1
Exhibit (h.2)
Form of Master Selected Dealer Agreement
_______, 1999
Dear Sirs:
On or after the date hereof we may invite you to
participate as a selected dealer in connection with one
or more public offerings of securities in which we are
serving as sole or lead representative of the
underwriting syndicates or are otherwise responsible
for the distribution of securities to the public by
means of offerings of securities for sale to selected
dealers. This Agreement will confirm our mutual
agreement to the following general terms and conditions
applicable to your participation in any such selected
dealer group.
1. Applicability of this Agreement. From time to
time on or after the date hereof we may be responsible
(acting for our own account or for the account of an
underwriting or similar group or syndicate) for
managing or otherwise implementing the sale to selected
dealers ("Selected Dealer") of securities offered
publicly pursuant to a registration statement filed
under the Securities Act of 1933, as amended (the
"Securities Act"), or offered pursuant to an exemption
from registration thereunder. The terms and conditions
of this Agreement shall be applicable to any such
offering in which we have invited you to participate as
a Selected Dealer and have expressly informed you that
the terms and conditions of this Agreement apply. This
Agreement shall not apply to any offering of securities
effected wholly outside the United States of America.
Any offering to which the terms and conditions of this
Agreement apply is herein referred to as an "Offering",
and the securities offered in an Offering are herein
referred to as the "Securities" with respect to such
Offering. In the case of any Offering in which we are
acting for the account of an underwriting or similar
group or syndicate ("Underwriters"), the terms and
conditions of this Agreement shall be for the benefit
of, and binding upon, such Underwriters, including, in
the case of any Offering in which we are acting with
others as representatives of Underwriters, such other
representatives. Some or all of the Underwriters in
any Offering may be included among the Selected
Dealers. The following provisions of this Agreement
shall apply separately to each Offering.
2. Conditions of Offering; Acceptance and Purchase.
Any Offering will be subject to delivery of the
Securities and their acceptance by us and any other
Underwriters, will be subject to prior sale, to the
approval of all legal matters by counsel and the
satisfaction of other conditions, and may be made on
the basis of a reservation of Securities or an
allotment against subscription. We reserve the right to
reject any acceptance in whole or in part, to make
allotments and to close the subscription books at any
time without notice. You agree to act as principal in
purchasing any Securities.
We shall invite you to participate in an Offering and
in connection therewith shall advise you of the
particular method and supplementary terms and
conditions of the Offering (including the amount of
Securities to be allotted to you, the amount of
Securities reserved for purchase by the Selected
Dealers, the period of such reservation and the
information as to prices and offering date referred to
in Section 3(c) hereof). Such invitation and
additional information, to the extent applicable and
then determined, shall be conveyed to you in a
telegram, telex, facsimile transmission or other
written form (electronic or otherwise) of communication
(any communication in any such form being herein
referred to as a "written communication"). Such
written communication will include instructions for
advising us of your acceptance of such invitation. Any
such additional information, to the extent applicable
but not determined at the time such invitation is
conveyed to you, will be conveyed to you in a
subsequent written communication. To the extent such
supplementary terms and conditions are inconsistent
with any provision herein, such terms and conditions
shall supersede any such provision, and you, by your
acceptance, shall be bound thereby. If we have
received your acceptance, a subsequent written
communication from us shall state that you may reject
your allotment of Securities by notifying us prior to
the time and in the manner specified in such written
communication. Unless otherwise indicated in any such
written communication, acceptances and other
communications by you with respect to an Offering
should be sent to LaSalle St. Securities, LLC, 000 Xxxx
Xxxxxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: __________.
Unless you are notified otherwise by us, Securities
purchased by you shall be paid for on such date as we
shall determine, on one day's prior notice to you, by
certified or official bank check or checks drawn on a
New York Clearing House bank and payable in next day
funds, in an amount equal to the Public Offering Price
as (hereinafter defined) or, if we shall so advise you,
at such Public Offering Price less the Concession (as
hereinafter defined), and payable to or upon the order
of LaSalle St. Securities, LLC, 000 Xxxx Xxxxxxxxxx
Xxxxxxxxx, Xxxxxxx, Xxxxxxxx 00000, against delivery of
the Securities. If Securities are purchased and paid
for at such Public Offering Price, such Concession will
be paid after the termination of the provisions of
Section 3(c) hereof with respect to such Securities.
Unless you are notified otherwise by us, payment for
and delivery of Securities purchased by you shall be
made through the facilities of The Depository Trust
Company, if you are a member, unless you have otherwise
notified us within two days after the date the
Securities are first released for public offering or,
if you are not a member, settlement may be made through
a correspondent who is a member pursuant to
instructions you may send to us on or before the third
business day preceding the closing for the sale of the
Securities.
