EXHIBIT 2(H)(2)
FORM OF MASTER SELECTED DEALERS AGREEMENT
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
1. GENERAL. We understand that U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
("U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇") is entering into this Master Selected Dealers
Agreement ("Agreement") in counterparts with us and other firms who may
participate as dealers in offerings of securities in which U.S. Bancorp ▇▇▇▇▇
▇▇▇▇▇▇▇ is acting as representative ("Representative") of the underwriters
comprising the underwriting syndicate or as one of the Representatives of the
underwriters. Whether or not we have executed this Agreement, this Agreement
shall apply to any offering of securities in which we act as a Selected Dealer
(as defined below).
At or before the time of an offering, you will advise us, to
the extent applicable, of the expected offering date, the expected closing date,
the initial public offering price, the interest or dividend rate (or the method
by which such rate is to be determined), the conversion price (if applicable),
the selling concession, the reallowance, the time of release of securities for
sale to the public, the time at which subscription books will be opened, the
amount, if any, of securities reserved for purchase by Selected Dealers, the
period of such reservation and the amount of securities to be allotted to us.
Such information shall be deemed to be a part of this Agreement and this
Agreement shall become binding with respect to our participation as a Selected
Dealer in an offering of securities following our receipt of such information.
If we have not previously executed this Agreement, by our purchase of securities
in an offering covered by this Agreement, we shall be deemed to be signatories
of this Agreement with respect to such offering.
The securities to be purchased in any offering of securities
in which we agree to participate as a Selected Dealer pursuant to this
Agreement, including any guarantees relating to such securities or any other
securities into which such securities are convertible or for which securities
are exercisable or exchangeable and any securities that may be purchased upon
exercise of an over-allotment option, are hereinafter referred to as the
"Securities." The issuer or issuers of the Securities are hereinafter referred
to as the "Issuer." The parties on whose behalf the Representatives execute the
underwriting or purchase agreement or any associated terms or similar agreement
with the Issuer or any selling security holders (each a "Seller") or any
amendment or supplement thereto (collectively, the "Underwriting Agreement")
with respect to an offering of Securities in which we agree to participate as a
Selected Dealer pursuant to this Agreement are hereinafter referred to as the
"Underwriters." The parties who agree to participate in such offering as
selected dealers are hereinafter referred to as "Selected Dealers."
References herein to statutory sections, rules, regulations, forms and
interpretive materials shall be deemed to include any successor provisions.
The following provisions of this Agreement shall apply separately to
each offering of Securities.
2. ACCEPTANCE AND PURCHASE. The offer to Selected Dealers will
be made on the basis of a reservation of Securities and an allotment against
subscriptions. Any application for additional Securities will be subject to
rejection in whole or in part. Subscription books may be closed by the
Representatives at any time in the Representatives' discretion without notice
and the right is reserved to reject any subscription in whole or in part. We
agree to purchase as principal the amount of Securities allotted to us by the
Representatives.
3. OFFERING MATERIALS.
(a) We understand that if registration of the offer and sale
of the Securities as contemplated by the Underwriting Agreement is
required under the Securities Act of 1933, as amended (the "Securities
Act"), the Representatives will, at our request, make available to us,
as soon as practicable after sufficient quantities thereof are made
available to them by the Issuer, copies of the prospectus or
supplemental prospectus (excluding any documents incorporated by
reference therein) to be used in connection with the offering of the
Securities in such number as we may reasonably request. As used herein,
"Prospectus" means the form of prospectus (including any supplements
and any documents incorporated by reference therein) authorized for use
in connection with such offering.
(b) We understand that if the offer and sale of the Securities
are exempt from the registration requirements of the Securities Act, no
registration statement will be filed with the Securities and Exchange
Commission (the "Commission"). In such case, the Representatives will,
at our request, make available to us, as soon as practicable after
sufficient quantities thereof are made available to them by the Issuer,
copies in such number as we may reasonably request of any final
offering circular or other offering materials to be used in connection
with the offering of the Securities. As used herein, "Offering
Circular" means the offering circular or other offering materials, as
it or they may be amended or supplemented, authorized for use in
connection with such offering. The Prospectus or Offering Circular, as
the case may be, relating to an offering of Securities is herein
referred to as the "Offering Document."
