XXXXX FARGO SECURITIES, LLC
MASTER SELECTED DEALERS AGREEMENT
REGISTERED SEC OFFERINGS
AND
EXEMPT OFFERINGS
(OTHER THAN OFFERINGS OF MUNICIPAL SECURITIES)
June 10, 2011
This Master Selected Dealers Agreement (this "MASTER SDA"), dated as of
____, __, is by and between Xxxxx Fargo Securities, LLC (including its
successors and assigns) ("WE," "OUR," "US" or the "MANAGER") and the party named
on the signature page hereof (a "DEALER," "YOU" or "YOUR"). From time to time,
in connection with an offering and sale (an "OFFERING") of securities (the
"SECURITIES"), managed solely by us or with one or more other managers or
co-managers, we or one or more of our affiliates may offer you (and others) the
opportunity to purchase as principal a portion of such securities on the terms
set forth herein as a Selected Dealer (as defined below).
References herein to laws, statutory and regulatory sections, rules,
regulations, forms and interpretive materials are deemed to include successor
provisions. The following provisions of this Master SDA shall apply separately
to each individual Offering of Securities. You and we further agree as follows:
1. APPLICABILITY OF THIS MASTER SDA. The terms and conditions of this
Master SDA will be applicable to any Offering in which you accept an offer to
participate as a Selected Dealer (including through the receipt by you of
Securities), whether pursuant to a registration statement filed under the
Securities Act of 1933, as amended (the "1933 ACT"), or exempt from registration
thereunder, in respect of which we (acting for our own account or for the
account of any underwriting or similar group or syndicate) are responsible for
managing or otherwise implementing the sale of Securities to Selected Dealers. A
Dealer is a person who meets the requirements of Section 10 hereof. The parties
who agree to participate (including by the receipt by such parties of
Securities) or are designated a selling concession to Dealers (the "SELLING
CONCESSION"), and reallowance, if any (the "REALLOWANCE"), in such Offering as
selected Dealers are hereinafter referred to as "SELECTED DEALERS". In the case
of any Offering where we are acting for the account of the several underwriters,
initial purchasers or others acting in a similar capacity (the "UNDERWRITERS"),
the terms and conditions of this Master SDA will be for the benefit of such
Underwriters, including, in the case of any Offering where we are acting with
others as representatives of Underwriters, such other representatives.
2. TERMS OF THE OFFERING. We may advise you orally or by one or more
wires, telexes, telecopy or electronic data transmissions, or other written
communications (each, a "WIRE") of the particular method and supplementary terms
and conditions of any Offering (including the price or prices at which the
Securities initially will be offered by the several Underwriters, or if the
price is to be determined by a formula based on market price, the terms of the
formula, (the "OFFERING PRICE") and any Selling Concession or, if applicable,
Reallowance) in which you are invited to participate. Any such Wire may also
amend or modify such provisions of this Master SDA in respect of the Offering to
which such Wire relates, and may contain such supplementary provisions as may be
specified in any Wire relating to an Offering. To the extent such supplementary
terms and conditions are inconsistent with any provision herein, such
supplementary terms and conditions shall supersede any provision of this Master
SDA. Unless otherwise indicated in any such Wire, acceptances and other
communications by you with respect to an Offering should be sent pursuant to the
terms of Section 19 hereof. Notwithstanding that we may not have sent you a Wire
or other form of invitation to participate in such Offering or that you may not
otherwise have responded by wire or other written
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communication (any such communication being deemed "IN WRITING") to any such
Wire or other form of invitation, you will be deemed to have accepted the terms
of our offer to participate as a Selected Dealer and of this Master SDA (as
amended, modified or supplemented by any Wire) by your purchase of Securities or
otherwise receiving and retaining an economic benefit for participating in the
Offering as a Selected Dealer. We reserve the right to reject any acceptance in
whole or in part.
Any Offering will be subject to delivery of the Securities and their
acceptance by us and any other Underwriters may be subject to the approval of
all legal matters by counsel and may be subject to the satisfaction of other
conditions. Any application for additional Securities will be subject to
rejection in whole or in part.
