Exhibit 2(h)(2)
NEW COLONY EQUITY INCOME FUND
MINIMUM OF $20,000,000 UNITS OF BENEFICIAL INTEREST
AND
MAXIMUM OF $75,000,000 UNITS OF BENEFICIAL INTEREST
SELECTED DEALERS AGREEMENT
, 2002
Investors Capital Corp.
000 Xxxxxxxx
Xxxxxxxxx, XX 00000
As Managing Underwriter
GENTLEMEN:
1. Investors Capital Corp. named as the Managing Underwriter
("Underwriter") in the enclosed preliminary Prospectus, proposes to offer on a
best efforts basis, subject to the terms and conditions and execution of the
Underwriting Agreement, a minimum of $20,000,000 units of certificates of
beneficial interest ("Unit") and a maximum of $75,000,000 Units of the above
closed-end Fund. The Units are more particularly described in the enclosed
Preliminary Prospectus, additional copies of which will be supplied in
reasonable quantities upon request. Copies of the definitive Prospectus will be
supplied after the effective date of the Registration Statement.
2. The Underwriter is soliciting offers to sell, upon the terms and
conditions hereof, a part of the Units from Selected Dealers, including you who
are to act as agent and who are (a) registered with the Securities and Exchange
Commission ("Commission") as broker-dealers under the Securities Exchange Act of
1934, as amended ("1934 Act"), and members in good standing with the National
Association of Securities Dealers, Inc. ("NASD"), or (b) dealers or institutions
with their principal place of business located outside the United States, its
territories and possessions who are not eligible for membership in the NASD and
who agree to make no sales within the United States, its territories or
possessions or to persons who are nationals thereof or residents therein and, in
making sales, to comply with the NASD's Interpretation with Respect to
Free-Riding and Withholding and with Sections 2730, 2740 and 2420, to the extent
applicable to foreign nonmember brokers or dealers, and Section 2750 of the
NASD's Rules of Fair Practice. The Units are to be offered at a public offering
price of $ 20.00 per Unit. Selected Dealers will be allowed a concession of not
less than five percent (5.0%) per Unit except as provided below. You may reallow
not in excess of one-half of one percent (0.5%) per Unit to dealers who meet the
requirements set forth in this Section 2. This offer is solicited subject to the
acceptance by the Underwriter, to the approval of legal matters by counsel and
to the terms and conditions as herein set forth.
3. Your offer to sell may be revoked in whole or in part without obligation
or commitment of any kind by you and any time prior to acceptance and no offer
may be accepted by us and no sale can be made until after the registration
statement covering the Units has become effective with the Commission. Subject
to the foregoing, upon execution by you of the Offer to Sell below and the
return of same to us, you shall be deemed to have offered to sell the number of
Units set forth in your offer on the basis set forth in paragraph 2 above. Any
oral notice by us of acceptance of your offer shall be immediately followed by
written or telegraphic confirmation preceded or accompanied by a copy of the
Prospectus. If a contractual commitment arises hereunder, all the terms of this
Selected Dealers Agreement shall be applicable. We may also make available to
you an allotment to sell Securities, but such allotment shall be subject to
modification or termination upon notice from us any time prior to an exchange of
confirmations reflecting completed transactions. All references hereafter in
this Agreement to the sell and sale of Units assume and are applicable only if
contractual commitments to sell are completed in accordance with the foregoing.
4. You agree that in offering said Units, if your offer is accepted after
the effective date, you will make a bona fide public distribution of same. You
will advise us upon request of Units offered by you remaining unsold and we
shall have the right to resell such Units upon demand at the public offering
price without paying the concession with respect to any Securities offered. Any
of the Securities sold by you pursuant to this Agreement are to be subject to
the terms hereof. Units shall not be offered or sold by you below the public
offering price before the termination of this Agreement.
5. Payment for Units which you sell hereunder shall be made by you on or
within one (1) business day after the date of each confirmation by certified or
bank cashier's check and sent to the State Street Bank and Trust Company,
Boston, MA and payable to: "New Colony Equity Income Fund, Special Escrow
Account".
6. A registration statement covering the offering has been filed with the
Securities and Exchange Commission in respect to the Units. You will be promptly
advised when the registration statement becomes effective. Each Selected Dealer
in selling Units pursuant hereto agrees (which agreement shall also be for the
benefit of the Fund) that it will comply with the applicable requirements of the
Securities Act of 1933 and of the Securities Exchange Act of 1934 and any
applicable rules and regulations issued under said Acts. No person is authorized
by the Fund or by the Underwriter to give any information or to make any
representations other than those contained in the Prospectus in connection with
the sale of the Units. Nothing contained herein shall render the Selected
Dealers a member of the Underwriting Group or partners with the Underwriter or
with one another.