(c) We agree that in purchasing Securities we will rely upon
no statement whatsoever, written or oral, other than the statements in
the Offering Document delivered to us by the Representatives and any
documents incorporated by reference therein. We understand that we are
not authorized to give any information or make any representation not
contained in the Offering Document or in any document incorporated by
reference therein, in connection with the offering of the Securities.
We agree that, if requested by the Representatives, we will furnish a
copy of any amendment or supplement to any preliminary or final
Offering Document to each person to whom we have furnished a previous
preliminary or final Offering Document. Our purchase of Securities
registered
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under the Securities Act shall constitute our confirmation that we have
delivered, and our agreement that we will deliver, all preliminary and
final Prospectuses required for compliance with Rule 15c2-8 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). Our
purchase of Securities exempt from registration under the Securities
Act shall constitute (i) our confirmation that we have delivered, and
our agreement that we will deliver, all preliminary and final Offering
Circulars required for compliance with the applicable Federal and state
laws and the applicable rules and regulations of any regulatory body
promulgated thereunder or the rules of any self-regulatory organization
governing the use and distribution of offering circulars by
underwriters, and (ii) to the extent consistent with such laws, rules
and regulations, our confirmation that we have delivered and our
agreement that we will deliver all preliminary and final Offering
Circulars that would be required if Rule 15c2-8 under the Exchange Act
applied to such offering.
4. OFFERING OF THE SECURITIES.
(a) The offering of the Securities is made subject to the
conditions referred to in the Offering Document and to the terms and
conditions set forth in this Agreement. After the public offering of
the Securities has commenced, you may change the public offering price,
the selling concession and the reallowance to dealers. Any of the
Securities purchased by us pursuant to this Agreement are to be
reoffered by us, subject to their receipt and acceptance by the
Representatives, to the public at the initial public offering price,
subject to the terms of this Agreement and the Offering Document.
Except as otherwise provided herein, the Securities shall not be
offered or sold by us below the initial public offering price before
the termination of the effectiveness of this Agreement with respect to
the offering of such Securities, except that a reallowance from the
initial public offering price of not in excess of the amount set forth
in the Invitation may be allowed to any Selected Dealer that (i) agrees
that such amount is to be retained and not reallowed in whole or in
part and (ii) makes the representations contained in Section 14.
(b) The Representatives as such and, with the Representative's
consent, any Underwriter may buy Securities from, or sell Securities
to, any of the Selected Dealers or any of the Underwriters, and any
Selected Dealer may buy Securities from, or sell Securities to, any
other Selected Dealer or any Underwriter, at the initial public
offering price less all or any part of the concession to Selected
Dealers.
(c) No expenses shall be charged to Selected Dealers. A single
transfer tax upon the sale of the Securities by the respective
Underwriters to us will be paid by such Underwriters when such
Securities are delivered to us. However, we shall pay any transfer tax
on sales of Securities by us and shall pay our proportionate share of
any transfer tax or other tax (other than the single transfer tax
described above) in the event that any such tax shall from time to time
be assessed against us and other Selected Dealers as a group or
otherwise.
5. STABILIZATION AND OVER-ALLOTMENT. The Representatives may,
with respect to any offering of Securities, be authorized to over-allot,
purchase and sell Securities for
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long or short account and to stabilize or maintain the market price of the
Securities. We agree that, upon the Representatives' request at any time and
from time to time before termination of the effectiveness of this Agreement with
respect to an offering of Securities, we will report the amount of Securities
purchased by us pursuant to such offering which then remain unsold by us and
will, upon the Representatives' request at any such time, sell to the
Representatives for the account of one or more Underwriters such amount of such
unsold Securities as the Representatives may designate at the initial public
offering priceless an amount to be determined by the Representatives not in
excess of the Selected Dealers' concession.
