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EXHIBIT 1.3
SELECTED DEALERS AGREEMENT
May 13, 1988
MONTGOMERY SECURITIES
600 Montgomery Street
San Francisco, California 94111
Ladies and Gentlemen:
1. General. We understand that Montgomery Securities is entering into
this Agreement with us and other firms who may be offered the right to purchase
as principal a portion of securities being distributed to the public. The terms
and conditions of this Agreement shall be applicable to any public offering of
securities ("Securities") pursuant to a registration statement filed under the
Securities Act of 1933 (the "Securities Act") wherein Montgomery Securities
(acting for its own account or for the account of any underwriting or similar
group or syndicate) is responsible for managing or otherwise implementing the
sale of the Securities to selected dealers ("Selected Dealers") and has
expressly informed us that such terms and conditions shall be applicable. Any
such offering of Securities to us as a Selected Dealer is hereinafter called an
"Offering." In the case of any Offering in which you are acting for the
account of any 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 you
are acting with others as representatives of Underwriters, such other
representatives. The term "preliminary prospectus" means any preliminary
prospectus relating to an Offering of Securities or any preliminary prospectus
supplement together with a prospectus relating to an Offering of Securities;
the term "Prospectus" means the prospectus, together with the final prospectus
supplement, if any, relating to an Offering of Securities, either filed
pursuant to Rule 424(b) or Rule 424(c) under the Securities Act or, if no such
filing is required, the form of final prospectus contained in the related
registration statement at the time that it first becomes effective.
2. Conditions of Offering; Acceptance and Purchase. Any Offering
will be subject to delivery of the Securities and their acceptance by you and
any other Underwriters, may be subject to the approval of certain legal matters
by counsel and the satisfaction of other conditions, and may be made on the
basis of reservation of Securities or an allotment against subscription. You
will advise us by telegram, telex, or other form of written communication
("Written Communication") of the particular method and supplementary terms and
conditions (including, without limitation, the information as to prices and
offering date referred to in section 3(b)) of any Offering in which we are
invited to participate. To the extent such supplementary terms and conditions
are inconsistent with any provision herein, such terms and conditions shall
supersede any such provision. Unless otherwise indicated in any such Written
Communication, acceptances and other communications by us with respect to any
Offering should be sent to Montgomery Securities, 600 Montgomery Street, San
Francisco, California 94111. You reserve the right to reject any acceptance in
whole or in part. Payment for Securities purchased by us is to be made at such
office as you may designate, at the public offering price, or if you shall so
advise us, at such price less the concession to dealers or at the price set
forth or indicated in a Written Communication, on such date as you shall
determine, on one days' prior notice to us, by certified or official bank check
payable in next day funds to the order of Montgomery Securities, against
delivery of certificates evidencing such Securities. If payment is made for
Securities purchased by us at the public offering price, the concession to
which we shall be entitled will be paid to us upon termination of the
provisions of Section 3(b) hereof with respect to such Securities.
Unless we promptly give you written instructions otherwise, if
transactions in the Securities may be settled through the facilities of The
Depository Trust Company, payment for and delivery of Securities purchased by us
will be made through such facilities if we are a member, or if we are not a
member, settlement may be made through our ordinary correspondent who is a
member.
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3. Representations, Warranties, and Agreement.
(a) Prospectuses. You shall provide us with such number of copies of
each preliminary prospectus, the Prospectus and any supplement thereto relating
to each Offering as we may reasonably request for the purposes contemplated by
the Securities Act and the Securities Exchange Act of 1934 (the "Exchange Act")
and the applicable rules and regulations of the Securities and Exchange
Commission thereunder. We represent that we are familiar with Rule 15c2-8 under
the Exchange Act relating to the distribution of preliminary and final
prospectuses and agree that we will comply therewith. We agree to keep an
accurate record of our distribution (including dates, number of copies, and
persons to whom sent) of copies of the Prospectus or any preliminary prospectus
(or any amendment or supplement to any thereof), and promptly upon request by
you, to bring all subsequent changes to the attention of anyone to whom such
material shall have been furnished. We agree to furnish to persons who receive
a confirmation of sale a copy of the Prospectus. We agree that in purchasing
Securities in an Offering we will rely upon no statements in the Prospectus
delivered to us by you. We will not be authorized by the issuer or other seller
of Securities offered pursuant to a Prospectus or by any Underwriters to give
any information or to make any representation not contained in the Prospectus
in connection with the sale of such Securities.
