Exhibit (h)(2)
Revised October 29, 1990
[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 xxxxxxx such securities to other
dealers, provided that in doing so you comply with the Rules of Fair Practice
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 Section 24 of Article III of the Rules of Fair Practice 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 Sections 8 and 36 of Article III of such Rules of Fair Practice and to
comply with Section 25 of Article III thereof as that Section applies to a
non-member foreign dealer or bank. You represent that you are fully familiar
with the above provisions of the Rules of Fair Practice 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 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.
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13. This Agreement shall be governed by the laws of the State of New York.
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
/s/ Xxxx X. Xxxxxxxxx
By: ...................................
Name: Xxxx X. Xxxxxxxxx
Confirmed and accepted as of the
day of , 19
....................................
Name of Dealer
.
....................................
Authorized Officer or Partner
(if not Officer or Partner, attach
copy of Instrument of Authorization)
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