3. Offering Documents.
(a) Registered Offerings. In the case of an Offering
of Securities registered under the Securities Act (a
"Registered Offering"), we shall provide you with such
number of copies of any prospectus subject to
completion (a "preliminary prospectus"), the prospectus
and any amendment or supplement to any of the foregoing
as you may reasonably request for the purposes
contemplated by the Securities Act and the Securities
Exchange Act of 1934, as amended (the "Exchange Act"),
and the applicable rules and regulations of the
Securities and Exchange Commission (the "Commission")
thereunder. You shall familiarize yourself with the
terms of the Securities and the other terms of the
Offering reflected in any such preliminary prospectus,
prospectus, amendment or supplement. You agree that in
purchasing Securities in a Registered Offering you will
rely upon no statements whatsoever, written or oral,
other than the statements in the prospectus delivered
to you by us. You understand that you will not be
authorized by the issuer or any seller other than the
issuer, any guarantor or any insurer of Securities to
give any information or to make any representation not
contained in a preliminary prospectus or the
prospectus, as amended or supplemented, in connection
with the Offering of such Securities. You represent and
warrant that you are familiar with Securities Act
Release No. 4968 and Rule 15c2-8 (or any successor
release or provision) under the Exchange Act and any
applicable foreign laws (and any applicable rules and
regulations thereunder) and agree that you will deliver
all preliminary prospectuses and prospectuses required
for compliance therewith. You agree to make a record
of your distribution of each preliminary prospectus and
prospectus (including dates, numbers of copies and
persons to whom sent) and you shall, if requested by
us, furnish a copy of an amended or supplemented
preliminary prospectus or prospectus to each person to
whom you have furnished a previous preliminary
prospectus or prospectus and, if also requested by us,
indicate to each such person the changes reflected in
such amended or supplemented preliminary prospectus or
prospectus.
(b) Non-Registered Offerings. In the case of an
Offering other than a Registered Offering, we shall
provide you with such number of copies of any
preliminary offering circular or other document
comparable to a preliminary prospectus in a Registered
Offering (a "preliminary offering circular") relating
to such Offering, a proof of an offering circular or
other document comparable to a prospectus in
a Registered Offering (an "offering circular") relating
to such Offering or such offering circular, as you may
reasonably request. You shall familiarize yourself
with the terms of the Securities and the other terms of
the Offering reflected in any such preliminary offering
circular, proof of an offering circular, offering
circular or any amendment or supplement to any of the
foregoing. You agree that in purchasing Securities
pursuant to an offering circular you will rely upon no
statements whatsoever, written or oral, other than the
statements in the offering circular delivered to you by
us. You understand that you will not be authorized by
the issuer or any seller other than the issuer, any
guarantor or any insurer of the Securities offered
pursuant to the offering circular to give any
information or to make any representation not contained
in a preliminary offering circular, a proof of an
offering circular or the offering circular, as amended
or supplemented, in connection with the sale of such
Securities. You agree that you will comply with the
applicable federal, state and foreign laws, and the
applicable rules and regulations of any regulatory body
promulgated under such laws, governing the use and
distribution of offering circulars by brokers or
dealers and, to the extent consistent with such laws,
rules and regulations, you agree that you will deliver
all preliminary offering circulars and offering
circulars that would be required if the provisions of
Rule 15c2-8 (or any successor provision) under the
Exchange Act applied to such Offering. You agree to
make a record of your distribution of each preliminary
offering circular, proof of an offering circular and
offering circular (including dates, numbers of copies
and persons to whom sent) and you shall, if requested
by us, furnish a copy of an amended or supplemented
preliminary offering circular, proof of an offering
circular or offering circular to each person to whom
you have furnished a previous preliminary offering
circular, proof of an offering circular or offering
circular and, if also requested by us, indicate to each
such person the changes reflected in such amended or
supplemented preliminary offering circular, proof of an
offering circular or offering circular.