3. Offering Documents. Upon your request, we will furnish, make available
to you or make arrangements for you to obtain copies (which may, to the extent
permitted by law, be in electronic form) of each prospectus, prospectus
supplement, offering memorandum, offering circular or similar offering document,
and any preliminary version thereof, as soon as reasonably practicable after
sufficient quantities thereof have been made available by the issuer of the
Securities (each, an "ISSUER") and any guarantor (each, a "GUARANTOR") thereof,
and, if different from the Issuer, the seller or sellers (each, a "SELLER") of
the Securities. You agree that you will comply with the applicable United States
federal and state laws, and the applicable rules and regulations of any
regulatory body promulgated thereunder, and the applicable laws, rules and
regulations of any non-United States jurisdiction, governing the use and
distribution of offering materials by brokers and dealers. You represent and
warrant that you are familiar with Rule l5c2-8 under the Securities Exchange Act
of 1934, as amended (the "1934 ACT"), relating to the distribution of
preliminary and final prospectuses and agree that your purchase of Securities
shall constitute your confirmation that you have delivered and will deliver all
preliminary prospectuses and final prospectuses required for compliance
therewith. You agree to make a record of your distribution of each preliminary
prospectus and, when furnished with copies of any revised preliminary prospectus
or final prospectus, you will, upon our request, promptly forward copies thereof
to each person to whom you have theretofore distributed a preliminary
prospectus. You agree that, in purchasing Securities, you will rely upon no
statement whatsoever, written or oral, other than the statements in the final
prospectus, offering memorandum, offering circular or similar offering document
delivered to you by us. You are not authorized by the Issuer or other Seller of
Securities offered pursuant to a final prospectus, offering memorandum, offering
circular or similar offering document or by any Underwriters to give any
information or to make any representation not contained therein in connection
with the sale of such Securities.
4. Offering of Securities.
(a) In respect of any Offering, we will inform you of any Selling
Concession and Reallowance, if any. The Offering of Securities is made subject
to the conditions referred to in the prospectus, offering memorandum, or
offering circular or similar offering document related to the Offering and to
the terms and conditions set forth in any Wire. After the initial Offering has
commenced, we may change the Offering Price, the Selling Concession and the
Reallowance (if any) to Selected Dealers. If a Reallowance is in effect, a
reallowance from the Offering Price not in excess of such Reallowance may be
allowed (i) in the case of Offerings of Securities that
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are not exempted securities (as defined in Section 3(a)(12) of the 1934 Act), as
consideration for services rendered in distribution to Dealers who are either
members in good standing of the Financial Industry Regulatory Authority, Inc.
("FINRA") who agree to abide by the applicable rules of FINRA or non-U.S. banks,
brokers, dealers or other non-U.S. institutions not eligible for membership in
FINRA who represent to you that they will promptly reoffer such Securities at
the Offering Price and will abide by the conditions with respect to non-U.S.
banks, dealers and other non-U.S. institutions set forth in Section 10 hereof,
or (ii) in the case of Offerings of Securities that are exempted securities (as
defined in Section 3(a)(12) of the 1934 Act), as consideration for services
rendered in distribution not only to Dealers identified in the immediately
preceding clause but also to Dealers that are Banks (as defined in Section 10
hereof) and represent to you that they will promptly reoffer such Securities at
the Offering Price and will abide by the conditions with respect to Banks set
forth in Section 10 hereof.
(b) No expenses will be charged to Selected Dealers. A single transfer tax
upon the sale of the Securities by the respective Underwriters to you will be
paid by such Underwriters when such Securities are delivered to you. However,
you shall pay any transfer tax on sales of Securities by you and you shall pay
your proportionate share of any transfer tax or other tax (other than the single
transfer tax described above) in the event that any such tax shall from time to
time be assessed against you and other Selected Dealers as a group or otherwise.
