Ex (h)(2)
[LOGO]
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED
XXXXXXX XXXXX WORLD HEADQUARTERS
NORTH TOWER WORLD FINANCIAL CENTER
NEW YORK, N.Y. 10281-1305
STANDARD DEALER AGREEMENT
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Dear Sirs:
In connection with public offerings of securities underwritten by us,
or by a group of underwriters (the "Underwriters") represented by us, you may
be offered the opportunity to purchase a portion of such securities, as
principal, at a discount from the offering price representing a selling
concession or reallowance granted as consideration for services rendered by
you in the sale of such securities. We request that you agree to the following
terms and provisions, and make the following representations, which, together
with any additional terms and provisions set forth in any wire or letter sent
to you in connection with a particular offering, will govern all such
purchases of securities and the reoffering thereof by you.
Your subscription to, or purchase of, such securities will constitute
your reaffirmation of this Agreement.
1. When we are acting as representative (the "Representative") of the
Underwriters in offering securities to you, it should be understood that all
offers are made subject to prior sale of the subject securities, when, as and
if such securities are delivered to and accepted by the Underwriters and
subject to the approval of legal matters by their counsel. In such cases, any
order from you for securities will be strictly subject to confirmation and we
reserve the right in our uncontrolled discretion to reject any order in whole
or in part. Upon release by us, you may reoffer such securities at the
offering price fixed by us. With our consent, you may allow a discount, not in
excess of the reallowance fixed by us, in selling such securities to other
dealers, provided that in doing so you comply with the Conduct Rules of the
National Association of Securities Dealers, Inc. (the "NASD"). Upon our
request, you will advise us of the identity of any dealer to whom you allow
such a discount and any Underwriter or dealer from whom you receive such a
discount. After the securities are released for sale to the public, we may
vary the offering price and other selling terms.
2. You represent that you are a dealer actually engaged in the
investment banking or securities business and that you are either (i) a member
in good standing of the NASD or (ii) a dealer with its principal place of
business located outside the United States, its territories or possessions and
not registered under the Securities Exchange Act of 1934 (a "non-member
foreign dealer") or (iii) a bank not eligible for membership in the NASD. If
you are a non-member foreign dealer, you agree to make no sales of securities
within the United States, its
territories or its possessions or to persons who are nationals thereof or
residents therein. Non-member foreign dealers and banks agree, in making any
sales, to comply with the NASD's interpretation with respect to free-riding
and withholding. In accepting a selling concession where we are acting as
Representative of the Underwriters, in accepting a reallowance from us whether
or not we are acting as such Representative, and in allowing a discount to any
other person, you agree to comply with the provisions of Rule 2740 of the
Conduct Rules of the NASD, and, in addition, if you are a non-member foreign
dealer or bank, you agree to comply, as though you were a member of the NASD,
with the provisions of Rules 2730 and 2750 of of such Conduct Rules and to
comply with Rule 2420 thereof as that Rule applies to a non-member foreign
dealer or bank. You represent that you are fully familiar with the above
provisions of the Conduct Rules of the NASD.
3. If the securities have been registered under the Securities Act of
1933 (the "1933 Act"), in offering and selling such securities, you are not
authorized to give any information or make any representation not contained in
the prospectus relating thereto. You confirm that you are familiar with the
rules and policies of the Securities and Exchange Commission relating to the
distribution of preliminary and final prospectuses, and you agree that you
will comply therewith in any offering covered by this Agreement. If we are
acting as Representative of the Underwriters, we will make available to you,
to the extent made available to us by the issuer of the securities, such
number of copies of the prospectus or offering documents, for securities not
registered under the 1933 Act, as you may reasonably request.
4. If we are acting as Representative of the Underwriters of
securities of an issuer that is not required to file reports under the
Securities Exchange Act of 1934 (the "1934 Act"), you agree that you will not
sell any of the securities to any account over which you have discretionary
authority.
5. Payment for securities purchased by you is to be made at our
office, Xxx Xxxxxxx Xxxxx, 000 Xxxxxxxx, Xxx Xxxx, X.X. 00000 (or at such
other place as we may advise), at the offering price less the concession
allowed to you, on such date as we may advise, by certified or official bank
check in New York Clearing House funds (or such other funds as we may advise),
payable to our order, against delivery of the securities to be purchased by
you. We shall have authority to make appropriate arrangements for payment for
and/or delivery through the facility of The Depository Trust Company or any
such other depository or similar facility for the securities.
6. In the event that, prior to the completion of the distribution of
securities covered by this Agreement, we purchase in the open market or
otherwise any securities delivered to you, if we are acting as Representative
of the Underwriters, you agree to repay to us for the accounts of the
Underwriters the amount of the concession allowed to you plus brokerage
commissions and any transfer taxes paid in connection with such purchase.
7. At any time prior to the completion of the distribution of
securities covered by this Agreement you will, upon our request as
Representative of the Underwriters, report to us the amount of securities
purchased by you which then remains unsold and will, upon our request, sell to
us for the account of one or more of the Underwriters such amount of such
unsold
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securities as we may designate, at the offering price less an amount to be
determined by us not in excess of the concession allowed to you.
8. If we are acting as Representative of the Underwriters, upon
application to us, we will inform you of the states and other jurisdictions of
the United States in which it is believed that the securities being offered
are qualified for sale under, or are exempt from the requirements of, their
respective securities laws, but we assume no responsibility with respect to
your right to sell securities in any jurisdiction. We shall have authority to
file with the Department of State of the State of New York a Further State
Notice with respect to the securities, if necessary.
9. You agree that in connection with any offering of securities
covered by this Agreement you will comply with the applicable provisions of
the 1933 Act and the 1934 Act and the applicable rules and regulations of the
Securities and Exchange Commission thereunder, the applicable rules and
regulations of the NASD, and the applicable rules of any securities exchange
having jurisdiction over the offering.
10. We shall have full authority to take such action as we may deem
advisable in respect of all matters pertaining to any offering covered by this
Agreement. We shall be under no liability to you except for our lack of good
faith and for obligations assumed by us in this Agreement, except that you do
not waive any rights that you may have under the 1933 Act or the rules and
regulations thereunder.
11. Any notice from us shall be deemed to have been duly given if
mailed or transmitted by any standard form of written telecommunications to
you at the above address or at such other address as you shall specify to us
in writing.
12. With respect to any offering of securities covered by this
Agreement, the price restrictions contained in Paragraph 1 hereof and the
provisions of Paragraphs 6 and 7 hereof shall terminate as to such offering at
the close of business on the 45th day after the securities are released for
sale or, as to any or all such provisions, at such earlier time as we may
advise. All other provisions of this Agreement shall remain operative and in
full force and effect with respect to such offering.
13. This Agreement shall be governed by the laws of the State of New
York.
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Please confirm your agreement hereto by signing the enclosed
duplicate copy hereof in the place provided below and returning such signed
duplicate copy to us at World Headquarters, North Tower, World Financial
Center, New York, N.Y. 10281-1305, Attention: Corporate Syndicate. Upon
receipt thereof, this instrument and such signed duplicate copy will evidence
the agreement between us.
Very truly yours,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
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Name:
Confirmed and accepted as of the
day of , 20
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Name of Dealer
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Authorized Officer or Partner
(if not Officer or Partner, attach
copy of Instrument of Authorization)
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