Exhibit (h)(2)
RBC CAPITAL MARKETS CORPORATION
MASTER SELECTED DEALERS AGREEMENT
July 1, 2004
RBC Capital Markets Corporation
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Gentlemen:
1. General. We understand that RBC Capital Markets Corporation 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 RBC Capital Markets Corporation 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 "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",
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.
(b) We agree that in purchasing Securities we will rely upon no statement
whatsoever, written or oral, other than the statements in the Prospectus
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 to each person to whom we have
furnished a previous preliminary or final Prospectus. 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), 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 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 45th 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
Underwriting 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 RBC Capital Markets
Corporation 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:
RBC Capital Markets Corporation
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Attn: Syndicate Department
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(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, 2750 and 2790 of the NASD's Conduct Rules. 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,
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(Name of Firm)
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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Fax:
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Confirmed, as of the date first above written
RBC CAPITAL MARKETS CORPORATION
By
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▇▇▇ ▇▇▇▇▇, Managing Director