6. NET CAPITAL. We represent that the incurrence by us of our
obligations hereunder in connection with the offering of the Securities will not
place us in violation of Rule 15c3-1 under the Exchange Act, or of any similar
provisions of any applicable rules or regulations of any other regulatory
authority or self-regulatory organization.
7. REPURCHASE OF SECURITIES NOT EFFECTIVELY PLACED. In
recognition of the importance of distributing the Securities to bona fide
investors, we agree that if prior to the later of (a) the completion of the
distribution of the Securities covered by this Agreement or (b) the covering by
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ (acting as a Representative of the Underwriters) of
any short position created by the Representatives for the accounts of the
underwriters, U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ purchases or contracts to purchase in
the open market or otherwise any of the Securities delivered to any Selected
Dealer, the Selected Dealer agrees to repay to U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ for
the accounts of the Underwriters the amount of the selling concession allowed to
such Dealer plus brokerage commission or dealer's ▇▇▇▇-up and any transfer taxes
paid in connection with such purchase.
8. PAYMENT AND DELIVERY. We agree that Securities purchased by
us pursuant to this Agreement shall be paid for in an amount equal to the
initial public offering price therefor, or, if the Representatives shall so
advise us, at such initial public offering price less the Selected Dealers'
concession with respect thereto, at or before 9:00 a.m. Minneapolis time, on the
date on which the Underwriters are required to purchase the Securities, by
delivery to the Representatives at the office of U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ (or
at such other place as you may advise), of payment by certified or bank
cashier's check payable in Minneapolis Clear House or other next day funds (or
such other funds as you may advise) payable to the order of U.S. Bancorp ▇▇▇▇▇
▇▇▇▇▇▇▇ Inc. If payment is made for Securities purchased by us at the initial
public offering price, the Selected Dealers' concession to which we may be
entitled will be paid to us upon termination of the effectiveness of this
Agreement with respect to the offering of such Securities.
Notwithstanding the foregoing provision of this Section, if
transactions in the Securities can be settled through the facilities of The
Depository Trust Company or any other depository or similar facility, if we are
a member, you are authorized, in your discretion, to make appropriate
arrangements for payment and/or delivery through its facilities of the
Securities to be purchased by us, or, if we are not a member, settlement may be
made through a correspondent that is a member pursuant to our timely
instructions.
9. BLUE SKY AND OTHER QUALIFICATIONS. It is understood and
agreed that the Representatives assume no responsibility or obligation with
respect to the right of any Selected
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Dealer or other person to sell the Securities in any jurisdiction,
notwithstanding any information the Representatives may furnish in that
connection.
10. TERMINATION.
(a) This Agreement may be terminated by either party hereto
upon five business days' written notice to the other party; provided,
however, that any notice received after this Agreement shall have
become effective (as provided in Section 1. of this Agreement) with
respect to any offering of Securities and shall terminate with respect
to such offering and all previous offerings in accordance with the
provisions of paragraph (b) of this Section.
(b) With respect to each offering of Securities pursuant to
this Agreement, this Agreement shall terminate 45 full days after the
initial public offering date of the Securities, or at such earlier date
as you may determine in your discretion, or may be extended by you, in
your discretion, for an additional period or periods not exceeding an
aggregate of 45 days for each offering, except as otherwise provided
herein, and no obligations on the part of the Representatives will be
implied hereby or inferred herefrom.
(c) We understand and agree that we are to act as principal in
purchasing Securities and we are not authorized to act as agent for the
Issuer, any Seller or any Underwriter in offering the Securities to the
public or otherwise.
