EXHIBIT 99.H(iii)
S&C Draft dated November 10, 1995
SELLING GROUP AGREEMENT
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November __, 1995
Xxxxx Xxxxxx Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We understand that The Brazil Fund, Inc., a Maryland corporation (the
"Fund"), proposes to issue to its shareholders of record as of November 20, 1995
rights ("Rights") entitling their holders to subscribe for an aggregate of
4,050,000 shares ("Shares") of the Fund's Common Stock, par value $.01 per share
("Common Stock"). We further understand that the Fund has appointed you as the
exclusive Dealer Manager in connection with the offer of Shares contemplated by
the proposed issuance of Rights (the "Offer").
We hereby express our interest in participating in the Offer as a
Selling Group Member.
We hereby agree with you as follows:
I.
We have received and reviewed the Prospectus dated November 20, 1995
(the "Prospectus") relating to the Offer and we understand that additional
copies of the Prospectus (or of the Prospectus as it may be subsequently
supplemented or amended, if applicable) and any other solicitation materials
authorized by the Fund relating to the Offer ("Offering Materials") will be
supplied to us in reasonable quantities upon our request therefor to you. We
agree that we will not use any solicitation material other than the Prospectus
(as supplemented or amended, if applicable) and such Offering Materials and we
agree not to make any representation, oral or written, to any shareholders or
prospective shareholders of the Fund that are not contained in the Prospectus,
unless previously authorized to do so in writing by the Fund.
II.
From time to time during the period (the "Subscription Period")
commencing on November 20, 1995 and ending at 5:00 p.m., New York time, on
December 15, 1995, unless extended by the Fund and you (the "Expiration Date"),
we may solicit the exercise of Rights in connection with the Offer. We will be
entitled to receive fees in the amounts and at the times described in Article IV
of this Agreement with respect to Shares purchased pursuant to the exercise of
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Rights and with respect to which The First National Bank of Boston (the
"Subscription Agent") has received, no later than 5:00 p.m., New York time, on
the Expiration Date, either (i) a properly completed and executed Subscription
Certificate (in the form attached to the Prospectus), identifying us as the
broker-dealer having been instrumental in the exercise of such Rights, and full
payment for such Shares or (ii) a Notice of Guaranteed Delivery (in the form
attached to the Prospectus) guaranteeing to the Subscription Agent by the close
of business of the third business day after the Expiration Date of a properly
completed and duly executed Subscription Certificate, similarly identifying us,
and full payment for such Shares. We understand that we will not be paid these
fees with respect to Shares purchased pursuant to an exercise of Rights for our
own account or for the account of any of our affiliates except that we may
receive such fees with respect to Shares purchased pursuant to an exercise of
Rights for our own account provided that such Shares are offered and sold by us
to our clients. We also understand and agree that we are not entitled to
receive any fees in connection with the solicitation of the exercise of Rights
other than pursuant to the terms of this Agreement and, in particular, that we
will not be entitled to receive any fees under the Fund's Soliciting Dealer
Agreement.
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We agree to solicit the exercise of Rights in accordance with the
Securities Act of 1933, as amended (the "Securities Act"), the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the Investment
Company Act of 1940, as amended, and the rules and regulations under each such
Act, any applicable securities laws of any state or jurisdiction where such
solicitations may be lawfully made, the applicable rules and regulations of any
self-regulatory organization or registered national securities exchange and
customary practice and subject to the terms of the Subscription Agent Agreement
between the Fund and the Subscription Agent and the procedures described in the
Fund's registration statement on Form N-2 (File No. 33-63381, as amended (the
"Registration Statement").
III.
From time to time during the Subscription Period, we may indicate
interest in purchasing Shares from you as Dealer Manager. We understand that
from time to time you intend to offer Shares obtained or to be obtained by you
through the exercise of Rights to Selling Group Members who have so indicated
interest at prices which shall be determined by you (the "Offering Price"). We
agree that with respect to any such Shares purchased by us from you the sale of
such Shares to us shall be irrevocable and we will offer them to the public at
the Offering Price at which we
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purchase them from you. Shares not sold by us at such Offering Price may be
offered by us after the next succeeding Offering Price is set at the latest
Offering Price set by you. You agree that, if requested by any Selling Group
Member, and subject to applicable law, you will set a new Offering Price prior
to 4:00 p.m., New York time, on any business day.
We agree to advise you from time to time upon request, prior to the
termination of this Agreement, of the number of Shares remaining unsold which
were purchased by us from you and, on your request, we will resell to you any of
such Shares remaining unsold at the purchase price thereof if in your opinion
such Shares are needed to make delivery against sales made to other Selling
Group Members.
Any shares purchased hereunder from you shall be subject to regular
way settlement through the facilities of the Depository Trust Company.
IV.