(c) Offer and Sale to the Public. With respect to any
offering of Securities, we shall inform you by a
written communication of the initial public offering
price, if any, the selling concession to Selected
Dealers, the reallowance (if any) to other dealers and
the time when you may commence selling Securities to
the public. After such public offering has commenced,
we may change the public offering price, the selling
concession and the reallowance. The offering price,
selling concession and reallowance (if any) at any time
in effect with respect to an Offering are hereinafter
referred to, respectively, as the "Public Offering
Price", the "Concession" and the "Reallowance". With
respect to each Offering of Securities, until the
provisions of this Section 3(c) shall be terminated
pursuant to Section 4 hereof, you agree to offer
Securities to the public only at the Public Offering
Price, except that if a Reallowance is in effect, a
reallowance from the Public Offering Price not in
excess of such Reallowance may be allowed. If such
Offering is subject to the By-Laws, rules and
regulations of the National Association of Securities
Dealers, Inc. (the "NASD"), such Reallowance may be
allowed only as consideration for services rendered in
distribution to dealers who are actually engaged in the
investment banking or securities business, who execute
the written agreement prescribed by Section 24(c) of
Article III of the Rules of Fair Practice of the NASD
and who are either members in good standing of the NASD
or are foreign banks, dealers or institutions not
eligible for membership in the NASD who represent to
you that they will promptly reoffer such Securities at
the Public Offering Price and will abide by the
conditions with respect to foreign banks, dealers and
institutions set forth in Section 3(e) hereof. Upon
our request, you will advise us of the identity of any
dealer to whom you allowed a Reallowance and any
Underwriter or dealer from whom you received a
Reallowance.
In connection with any Offering involving the public
distribution of the Securities through two or more
underwriting syndicates, you agree to be bound by, and
all offers to sell and sales by you of Securities shall
be subject to, such limitations on offers to sell and
sales of Securities as we may advise you in a written
communication, and you agree that any sales made by you
to other dealers shall be made only to such dealers as
agree, in their offers to sell and sales, to be bound
by the same limitations.
(d) Over-allotment; Stabilization; Unsold Allotments.
We may, with respect to any Offering, be authorized (i)
to over-allot in arranging for sales of Securities to
Selected Dealers and to institutions and other retail
purchasers and, if necessary, to purchase Securities or
other securities of the issuer at such prices as we may
determine for the purpose of covering such over-
allotments and (ii) for the purpose of stabilizing the
market in the Securities, to make purchases and sales
of Securities or of any other securities of the issuer
or any guarantor or insurer of the Securities as we may
advise you by written communication or otherwise, in
the open market or otherwise, for long or short
account, on a when-issued basis or otherwise, at such
prices, in such amounts and in such manner as we may
determine. You agree that upon our request at any time
and from time to time prior to the termination of the
provisions of Section 3(c) 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
Public Offering Price less an amount to be determined
by us not in excess of the Concession. If, prior to the
later of (i) the termination of the provisions of
Section 3(c) hereof with respect to any Offering or
(ii) the covering by us of any short position created
by us in connection with such Offering for our account
or the account of one or more Underwriters, we purchase
or contract to purchase for our account or the account
of one or more Underwriters in the open market or
otherwise any Securities purchased by you under this
Agreement as part of such Offering, you agree to pay us
on demand an amount equal to the Concession with
respect to such Securities (unless you shall have
purchased such Securities pursuant to Section 2 hereof
at the Public Offering Price, in which case we shall
not be obligated to pay such Concession to you pursuant
to Section 2), plus, in each case, transfer taxes,
broker's commissions or dealer's xxxx-ups, if any, and
accrued interest, amortization of original issue
discount or accumulated dividends, if any, paid in
connection with such purchase or contract to purchase.
(e) NASD. The provisions of this Section 3(e) shall
apply to any Offering subject to the By-Laws, rules and
regulations of the NASD.
You represent and warrant that you are a dealer
actually engaged in the investment banking or
securities business and you are either a member in good
standing of the NASD or, if you are not such a member,
you are a foreign bank, dealer or institution not
eligible for membership in the NASD which agrees to
make no sales within the United States of America, its
territories or possessions or to persons who are
citizens thereof or residents therein (other than
through us) and to comply with all applicable rules of
the NASD, including the NASD's Interpretation with
Respect to Free-Riding and Withholding, in making sales
outside the United States of America. You agree that,
in connection with any purchase or sale of any of the
Securities wherein a selling concession, discount or
other allowance is received or granted, (i) you will
comply with the provisions of Section 24 of Article III
of the NASD's Rules of Fair Practice and (ii) if you
are a non-NASD member broker or dealer in a foreign
country, you will also comply, (A) as though you were
an NASD member, with the provisions of Sections 8 and
36 thereof and (B) with Section 25 thereof as that
section applies to a non-NASD member broker or dealer
in a foreign country. You represent that you are fully
familiar with the above provisions of the Rules of Fair
Practice of the NASD.