(b) Offer and Sale to the Public. With respect to any offering of
Securities, you will inform us by a Written Communication of the public
offering price, the selling concession, the reallowance (if any) to dealers,
and the time when we may commence selling Securities to the public. After such
public offering has commenced, you may change the public offering price, the
selling concession, and the reallowance to dealers. With respect to each
Offering of Securities, until the provisions of this Section 3(b) shall be
terminated pursuant to Section 4, we 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 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 National Association of
Securities Dealers, Inc. (the "NASD") and who are either members in good
standing of the NASD or foreign brokers or dealers not eligible for membership
in the NASD who represent to us that they will promptly reoffer such Securities
at the public offering price and will abide by the conditions with respect to
foreign brokers and dealers set forth in Section 3(e) hereof.
(c) Stabilization and Overallotment. You may, with respect to any
Offering, be authorized to overallot in arranging sales to Selected Dealers, to
purchase and sell Securities, any other securities of the issuer of the
Securities of the same class and series and any other securities of such issuer
that you may designate for long or short account, and to stabilize or maintain
the market price of the Securities. We agree to advise you from time to time
upon request, prior to the termination of the provisions of Section 3(b) with
respect to any Offering, of the amount of Securities purchased by us hereunder
remaining unsold and we will, upon your request, sell to you, for the accounts
of the Underwriters, such amount of Securities as you may designate, at the
public offering price thereof less an amount to be determined by you not in
excess of the concession to dealers. In the event that prior to the later of
(i) the termination of the provisions of Section 3(b) with respect to any
Offering, or (ii) the covering by you of any short position created by you in
connection with such Offering for your account or the account of one or more
Underwriters, you purchase or contract to purchase for the account of any of
the Underwriters, in the open market or otherwise, any Securities theretofore
delivered to us, you reserve the right to withhold the above-mentioned
concession to dealers on such Securities if sold to us at the public offering
price, or if such concession has been allowed to us through our purchase at a
net price, we agree to repay such concession upon your demand, plus in each case
any taxes on redelivery, commissions, accrued interest, and dividends paid in
connection with such purchase or contract to purchase.
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(d) Open Market Transactions. We agree not to bid for, purchase,
attempt to purchase, or sell, directly or indirectly, any Securities, any other
securities of the issuer of the Securities of the same class and series, or any
other securities of such issuer as you may designate, except as brokers
pursuant to unsolicited orders and as otherwise provided in this Agreement. If
the Securities are common stock or securities convertible into common stock, we
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 such issuer, except to the extent permitted by Rule 10b-6 under the Exchange
Act as interpreted by the Securities and Exchange Commission.
(e) NASD. We represent that we are actually engaged in the
investment banking or securities business and we are either a member in good
standing of the NASD, or, if not such a member, a foreign dealer not eligible
for membership. If we are such a member, we agree that in making sales of the
Securities we will comply with all applicable rules of the NASD, including,
without limitation, the NASD's Interpretation with Respect to Free-Riding and
Withholding and Section 24 of Article III of the Rules of Fair Practice. If we
are such a foreign dealer, we agree not to offer or sell any Securities in the
United States of America except through you and in making sales of Securities
outside the United States of America we agree to comply as though we were a
member with such Interpretation and Sections 8, 24, and 36 of Article III of
the NASD's Rules of Fair Practice and to comply with Section 25 of such Article
III as it applies to a non-member broker or dealer in a foreign country.