5. PAYMENT AND DELIVERY. You will deliver to us, on the date and at the
place and time specified by us orally or In Writing, payment in the manner and
type of currency specified by us orally or In Writing, payable to the order of
Xxxxx Fargo Securities, LLC (or as we may subsequently inform you), for an
amount equal to the Offering Price plus (if not included in the Offering Price)
accrued interest, amortization of original issue discount or dividends, if any,
specified in the prospectus or offering circular or other similar offering
document furnished in connection with the Offering of the Securities. We may, in
our sole discretion, retain the applicable Selling Concession in respect of the
Securities to be purchased by you for release at a date specified by us. We will
make payment to the Issuer or Seller against delivery to us for your account of
the Securities to be purchased by you, and we will deliver to you the Securities
paid for by you which will have been retained by or released to you for direct
sale. If we determine that transactions in the Securities are to be settled
through The Depository Trust Company ("DTC") or another clearinghouse facility
and payment in the settlement currency is supported by such facility, payment
for and delivery of Securities purchased by you will be made through such
facility, if you are a participant, or, if you are not a participant, settlement
will be made through your ordinary correspondent who is a participant.
6. OVER-ALLOTMENT; STABILIZATION; UNSOLD ALLOTMENTS; PENALTY BIDS. We may,
with respect to any Offering, be authorized to over-allot in arranging sales to
Selected Dealers, to purchase and sell Securities for long or short account and
to stabilize or maintain the market price of the Securities. You agree that upon
our request at any time and from time to time prior to the termination of the
provisions of Section 4 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 Selling Concession. Prior to the
termination of the Manager's authority to cover any short position in
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connection with the Offering or such other date as the Manager may specify by
Wire, if the Manager determines pursuant to the "Initial Public Offering
Tracking System" of DTC that the Manager has purchased, or any of your customers
have sold, a number or amount of Securities retained by, or released to, you for
direct sale or any Securities sold pursuant to Section 4 hereof for which you
received a portion of the Selling Concession, or any Securities which may have
been issued on transfer or in exchange for such Securities, which Securities
were therefore not effectively placed for investment, then you authorize the
Manager to charge your account with an amount equal to such portion of the
Selling Concession received by you with respect to such Securities at a price
equal to the total cost of such purchase, including transfer taxes, accrued
interest, dividends, and commissions, if any.
7. TERMINATION.
(a) The terms and conditions set forth in (i) Section 4, (ii) the second
sentence of Section 6, (iii) Section 15 and (iv) Section 16 of this Master SDA
(collectively, the "OFFERING PROVISIONS") will terminate with respect to each
Offering pursuant to this Master SDA at the close of business on the later of
(a) the date on which the Underwriters pay the Issuer or Seller for the
Securities, and (b) 45 calendar days after the applicable Offering date, unless
in either such case the effectiveness of such offering provisions is extended or
sooner terminated as hereinafter provided. We may terminate such offering
provisions other than Section 6 at any time by notice to you to the effect that
the offering provisions are terminated and we may terminate the provisions of
Section 6 at any time at or subsequent to the termination of the other offering
provisions by notice to you to the effect that the penalty bid provisions are
terminated. All other provisions of the Master SDA shall remain operative and in
full force and effect with respect to such Offering.
(b) This Master SDA may be terminated by either party hereto upon five
business days' written notice to the other party; provided, however, that with
respect to any particular Offering, if we receive any such notice from you after
we have advised you of the amount of Securities allotted to you, this Master SDA
shall remain in full force and effect as to such Offering and shall terminate
with respect to such Offering and all previous Offerings only in accordance with
and to the extent provided in subsection (a) of this Section 7.
8. AMENDMENTS. This Master SDA may be amended from time to time by consent
of the parties hereto. Your consent will be deemed to have been given to an
amendment to this Master SDA, and such amendment will be effective, five
business days following written notice to you of such amendment if you do not
notify us In Writing prior to the close of business on such fifth business day
that you do not consent to such amendment. Notwithstanding the foregoing, you
agree that any amendment, supplement or modification of the terms of this Master
SDA by Wire or otherwise In Writing will be effective immediately and your
consent will be deemed to have been given to any such amendment, supplement or
modification by your purchase of Securities or otherwise receiving and retaining
an economic benefit for participating in the Offering as a Selected Dealer;
provided that such amendment, supplement or modification of the terms of this
Master SDA shall only be effective with respect to the related Offering.