You represent, by your participation in an Offering,
that neither you nor any of your directors, officers,
partners or "persons associated with" you (as defined
in the By-Laws of the NASD, which definition includes
counsel, financial consultants and advisors, finders,
members of the selling or distribution group, and any
other persons associated with or related to any of the
foregoing) or any broker-dealer (i) within the last
eighteen months has purchased in private transactions,
or intends before, at or within six months after the
commencement of the public offering of the Securities,
to purchase in private transactions, any securities
(including warrants or options) of the issuer, its
parent (if any), any guarantor or insurer of the
Securities or any subsidiary of any of the foregoing or
(ii) within the last twelve months
had any dealings with the issuer, any guarantor or insurer
of the Securities, any seller other than the foregoing or any
subsidiary or controlling person of any of the
foregoing (other than in connection with the syndicate
agreements relating to such Offering) as to which
documents or information are required to be filed with
the NASD pursuant to its interpretation with Respect to
Review of Corporate Financing.
If we inform you that the NASD views the Offering as
subject to Schedule E to the By-Laws of the NASD, you
agree that you shall, to the extent required, offer the
Securities in compliance with such Schedule and the
NASD's interpretation thereof.
If we inform you that the NASD views the Securities as
interests in a direct participation program, you agree
that you shall, to the extent required, offer the
Securities in compliance with the NASD's interpretation
of Appendix F of its Rules of Fair Practice.
(f) Relationship among Underwriters and Selected
Dealers. We shall have full authority to take such
action as we may deem advisable in respect of all
matters pertaining to an Offering. We may buy
Securities from or sell Securities to any Underwriter
or Selected Dealer and, with our consent, the
Underwriters (if any) and the Selected Dealers may
purchase Securities from and sell Securities to each
other at the Public Offering Price less all or any part
of the Concession. You are not authorized to act as
agent for us or any Underwriter or the issuer, any
seller other than the issuer, or any guarantor or
insurer of any Securities in offering Securities to the
public or otherwise.
Neither we nor any Underwriter shall be under any
obligation to you except for obligations assumed hereby
or in any written communication for us to you in
connection with any Offering. Furthermore, neither we
nor any Underwriter shall be under any liability for or
in respect of the validity, value or delivery of or
title to, any Securities or any securities issuable
upon exercise, conversion or exchange of any
Securities; the form of, or the statements contained
in, or the validity of, in the case of a Registered
Offering, the registration statement, any preliminary
prospectus, the prospectus, any amendment or supplement
to any of the foregoing or any materials incorporated
by reference in any of the foregoing or, in the case of
an Offering other than a Registered Offering, any
preliminary offering circular, any proof of an offering
circular, any offering circular, any amendment or
supplement to any of the foregoing or any materials
incorporated by reference in any of the foregoing or,
in either case, any letters or instruments executed by
or on behalf of the issuer, any seller other than the
issuer, any guarantor or insurer of the Securities or
any other party; the form or validity of any contract
or agreement under which any Securities may be issued
or which governs the rights of holders of any
securities; the form or validity of any agreement for
the purchase of the Securities, any agreement among
underwriters or any agreements between or among
underwriting syndicates; the performance by the issuer,
any seller other than the issuer, any guarantor or
insurer of the Securities and any other parties of any
agreement on its or their parts; the qualification for
sale in any jurisdiction of any Securities or
securities issuable upon exercise, conversion or
exchange of any Securities or the legality for
investment of the Securities or such securities under
the laws of any jurisdiction; or any matter in
connection will any of the foregoing; provided,
however, that nothing in this paragraph shall be deemed
to relieve us or any Underwriter from any liability
imposed by the Securities Act.
Nothing contained here or in any written communication
from us shall constitute the Selected Dealers an
association or partners with us or any Underwriter or
with one another or, in the case of an Offering
involving the public distribution of the Securities
through two or more underwriting syndicates, with any
underwriter or manager participating in any such
syndicate. If the Selected Dealers, among themselves or
with the Underwriters and/or such other underwriters or
managers, 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 that
election. You authorize us, in our discretion, to
execute and file on your
behalf such evidence of that election as may be required by the
Internal Revenue Service. In connection with any Offering you
shall be liable for your proportionate 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 and/or such other underwriters or
managers, if any, 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 any expense incurred in defending against any
such tax, claim, demand or liability.
(g) Legal Qualifications. It is understood that
neither we nor any Underwriter assumes any
responsibility with respect to the right of any
Selected Dealer to offer or to sell Securities in any
jurisdiction, notwithstanding any "Blue Sky" memorandum
or survey or any other information that we or any other
Underwriter may furnish as to the jurisdictions under
the securities laws of which it is believed the
Securities may be sold.