7. You will be informed by us as to the exchange or states in which we have
been advised by counsel the have been qualified for sale or are exempt under the
respective securities or blue sky laws of such states, but we have not assumed
and will not assume any obligation or responsibility as to the right of any
Selected Dealer to sell Units in any state. You agree not to sell Units in any
other state or jurisdiction and to not sell Units in any state or jurisdiction
unless you are qualified or licensed to sell securities in such state or
jurisdiction.
8. The Underwriter shall have full authority to take such action as it may
deem advisable in respect of all matters pertaining to the offering or arising
thereunder. The Underwriter shall not be under any liability to you, except such
as may be incurred under the Securities Act of 1933 and the rules and
regulations thereunder, except for lack of good faith and except for obligations
assumed by us in this Agreement, and no obligation on our part shall be implied
or inferred herefrom.
9. Selected Dealers will be governed by the conditions herein set forth
until this Agreement is terminated. This Agreement will terminate when the
offering is completed, terminated or withdrawn. Nothing herein contained shall
be deemed a commitment on our part to sell you any Securities; such contractual
commitment can only be made in accordance with the provisions of paragraph 3
hereof.
10. You represent that you are a member in good standing of the NASD and
registered as a broker-dealer with the Commission, or that you are a foreign
broker-dealer not eligible for membership under Section 1 of the Bylaws of the
NASD who agrees to make no sales within the United States, its territories or
possessions or to persons who are nationals thereof or residents therein and, in
making sales, to comply with the NASD's interpretation with Respect to
Free-Riding and Withholding and with Sections 2730, 2740 and 2420 to the extent
applicable to foreign nonmember brokers and dealers, and Section 2750 of the
NASD's Rules of Fair Practice. Your attention is called to and you agree to
comply with the following: (a) Article III, Section 1 of the Rules of Fair
Practice of the NASD and the interpretations of said Section promulgated by the
Board of Governors of the NASD including Section 2740 and the interpretation
with respect to "Free-Riding and Withholding;" (b) Section 10(b) of the 1934 Act
,Rule 10b-10 and Regulation M of the general rules and regulations promulgated
under the 1934 Act; and (c) Rule 15c2-8 of the general rules and regulations
promulgated under the 1934 Act requiring the distribution of a preliminary
Prospectus to all persons reasonably expected to be buyers of the Securities
from you at least forty-eight (48) hours prior to the time you expect to mail
confirmations. You, as a member of the NASD, by signing this Agreement,
acknowledge that you are familiar with the cited laws and rules and agree that
you will not directly and/or indirectly violate any provisions of applicable law
in connection with your participation in the distribution of the Units.
11. In addition to compliance with the provisions of paragraph 10 hereof,
you will not, until advised by us in writing or by wire that the entire offering
has been distributed and closed, bid for or sell Units in the open market or
otherwise make a market in the Units or otherwise attempt to induce others to
sell the Units in the open market. Nothing contained in this paragraph 11 shall,
however, preclude you from acting as agent in the execution of unsolicited
orders of customers in transactions effectuated for them through a market maker.
12. You understand that the Underwriter may in connection with the offering
engage in stabilizing transactions. If the Underwriter contracts for or sells in
the open market in connection with such stabilization any
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Units sold by you hereunder and not effectively placed by you, the Underwriter
may charge you the Selected Dealer's concession originally allowed you on the
Units so sold and you agree to pay such amount to us on demand.
13. We agree that without your consent we will not sell to any account over
which we exercise discretionary authority, any of the Units that we sell and
which are the subject of this agreement.
14. All communications from you should be directed to us at: Investors
Capital Corp., Attention Investment Banking Department, 0 Xxxxxxx Xxxxxx,
Xxxxxxxxxx, X.X. 02904 (000-000-0000) fax (000-000-0000). All communications
from us to you shall be directed to the address to which this letter is mailed.
Very truly yours,
Investors Capital Corp.
By: ________________________________
Authorized Officer
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NEW COLONY EQUITY INCOME FUND
MINIMUM OF $20,000,000 UNITS OF BENEFICIAL INTEREST
AND
MAXIMUM OF $75,000,000 UNITS OF BENEFICIAL INTEREST
OFFER TO SELL
The undersigned does hereby offer to sell (subject to the right to revoke as
set forth in paragraph 3) __________* Units in accordance with the terms and
conditions set forth above. We hereby acknowledge receipt of the Prospectus
referred to in the first Paragraph thereof relating to such Units. We further
state that in offering such Units we have relied upon such Prospectus and upon
no other statement whatsoever, written or oral.
----------------------------
By: ________________________________
Authorized Officer
*If a number appears here which does not correspond with what you wish to offer
to sell, you may alter the number by crossing out the number, inserting a
different number and initializing the change.
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