9. RELATIONSHIP AMONG UNDERWRITERS AND SELECTED DEALERS. We shall have
full authority to take such actions as we deem advisable in all matters
pertaining to any Offering
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under this Master SDA. You are not authorized to act as an agent for us, any
Underwriter or the Issuer or other Seller of any Securities in offering
Securities to the public or otherwise. Neither we nor any Underwriter will be
under any obligation to you except for obligations assumed hereby or in any Wire
from us in connection with any Offering, and no obligations on our part as the
Manager will be implied hereby or inferred herefrom. Nothing contained in this
Master SDA or any Wire shall constitute the Selected Dealers an association or
partners with us or any Underwriter or with one another, and the obligations of
you and each of the other Selected Dealers or any of the Underwriters are
several and not joint. If the Selected Dealers, among themselves, with us or
with the Underwriters, 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 such election. You authorize
the Manager, in its discretion, to execute on your behalf such evidence of such
election as may be required by the U.S. Internal Revenue Service. In connection
with any Offering, you will be liable for your proportionate share of the 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, 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 the amount of any expense
(including attorneys' fees and expenses) incurred in defending against any such
tax, claim, demand or liability.
10. FINRA COMPLIANCE. You represent and warrant that you are (a) a broker
or dealer (as defined in Section 3(a)(4) or 3(a)(5) of the 0000 Xxx) that is a
member in good standing of FINRA, (b) a non-U.S. bank, broker, dealer or other
non-U.S. institution that is not eligible for membership in FINRA and is not
required to be registered as a broker or dealer under the 1934 Act (a
"NON-MEMBER NON-U.S. DEALER"), or (c) only in the case of Offerings of
Securities that are exempted securities (as defined in Section 3(a)(12) of the
1934 Act), and such other Securities as from time to time may be sold by a
"bank" (as defined in Section 3(a)(6) of the 1934 Act (a "BANK")), that you are
a Bank that is acting in connection with the Offering in accordance with an
applicable exception or exemption from the definitions of broker and dealer
under Sections 3(a)(4) and 3(a)(5) of the 1934 Act.
You further represent, warrant and agree that, in connection with any
purchase or sale of the Securities wherein a selling concession, discount or
other allowance is received or granted by or to you:
(i) if you are a member of FINRA, you will comply with all applicable
rules of FINRA, including, without limitation, the requirements of FINRA Rules
5110, 5121, 5130, 5131 and 5141 (to the extent any or all such rules are
applicable to the particular Offering);
(ii) if you are a non-member non-U.S. dealer, (x) you will not make any
offers or sales of the Securities in, or to nationals or residents of, the
United States, its territories, or its possessions, except to the extent
permitted by Rule 15a-6 under the 1934 Act (or any successor rule thereto
adopted by the U.S. Securities and Exchange Commission (the "SEC")), (y) in
making any offers or sales of the Securities, you will comply with the
requirements of the following FINRA rules (including any successor rules thereto
adopted by FINRA): (A) to the extent that you are acting, in respect of offers
or sales of the Securities, as a "conduit" for, or are
6
receiving in connection with such offers and sales any selling commissions,
discounts, allowances or other compensation from, or are otherwise being
directed with respect to allocations or disposition of the Securities by, a
FINRA member, FINRA Rule 5130 and FINRA Rule 5141 as though you are a member of
FINRA, and (B) NASD Conduct Rule 2420(c), as that Rule applies to a non-member
broker or dealer in a non-U.S. country, and (z) you are, and will remain at all
relevant times, an appropriately registered or licensed broker or dealer (to the
extent required) in your home jurisdiction and in any non-U.S. jurisdiction in
which you engage in activities in connection with an Offering;
(iii) if you are a Bank, (x) to the extent you are acting, in respect of
offers or sales of the Securities, as a "conduit" for, or are receiving in
connection with such offers and sales any selling commissions, discounts,
allowances or other compensation from, or are otherwise being directed with
respect to allocations or disposition of the Securities by, a FINRA member, you
will comply with FINRA Rules 5130 and 5141 as though you are a member of FINRA,
and (y) you will not accept any fee or other compensation, or purchase any
Securities at a discount from the offering price from any Underwriter or Dealer,
which would not be permitted under applicable FINRA rules (including, without
limitation, NASD Conduct Rule 2420 or any successor rule thereto adopted by
FINRA) or would subject you to registration and regulation as a "broker" or
"dealer" under Section 3(a)(4) or 3(a)(5) of the 1934 Act;
(iv) in respect of each Offering in which you participate (as indicated by
your participation therein), you have provided to us all documents and other
information required to be filed with respect to you, any related person or any
person associated with you or any such related person pursuant to FINRA's
requirements and related interpretations with respect to review of corporate
financing transactions as such requirements and interpretations relate to such
Offering; and
(v) you are fully familiar with the 1933 Act, 1934 Act and FINRA
provisions referenced in this Section 10 and elsewhere in this Master SDA.