(d) Nothing herein contained shall constitute us an
association, or partners, with the other Selected Dealers, the
Underwriters or Representatives, or, except as otherwise provided
herein, render us liable for the obligations of any other Selected
Dealers, the Underwriters or the Representatives. If the Selected
Dealers among themselves or with the Underwriters or the
Representatives are deemed to constitute a partnership for Federal
income tax purposes, then each Selected Dealer elects to be excluded
from the application of Subchapter K, Chapter 1, Subtitle A, of the
Internal Revenue Code of 1986, as amended, and agrees not to take any
position inconsistent with such election. The Representatives are
authorized, in their discretion, to execute on behalf of the Selected
Dealer such evidence of such election as may be required by the
Internal Revenue Service.
11. AMENDMENT. This Agreement may be supplemented or amended
by you by notice to us by written communication and, except for supplements or
amendments included with the information relating to a particular offering of
Securities, any such supplement or amendment to this Agreement shall be
effective with respect to any offering to which this Agreement applies after the
date of such supplement or amendment. Each reference to "this Agreement" herein
shall, as appropriate, be to this Agreement as so supplemented and amended.
12. NOTICES. Any notices from the Representatives to us shall
be deemed to have been duly given if mailed, hand-delivered, telephoned (and
confirmed in writing), telegraphed, telexed, telecopied or communicated by
Graphic Scanning (or similar means of communication) to us at the address set
forth at the end of this Agreement, or at such other
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address, telephone, telecopy, fax or telex as we shall have advised you in
writing. Any notice from us to the Representatives shall be deemed to have been
duly given if mailed, hand-delivered, telephoned (and confirmed in writing),
telegraphed, telexed, telecopied, faxed or communicated by Graphic Scanning (or
similar means of communication) to:
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
▇▇▇▇▇ ▇▇▇▇▇▇▇ Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Corporate Syndicate Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy/Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Telex: 201-675
(or to such other address, telephone, telecopy, fax or telex as we shall be
notified by the Representatives). Communications by telegram, telex, telecopy,
Graphic Scanning or other written form shall be deemed to be "written"
communications.
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13. NASD MATTERS. We represent that we are either (a) a member
in good standing of the NASD who agrees to comply with all applicable rules of
the NASD, including without limitation, the NASD's Interpretation with Respect
to Fee-Riding and Withholding (IM-2110-1) and NASD Rules 2730, 2740 and 2750, or
(b) a foreign bank or dealer not eligible for membership in the NASD who hereby
agrees to make no sales within the United States, its territories or its
possessions nor to persons who are citizens thereof or residents therein, and in
making the sales to comply with the above-mentioned NASD Interpretation
(IM-2110-1) and NASD Rules 2730, 2740 and 2750 as if we were an NASD member and
to comply with Rule 2420 as that section applies to a nonmember foreign dealer.
We confirm that we are familiar with NASD Rule IM-2110-1, and we agree to comply
with Rule IM-2110-1 in offering and selling Securities to the public. By our
participation in an offering of Securities, we further represent that neither we
nor any of our directors, officers, partners or "persons associated with" us (as
defined in the NASD's rules), nor, to our knowledge any "related person" (as
defined in NASD Rule 2710), have participated or intend to participate in any
transaction or dealing as to which documents or information are required to be
filed with the NASD pursuant to Rule 2710.
14. COMPLIANCE WITH APPLICABLE LAW, RULES AND REGULATIONS. We
agree that in selling Securities pursuant to any offering (which agreement shall
also be for the benefit of the Issuer or other Seller of such Securities) we
will comply with all applicable laws, rules and regulations, including 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 or any securities exchange having jurisdiction over the
offering, and in the case of an offering referred to in Section 3(b) hereof, the
applicable law, rules and regulations of any applicable regulatory body.
15. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the law of the State of Minnesota.
Please confirm this Agreement and deliver a copy to us.
Very truly yours,
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(Name of Dealer)
By:
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Print Name:
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Title:
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Address:
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Telephone:
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Telecopy/Fax:
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Telex:
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Confirmed as of the date first above written:
U.S. Bancorp ▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc.
By:
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Its:
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