FERRIS, BAKER WATTS, INCORPORATED MASTER SELECTED DEALERS AGREEMENT
EXHIBIT
1.2
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, INCORPORATED
DATE
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, Incorporated
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇,
D. C. 20006
Gentlemen:
1. General.
We
understand that ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Incorporated is entering into this Master
Selected Dealers Agreement ("Agreement") in counterparts with us and other
firms
who may participate as dealers in public offerings of securities pursuant to
a
registration statement filed under the Securities Act of 1933, as amended (the
"Act") in which ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Incorporated 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.
At
or
prior to the time of an offering, you will advise us by one or more telegrams,
telexes, graphic scanning communications or other form of written communication
(such communications received by us with respect to an offering are hereinafter
collectively referred to as the "Invitation"), to the extent applicable, as
to
the expected offering date, the expected closing date, the initial public
offering price, the interest or dividend rate, if any, 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 and the amount of securities to be allotted to us, and stating that
our
participation as a selected dealer in the offering shall be subject to the
provisions of this Agreement. 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 your
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 hereof 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 such 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 or any amendment or supplement thereto
(collectively, the "Purchase 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," and the
parties who agree to participate in such offering as selected dealers are
hereinafter referred to as "Selected Dealers."
The
following provisions of this Agreement shall apply separately to each individual
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)
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 supplemented 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
or
term sheet and any documents incorporated by reference therein) authorized
for
use in connection with such offering. With respect to Securities for which
no
Registration Statement is filed with the Securities Exchange Commission; you
will furnish to us, to the extent made available to you by the Issuer, copies
of
any offering circular or other offering materials to be used in connection
with
the offering of the Securities and of each amendment thereto (the “Offering
Circular”).
(b) We
agree
that in purchasing Securities we will rely upon no statement whatsoever, written
or oral, other than the statements in the Prospectus or Offering Circular
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 Prospectus or in
any
document incorporated by reference therein, in connection with the offering
of
the Securities. Our purchase of Securities shall constitute our agreement that,
if requested by the Representatives, we will furnish a copy of any amendment
or
supplement to any preliminary or final Prospectus or Offering Circular to each
person to whom we have furnished a previous preliminary or final Prospectus
or
Offering Circular. Our purchase of Securities registered under the 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 (or any successor provision) under the Securities Exchange
Act
of 1934, as amended (the "Exchange Act"). We agree to keep an accurate record
of
the distribution (including dates and number of copies) by us of the Prospectus
or any preliminary prospectus (or any amendment, supplement or term sheet to
any
thereof) or Offering Circulars, and promptly upon request by you, to bring
all
subsequent changes to the attention of anyone to whom such materials shall
have
been distributed.
4. Offering
of the Securities. (a)
The
offering of the Securities is made subject to the conditions referred to in
the
Prospectus or Offering Circular 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 Prospectus. 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 13
hereof.
(b)
The
Representatives as such and, with the Representatives' 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) If
we
have received or been credited with the Selected Dealers' concession as to
any
Securities purchased by us pursuant to this Agreement, which, prior to the
later
of (i) the termination of the effectiveness of this Agreement with respect
to
the offering of such Securities and (ii) the covering by the Representatives
of
any short position created by the Representatives in connection with the
offering of such Securities, the Representatives may have purchased or
contracted to purchase for the account of any Underwriter (whether such
Securities have been sold or loaned by us), then we agree to pay the
Representatives on demand for the accounts of the several Underwriters an amount
equal to the Selected Dealers' concession and, in addition, the Representatives
may charge us with any broker's commission and transfer tax paid in connection
with such purchase or contract to purchase. Securities delivered on such
repurchases need not be the identical Securities originally purchased. With
respect to any such repurchased Securities as to which we have not yet received
or been credited with the Selected Dealers' concession, we shall be responsible
for any such broker's commission and transfer tax and the Representatives shall
not be obligated to pay any Selected Dealers' concession as to such
Securities.
(d) 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, to purchase and sell Securities for 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 prior to the
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 price less an
amount to be determined by the Representatives not in excess of the Selected
Dealers' concession.
6. Open
Market Transactions. We
agree
not to bid for, purchase, attempt to induce others to purchase, or sell,
directly or indirectly any Securities, any other securities of the Issuer of
the
same class and series as the Securities and any other securities of the Issuer
which the Representatives may designate, except as brokers pursuant to
unsolicited orders and as otherwise provided in this Agreement. If the
Securities are or include common stock or securities convertible into common
stock, we also agree not to effect or attempt to induce others to effect,
directly or indirectly, any transactions in or relating to put or call options
on any stock of the Issuer, except to the extent permitted by Regulation M
under
the Exchange Act as interpreted by the Commission. We represent that we have
at
all times complied with and will at all times comply with the provisions of
Regulation M under the Exchange Act applicable to any offering of
Securities.