(f) Relationship among Underwriters and Selected Dealers. You may
buy Securities from or sell Securities to any Underwriter or Selected Dealer
and, with your 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. We are not authorized
to act as agent for you or any Underwriter or the issuer or other seller of any
Securities in offering Securities to the public or otherwise. Nothing contained
herein or in any Written Communication from you shall constitute the Selected
Dealers partners with you or any Underwriter or with one another. Neither you
nor any Underwriter shall be under any obligation to us except for obligations
assumed hereby or in any Written Communication from you in connection with any
Offering. In connection with any Offering, we agree to pay our proportionate
share of any claim, demand, or liability asserted against us, and the other
Selected Dealers or any of them, or against you or the Underwriters, if any,
based on any claim that such Selected Dealers or any of them constitute an
association, unincorporated business, or other separate entity, including in
each case our proportionate share of any expense incurred in defending against
any such claim, demand, or liability.
(g) Blue Sky Laws. Upon application to you, you will inform us as
to the jurisdictions in which you believe the Securities have been qualified for
sale under the respective securities or "blue sky" laws of such jurisdictions.
We understand and agree that compliance with the securities or "blue sky" laws
in each jurisdiction in which we shall offer or sell any of the Securities
shall be our sole responsibility and that you assume no responsibility or
obligations as to the eligibility of the Securites for sale or our right to
sell the Securities in any jurisdiction.
(h) Compliance with Law. 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 the applicable
provisions of the Securities Act and the Exchange Act, the applicable rules and
regulations of the Securites and Exchange Commission thereunder and the
applicable rules and regulations of any securities exchange having jurisdiction
over the Offering. You shall have full authority to take such action as you may
deem advisable in respect of all matters pertaining to any Offering. Neither
you nor any Underwriter shall be under any liability to us, except for lack of
good faith and for obligations expressly assumed by you in this Agreement;
provided, however, that nothing in this sentence shall be deemed to relieve you
from any liability imposed by the Securities Act.
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4. Termination; Supplements and Amendments. This Agreement may be
terminated by either party hereto upon five business days' written notice to
the other party; provided that with respect to any Offering for which Written
Communication was sent and accepted prior to such notice, this Agreement as it
applies to such Offering shall remain in full force and effect and shall
terminate with respect to such Offering in accordance with the last sentence of
this Section. This Agreement may be supplemented or amended by you by written
notice thereof to us, and 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 amended and
supplemented. The terms and conditions set forth in Sections 3(b) and (d)
hereof with regard to any Offering will terminate at the close of business on
the thirtieth day after the date of the initial public offering of the
Securities to which such Offering related, but such terms and conditions, upon
notice to us, may be terminated by you at any time.
5. Successor and Assigns. This Agreement shall be binding on, and
inure to the benefit of, the parties hereto and other persons specified or
indicated in Section 1 hereof, and the respective successors and assigns of
each of them; provided, however, that we may not assign our rights or delegate
any of our duties under this Agreement without your prior written consent.
6. Governing Law. This Agreement and the terms and condition 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 from you to us in connection therewith shall be governed
by, and construed in accordance with, the laws of the State of California.
By signing this Agreement we confirm that our subscription to, or our
acceptance of any reservation of, any Securities pursuant to an Offering shall
constitute (i) acceptance of and agreement to the terms and conditions of this
Agreement (as supplemented and amended pursuant to Section 4) together with and
subject to any supplementary terms and conditions contained in any Written
Communication from you in connection with such Offering, all of such shall
constitute a binding agreement between us and you, individually, or as a
representative of any Underwriters, (ii) in confirmation that our
representations and warranties set forth in Section 3 hereof are true and
correct at that time and (iii) confirmation that our agreements set forth in
Sections 2 and 3 hereof have been and will be fully performed by us to the
extent and at the times required thereby.
Very Truly Yours,
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(Name of Firm)
By: -----------------------------------
Name: ---------------------------------
Title: --------------------------------
Confirmed, as of the date
first above written.
MONTGOMERY SECURITIES
By: ---------------------------------
Partner
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