11. BLUE SKY MATTERS. Upon application to us, we shall inform you as to
any advice we have received from counsel concerning the jurisdictions in which
Securities have been qualified for sale or are exempt under the securities or
"Blue Sky" laws of such jurisdictions, but we do not assume any obligation or
responsibility as to your right to sell Securities in any such jurisdiction,
notwithstanding any information we may furnish to you in that connection.
12. GOVERNING LAW; SUBMISSION TO JURISDICTION. This Master SDA (as it may
be modified or supplemented by any Wire) will be governed by and construed in
accordance with the laws of the State of New York applicable to contracts made
and to be performed in the State. You hereby irrevocably: (a) submit to the
jurisdiction of any court of the State of New York located in the City of New
York or the U.S. District Court for the Southern District of the State of New
York for the purpose of any suit, action, or other proceeding arising out of
this Master SDA, or any of the agreements or transactions contemplated hereby
(each, a "PROCEEDING"), (b) agree that all claims in respect of any Proceeding
may be heard and determined in any such court, (c) waive, to the fullest extent
permitted by law, any immunity from jurisdiction of any such court or from any
legal process therein, (d) agree not to commence any Proceeding other
7
than in such courts, and (e) waive, to the fullest extent permitted by law, any
claim that such Proceeding is brought in an inconvenient forum.
13. SUCCESSORS AND ASSIGNS. This Master SDA will be binding on, and inure
to the benefit of, the parties hereto and other persons specified in Section 1
hereof, and the respective successors and assigns of each of them; provided,
however, that you may not assign your rights or delegate any of your duties
under this Master SDA without our prior written consent.
14. COMPLIANCE WITH LAW. You agree that in selling Securities pursuant to
any Offering (which agreement shall also be for the benefit of the Issuer or
other Seller of such Securities) you will comply with all applicable rules and
regulations, including the applicable provisions of the 1933 Act and the 1934
Act, the applicable rules and regulations of the SEC thereunder, the applicable
rules and regulations of FINRA, the applicable rules and regulations of any
securities exchange or other regulatory or self-regulatory organization having
jurisdiction over the Offering and the applicable laws, rules and regulations
specified in Section 16(a) and 16(b) hereof.
15. DISCRETIONARY ACCOUNTS. In the case of an Offering of Securities
registered under the 1933 Act by an Issuer that was not, immediately prior to
the filing of the related registration statement, subject to the requirements of
Section 13(d) or 15(d) of the 1934 Act, you will not make sales to any account
over which you exercise discretionary authority in connection with such sale,
except as otherwise permitted by us for such Offering In Writing.
16. OFFERING RESTRICTIONS. You will not make any offers or sales of
Securities or any other securities in jurisdictions outside the United States
except under circumstances that will result in compliance with (a) applicable
laws, including private placement requirements, in each such jurisdiction and
(b) the restrictions on offers or sales set forth in this Master SDA, any Wire
or the prospectus, preliminary prospectus, offering memorandum, offering
circular, or preliminary offering memorandum or preliminary offering circular or
other similar offering document, as the case may be. It is understood that,
except as specified in this Master SDA, the prospectus, offering memorandum or
offering circular or other similar offering document, or applicable Wire, no
action has been taken by us, the Issuer, the Guarantor, the Seller or any other
party to permit you to offer Securities in any jurisdiction other than the
United States, in the case of a Registered Offering, where action would be
required for such purpose.
