and all offers to sell and sales by you of Securities shall be subject to,
such limitations on offers to sell and sales of Securities as we may advise you
in a written communication, and you agree that any sales made by you to other
dealers shall be made only to such dealers as agree, in their offers to sell and
sales, to be bound by the same limitations.
(d) 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 Dealer 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(c) 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 Public 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(c) 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
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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 Public 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.
(e) NASD. The provisions of this Section 3(e) 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, 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 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.
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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.
(f) 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 Public 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 for us to you in
connection with any 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, in the case of a Registered Offering, 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, in the case of an Offering other than a Registered
Offering, any preliminary offering circular, any proof of an offering circular,
any offering circular, any amendment or supplement to any of the foregoing or
any materials incorporated by reference in any of the foregoing or, in either
case, 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 underwriter or any agreements between or among
underwriting syndicates; 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 will 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 contained here 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 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
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election as may be required by the Internal Revenue Service. In connection with
any 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 this 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.
(g) 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 of 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.
(h) 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 106-b (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 forty-fifth day after the date
the Securities are first released for public offering, but in our discretion
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may be extended by us by written communication for a further period or periods
not exceeding an aggregate of forty-five 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.
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 ▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Capital Transactions Group.
Please confirm, by signing and returning this Agreement to us, your
acceptance of any 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 periods
specified herein, (ii) confirmation that your agreements set forth in this
Agreement have been and will be 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 the prospectus or offering circular, as the case
may be, with respect to such Offering in order to comply with your undertakings
in Section 3(a) or 3(b) hereof.
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Very truly yours,
Prudential Securities Incorporated
By:
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▇▇▇▇▇ ▇▇▇▇▇ ▇▇, Managing Director
CONFIRMED as of the date first written above:
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(Name of Dealer)
By:
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Title*:
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Address:
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*If signer is not an officer or partner, please attach evidence of
authorization.
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