If you propose to offer Securities outside of the
United States of America, its territories or its
possessions, you will take, at your own expense and
risk, such action, if any, as may be necessary to
comply with the laws of each foreign jurisdiction in
which you propose to offer Securities.
(h) Compliance with Law. You agree that in selling
Securities pursuant to any Offering (which agreement
shall also be for the benefit of the issuer, any seller
other than the issuer and any guarantor or insurer of
such Securities) you will comply with the applicable
provisions of the Securities Act and the Exchange Act,
the applicable rules and regulations of the Commission
thereunder, the applicable rules and regulations of the
NASD, the applicable rules and regulations of any
securities exchange or other self-regulatory
organization having jurisdiction over the Offering and
the applicable federal, state or foreign laws, rules
and regulations specified in Section 3 hereof.
4. Termination. This Agreement may be terminated by
either party hereto upon five business days' written
notice to the other party; provided, however, that with
respect to any Offering, if we receive any such notice
from you after you have agreed to participate as a
Selected Dealer in any Offering, this Agreement shall
remain in full force and effect as to such Offering and
shall terminate with respect to such Offering in
accordance with the provisions of the following
paragraph.
Unless this Agreement or any provision hereof is
earlier terminated by us, and except as we may advise
you in a written communication, the terms and
conditions of this Agreement will cease to be
applicable to your participation in an Offering at the
close of business of the forty-fifth day after the date
the Securities are first released for public offering,
but in our discretion may be extended by us by written
communication for a further period or periods not
exceeding an aggregate of forty-five days; provided,
however, that the provisions of this Agreement that
contemplate obligations surviving the termination of
its effectiveness shall survive such termination with
respect to any Offering.
5. Amendments. This Agreement may be amended or
supplemented by us by written notice to you and without
need for further action on your part and, except for
amendments or supplements set forth in a written
communication to you relating solely to a particular
Offering, any such amendment or supplement to this
Agreement shall be effective with respect to any
Offering effected after this Agreement is so amended or
supplemented. Each reference herein to "this
Agreement" shall, as appropriate, be to this Master
Selected Dealer Agreement as so amended or
supplemented.
6. Successors and Assigns. This Agreement shall be
binding on, and inure to the benefit of, the parties
hereto and the other persons specified in Sections 1
and 3 hereof, and the respective successors and assigns
of each of them.
7. APPLICABLE LAW. THIS AGREEMENT AND THE TERMS AND
CONDITIONS SET FORTH HEREIN WITH RESPECT TO ANY
OFFERING, TOGETHER WITH SUCH SUPPLEMENTARY TERMS AND
CONDITIONS WITH RESPECT TO SUCH OFFERING AS MAY BE
CONTAINED IN ANY WRITTEN COMMUNICATION TO YOU IN
CONNECTION THEREWITH, SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
ILLINOIS.
8. Notices. Any notice from us to you shall be
deemed to have been duly given if conveyed to you by
written communication or telephone at the address set
forth at the end of this Agreement, or at such other
address as you shall have advised us in writing. Any
notice from you to us shall be deemed to have been duly
given if conveyed to us by written communication or
telephone at LaSalle St. Securities, LLC, 000 Xxxx
Xxxxxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxxxxx 00000,
Attention: __________.
Please confirm, by signing and returning this
Agreement to us, your acceptance of any agreement to
the terms and conditions of this Agreement (as amended
and supplemented from time to time pursuant to Section
5 hereof), together with and subject to any
supplementary or alternative terms and conditions
contained in any written communication from us in
connection with any Offering, all of which shall
constitute a binding agreement between you and us,
individually or as representative of any Underwriters.
Your subscription to, or your acceptance of any
reservation of, any Securities pursuant to an Offering
shall constitute (i) confirmation that your
representations and warranties set forth in this
Agreement are true and correct as of the times or for
the periods specified herein, (ii) confirmation that
your agreements set forth in this Agreement have been
and will be performed by you to the extent and at the
times required hereby and (iii) acknowledgment that you
have requested and received from us sufficient copies
of the prospectus or offering circular, as the case may
be, with respect to such Offering in order to comply
with your undertakings in Section 3(a) or 3(b) hereof.
Very truly yours,
LASALLE ST. SECURITIES, LLC
By:_________________________
CONFIRMED as of the date first written above:
_______________________________
(Name of Dealer)
By:___________________________
Title*:_______________________
Address:______________________
______________________
__________________
*If signer is not an officer or partner, please attach
evidence of authorization.
