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, Inc., ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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 ▇▇▇▇-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, Inc., ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, 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, INC.
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.