___________________, 1997
SELECTED DEALER AGREEMENT
Dear Sirs:
In connection with the public offering of securities of Ontro, Inc.
underwritten by us, or by a group of underwriters, including us (the
"Underwriters"), represented by us, you are being offered, as principal, a
portion of such securities 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 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. If you are a non-member
foreign dealer or bank, you agree, in making any sales, to comply with the
NASD's interpretation with respect to free-riding and withholding. In
accepting a reallowance from us whether or not we are acting as such
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Representative of the Underwriters, and in allowing a discount to any other
person, you agree to comply with the provision of Rule 2740 of the NASD
Conduct Rules, 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 the NASD 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, as amended (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, including but not limited to Rule 15c2-8 under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), 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 use by the issuer of the securities, such
number of copies of the prospectus (or offering documents for securities not
registered under the 0000 Xxx) as you may reasonably request for the purposes
contemplated by the 1933 Act or the 1934 Act, or the rules and regulations
thereunder.
4. If we are acting as Representative of the Underwriters of securities
of an issuer that is not required to file reports under 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,
0000 Xxxxxxxx Xxxxxxxxx, 0xx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 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
Representatives 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.
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8. If we are acting as Representative for 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 offered are
qualified for sale under, or are exempt 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
such 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
California applicable to agreements made and to be performed entirely within
such State.
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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 0000 Xxxxxxxx Xxxxxxxxx, 0xx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx
00000, Attention: Syndicate Department (000) 000-0000. Upon receipt
thereof, this instrument and such signed duplicate copy will evidence the
agreement between us.
Very truly yours,
XXXXXX XXXXXXX & ASSOCIATES, INC.
By:
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Xxxxxxx X. Xxxxxxxxx
Managing Director
Confirmed and accepted as of the
____ day of ___________, 199__
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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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Please complete and return with one executed copy of the Selected Dealer
Agreement.
Firm Name:
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Address: Street:
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City:
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State:
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Zip Code:
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Phone Number:
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Fax Number:
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Contact Person:
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Tax I.D. #:
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DTC #
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ABA #
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Corporate Delivery Instructions:
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Government Deliver Instructions:
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