17. PROHIBITION ON MONEY LAUNDERING. The operations of your business and
your subsidiaries are and, to your knowledge, have been conducted at all times
in compliance with applicable financial recordkeeping and reporting requirements
of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the
money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the "MONEY
LAUNDERING LAWS") and no action, suit or proceeding by or before any court or
governmental agency, authority or body or any arbitrator involving you or any of
your subsidiaries with respect to the Money Laundering Laws is pending or, to
your knowledge, threatened.
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18. LIABILITY OF MANAGER. The Manager will not be liable to you for any
act or omission, except for obligations expressly assumed by the Manager In
Writing.
19. NOTICES. Any notice to you will be deemed to have been duly given if
mailed, sent by Wire, or delivered in person to you at the address set forth on
the signature page hereto (or to such other address, telephone, telecopy or
telex as you will be notified by us), or if such address is no longer valid,
then at the address set forth in reports filed by you with FINRA. Any such
notice will take effect upon receipt thereof. Communications by Wire will be
deemed to be "written" communications and made In Writing.
20. SEVERABILITY. In case any provision in this Master SDA or any Wire is
deemed invalid, illegal, or unenforceable, the validity, legality, and
enforceability of the remaining provisions will not in any way be affected or
impaired thereby.
21. COUNTERPARTS. This Master SDA may be executed in any number of
counterparts, each of which will be deemed to be an original, and all of which
taken together constitute one and the same instrument. Transmission by telecopy
of an executed counterpart of this Master SDA will constitute due and sufficient
delivery of such counterpart.
Please confirm by signing and returning to us the enclosed copy of this
Master SDA that your subscription to, or your acceptance of any reservation of,
any Securities pursuant to an Offering shall constitute (a) acceptance of and
agreement to the terms and conditions of this Master SDA (as supplemented and
amended pursuant to Section 8 hereof) together with and subject to any
supplementary terms and conditions contained in any Wire from us in connection
with such Offering, all of which shall constitute a binding agreement between
you and us individually or as representative of any Underwriters, (b)
confirmation that your representations and warranties set forth herein are true
and correct at that time, (c) confirmation that your agreements herein have been
and will be fully performed by you to the extent and at the times required
thereby and (d) in the case of any Offering described in Section 3 hereof,
acknowledgment that you have requested and received from us sufficient copies of
the final prospectus, offering memorandum or offering circular, as the case may
be, with respect to such Offering in order to comply with your undertakings in
Section 16(a) or 16(b) hereof.
(Remainder of page intentionally left blank)
(Signature page follows)
This Master SDA is dated as of ________ __, ____, and executed by and
between Xxxxx Fargo Securities, LLC and [insert name of selected dealer].
Very truly yours,
XXXXX FARGO SECURITIES, LLC
By: ___________________________
Name:
Title:
Confirmed as of (date):
CONFIRMED: __________ __, ____
[INSERT NAME OF SELECTED DEALER]
By: ___________________________
Name:
Title:
Address:
Telephone:
Facsimile:
Email:
10
MASTER SELECTED DEALERS AGREEMENT
GUIDE TO DEFINED TERMS
TERM SECTION REFERENCE
---- -----------------
1933 Act.......................................................................1
1934 Act.......................................................................3
Bank..........................................................................10
Dealer..................................................................Foreword
DTC............................................................................5
FINRA.......................................................................4(a)
Guarantor......................................................................3
In Writing.....................................................................2
Issuer.........................................................................3
Manager.................................................................Foreword
Master SDA..............................................................Foreword
Money Laundering Laws ........................................................17
non-member non-U.S. dealer....................................................10
Offering................................................................Foreword
Offering Price.................................................................2
offering provisions.........................................................7(a)
Proceeding....................................................................12
Reallowance....................................................................1
SEC............................................................................6
Securities.....................................................................1
Selected Dealers...............................................................1
Seller.........................................................................3
Selling Concession.............................................................1
Underwriters...................................................................1
Wire...........................................................................2