7. Net
Capital. We
represent that the incurrence by us of our obligations hereunder in connection
with the offering of the Securities will not result in a violation of Rule
15c3-1 under the Exchange Act, or of any similar provision of any applicable
rules of any securities exchange to which we are subject or of any restriction
imposed on us by any such exchange or any governmental authority.
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. Such payment shall be
made in the form and at the time and places as may be specified by the
Representatives. 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 provisions 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 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 Dealer or other person
to
sell the Securities in any jurisdiction, notwithstanding any information the
Representatives may furnish in that connection.
10. Termination,
Amendment.
(a) The
terms and conditions set forth in (i) Section 4 hereof, (ii) the second sentence
of Section 5 hereof and (iii) Section 6 of this Agreement hereof (collectively,
the "offering provisions”) will terminate with respect to each offering of
Securities pursuant to this Agreement at the close of business on the 30th
day
after the date of the initial public offering of such Securities or at the
close
of business on the day of the closing of the purchase of the Securities by
the
Underwriters pursuant to the Purchase Agreement, whichever is later, unless
in
either such case the effectiveness of such offering provisions is extended
or
sooner terminated as hereinafter provided. You may extend the effectiveness
of
such offering provisions up to an additional 15 days by notice to us to the
effect that the offering provisions of this Agreement are extended to the date
or by the number of days indicated in the notice. You may terminate such
offering provisions other than Section 4(c) hereof at any time by notice to
us
to the effect that the offering provisions of this Agreement are terminated
and
you may terminate the provisions of Section 4(c) hereof at any time at or
subsequent to the termination of the other offering provisions by notice to
us
to the effect that the penalty bid provisions of this Agreement are terminated.
All other provisions of the Agreement shall remain operative and in full force
and effect with respect to such offering.
(b) 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
particular offering of Securities, if you receive any such notice from us after
you have advised us of the amount of securities allotted to us, this Agreement
shall remain in full force and effect as to such offering and shall terminate
with respect to such offering and all previous offerings only in accordance
with
and to the extent provided in subsection (a) of this Section.
(c) 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.
11. Role
of the Representatives; Role of the Selected Dealers; Legal Responsibility.
(a)
The
Representatives are acting as representatives of each of the Underwriters in
all
matters connected with the offering of the Securities and with the Underwriters'
purchases of the Securities. Any action to be taken, authority that may be
exercised or determination to be made by the Representatives hereunder may
be
taken, exercised or made by ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Incorporated on behalf of
all
Representatives. The rights and liabilities of each Underwriter of Securities
and each Selected Dealer shall be several and not joint.
(b) The
Representatives, as such, shall have full authority to take such action as
they
may deem advisable in all matters pertaining to the offering of the Securities
or arising under this Agreement. The Representatives will have no liability
to
any Selected Dealer for any act or omission except for obligations expressly
assumed by the Representatives 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 selling security
holder or any of the Underwriters 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.
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 to us at the address
set
forth at the foot of this Agreement, or at such other address 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 or communicated by
graphic scanning to:
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, Incorporated
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attn: Syndicate
Department
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
Telecopy:
(▇▇▇) ▇▇▇-▇▇▇▇
(or
to
such other address, telephone, telecopy 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.
13. NASD
Matters. We
represent that we are actually engaged in the investment banking or securities
business and are either (a) a member in good standing of the NASD or (b) a
foreign broker, dealer or other institution not eligible for membership in
the
NASD. If we are such a member we agree that in making sales of securities we
will comply with all applicable rules of the NASD, including, without
limitation, Rule 2740 of the NASD’s Conduct Rules. If
we are
not an NASD member, we agree to comply as though we were a member with Rules
2730, 2740 and 2750 of the NASD’s Conduct Rules and
to
comply with the requirements of the NASD’s Interpretation on Free-Riding and
Withholding. If we are such a foreign broker, dealer or other institution,
we
agree not to offer or sell any Securities in the United States of America except
through the Representatives and in making sales of Securities we agree to comply
with Rule 2420 of the NASD’s Conduct Rules as it applies to a nonmember broker
or dealer in a foreign country. We agree that in selling Securities pursuant
to
any offering (which agreement shall also be for the benefit of the Issuer or
other sellers of such Securities) we will comply with all applicable laws,
rules
and regulations, including the applicable provisions of the Act and the Exchange
Act, the applicable rules and regulations of the Commission thereunder, the
applicable rules and regulations of any securities exchange having jurisdiction
over the offering and in the case of an offering referred to in Section 3(b)
hereof, the applicable laws, rules and regulations of any applicable regulatory
body.
14. Governing
Law. This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of New York.
Very
truly yours,
____________________________________
(Name
of
Firm)
By:
___________________________________________
Print
Name: _____________________________________
Title:
__________________________________________
Address:
_______________________________________
Telephone:
_____________________________________
Fax:
__________________________________________
Confirmed,
as of the date first above written
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, INCORPORATED
By
____________________________