We understand that you will remit to us, on or shortly after [DECEMBER
29], 1995 (or, if the Expiration Date is extended, on such later date not more
than 15 days after the Expiration Date as you may determine), following receipt
by you from the Fund, a fee equal to an amount computed by multiplying 0.025 by
the sum of (i) the number of Shares purchased pursuant to each Subscription
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Certificate upon which we are designated, as certified to you by the
Subscription Agent, as a result of our solicitation efforts in accordance with
Article II of this Agreement, and (ii) the number of Shares sold by you to us in
accordance with Article III of this Agreement (less any Shares resold to you
pursuant to the second paragraph thereof), multiplied by the subscription price
of $_____. Your only obligation with respect to payment of the foregoing fee to
us is to remit to us amounts owing to us and actually received by you from the
Fund. Except as aforesaid, you shall be under no liability to make any payments
to us pursuant to this Agreement.
V.
We agree that you, as Dealer Manager, have full authority to take such
action as may seem advisable to you in respect of all matters pertaining to the
Offer. You are authorized to approve on our behalf any amendments or
supplements to the Registration Statement or the Prospectus.
VI.
We represent that we are a member in good standing of the NASD and, in
making sales of Shares, agree to comply with all applicable rules of the NASD
including, without limitation, the NASD's Interpretation with Respect to Free-
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Riding and Withholding and Section 24 of Article III of the NASD's Rule of Fair
Practice.
We understand that no action has been taken by you or the Fund to
permit the solicitation of the exercise of Rights or the sale of Shares in any
jurisdiction (other than the United States) where action would be required for
such purpose.
We represent that we have at all times complied with the provisions of
Rule 10b-6 under the Securities Act applicable to the Offer and we agree that we
will not, without your approval in advance, buy, sell, deal or trade in, on a
when-issued basis or otherwise, the Rights or the Shares or any other option to
acquire or sell Shares for our own account or for the accounts of customers,
except as provided in Articles II and III hereof and except that we may buy or
sell Rights or Shares in brokerage transactions on consolidated orders which
have not resulted from activities on our part in connection with the
solicitation of the exercise of Rights and which are executed by us in the
ordinary course of our brokerage business.
We will keep an accurate record of the names and addresses of all
persons to whom we give copies of the Registration Statement, the Prospectus,
any preliminary prospectus (or any amendment or supplement thereto) or any
Offering Materials and, when furnished with any subsequent amendment to the
Registration Statement and any subsequent
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prospectus, we will, upon your request, promptly forward copies thereof to such
persons.
VII.
Nothing contained in this Agreement will constitute the Selling Group
Members partners with the Dealer Manager or with one another or create any
association between those parties, or will render the Dealer Manager or the Fund
liable for the obligations of any Selling Group Member. The Dealer Manager will
be under no liability to make any payment to any Selling Group Member other than
as provided in Article IV of this Agreement, and will be subject to no other
liabilities to any Selling Group Member, and no obligations of any sort will be
implied.
We agree to indemnify and hold harmless you and each other Selling
Group Member and each person, if any, who controls you and any such Selling
Group Member within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act, against loss or liability caused by any breach
by us of the terms of this Agreement.
VIII.
We agree to pay any transfer taxes which may be assessed and paid on
account of any sales or transfers for our account and a percentage, based upon
the ratio of the fees payable to us pursuant to Article IV of this Agreement
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to the aggregate fees payable by the Fund to you and all Selling Group Members
pursuant to Article IV of each Selling Group Agreement, of (i) all expenses
incurred by you in investigating or defending against any claim or proceeding
which is asserted or instituted by any party (including any governmental or
regulatory body) other than a Selling Group Member relating to the Registration
Statement, any preliminary prospectus, the Prospectus (or any amendment or
supplement thereto) or any Offering Materials and (ii) any liability, including
attorneys' fees, incurred by you in respect of any such claim or proceeding,
whether such liability shall be the result of a judgment or as a result of any
settlement agreed to by you, other than any such expense or liability as to
which you receive indemnity pursuant to Article VII of this Agreement or
indemnity or contribution from the Fund. Our agreements contained in this
Article VIII shall remain operative and in full force and effect regardless of
(i) any investigation made by or on behalf of any Selling Group Member or any
person controlling any Selling Group Member or by or on behalf of the Fund, its
directors or officers or any person controlling the Fund and (ii) acceptance of
and payment for the Shares.
IX.
All communications to you relating to the Offer will be addressed to:
__________ Department, Xxxxx Xxxxxx
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Inc., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
____________________.
X.
This Agreement will be governed by the internal laws of the State of
New York.
Very truly yours,
_________________________
[Firm Name]
By_______________________
Name:
Title:
Confirmed and Accepted
this ___ day of November, 1995
XXXXX XXXXXX INC.
By___________________________
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