EXHIBIT 10.1
Xxxxx Financial LLC
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
CORPORATE PROPERTY ASSOCIATES 16 - GLOBAL INCORPORATED
SELECTED DEALER AGREEMENT
____________, 2005
Ladies/Gentlemen:
We have agreed to use our best efforts to sell, along with a group of
selected dealers (collectively, the "Selected Dealers") to be formed with our
assistance, up to 95,000,000 shares of common stock, par value $0.001 per share
(each a "Share," and collectively, the "Shares") of Corporate Property
Associates 16 - Global Incorporated (the "Company"), of which 40,000,000 shares
are being offered pursuant to the Company's 2003 Distribution Reinvestment and
Stock Purchase Plan (the "DRIP"). The Shares are being offered by us, as Sales
Agent for the Company, and by the Selected Dealers. The terms of the offering of
the Shares (the "Offering") are more fully described in the enclosed prospectus
(the "Prospectus"), receipt of which you hereby acknowledge.
We are hereby inviting you to act as a Selected Dealer for the Offering,
subject to the other terms and conditions set forth below. You hereby confirm
that you are a member in good standing of the National Association of Securities
Dealers, Inc. (the "NASD"), that you have complied with all applicable federal
and state broker-dealer registration requirements and that you are not a
"discount broker" as that term is commonly understood in the brokerage industry.
Upon execution of this Selected Dealer Agreement (the "Selected Dealer
Agreement"), you agree to be bound by the terms and conditions of the Sales
Agency Agreement between us, as Sales Agent and the Company (the "Sales Agency
Agreement") (to the extent such terms apply to the Selected Dealers), a copy of
which is attached hereto as Exhibit A and of which this Selected Dealer
Agreement is a part.
Capitalized terms used herein and not otherwise defined herein shall have
the same meaning as in the Sales Agency Agreement.
Upon notification by us, you may offer the Shares at the public offering
price stated in the Prospectus, subject to the terms and conditions hereof. The
public offering price of the Shares and the amount of your Selling Commission
that is re-allowed by us to you with respect to volume sales of Shares to single
purchasers (as defined in the Prospectus) on Orders (as defined below) of
$250,000 or more shall be reduced by the amount of the Share purchase price
discount. In the case of such volume sales to single purchasers, your Selling
Commission will be reduced for each incremental Share purchase in the total
volume ranges set forth in the table below. Such reduced Share price purchase
price will not affect the amount received by the Company for investment. The
following table sets forth the reduced Share purchase price and Selling
Commission payable to you:
Selling Commission Per Share
Volume Discount Purchase Price Per Share For on Total Sale for Incremental
Range for a Incremental Share In Volume Share in
"Single Purchaser" Discount Range Volume Discount Range
$2,000 - $250,000 $10.00 $0.65
$250,001 - $500,000 $9.85 $0.50
$500,001 - $750,000 $9.70 $0.35
$ 750,001 - $1,000,000 $9.60 $0.25
$1,000,001 - $5,000,000 $9.50 $0.15
As an example, a single purchaser would receive 50,380 Shares (rather than
50,000 Shares) for his investment of $500,000 and the Selling Commission would
be $28,940. A refund will be made to the purchaser for any fractional Shares
based on the public offering price if such refund is in excess of $1.00. In the
example, $7.00 would be refunded for the fractional Share.
Selling Commissions for purchases of more than $5,000,000 are in our sole
discretion but in no event will the proceeds to the Company be less than $9.35
per Share. We may also re-allow to you a selected dealer fee of up to two
percent (2%) of the full price of each Share sold by you (the "Selected Dealer
Fee"), if you have executed an Addendum to this Selected Dealer Agreement
related to the Selected Dealer Fee; provided however, we will not pay you a
Selected Dealer Fee if the aggregate compensation to be paid to us, you and the
other Selected Dealers exceeds the limitations prescribed by the NASD.
We may in our sole discretion pay Selling Commissions of $0.50 per Share
sold for Shares purchased under the DRIP.
You may elect, in your sole discretion, to not accept any Selling
Commission or Selected Dealer Fee for Shares that you sell. In that event, these
Shares shall be sold net of all Selling Commissions and Selected Dealer Fees at
a price per Share of not less than $9.15.
To the extent a Selected Dealer is entitled to all or a portion of the 2%
Selected Dealer Fee, the Selected Dealer may elect to defer over time its
receipt of the Selected Dealer Fee to which it is entitled. In such event, the
Selected Dealer Fee to be reallowed will be paid to the Selected Dealer over a
period of up to ten years (which period will be agreed upon by Xxxxx Financial
LLC ("Sales Agent") and the Selected Dealer) until the Selected Dealer Fee
payable to the Selected Dealer has been paid in full. Further, if listing of the
Company's shares occurs on a national exchange or the Company's shares are
included for quotation on Nasdaq, any remaining deferred portion of the Selected
Dealer Fee payable to the Selected Dealer will become immediately due and
payable.
No payment of commissions or the Selected Dealer Fee will be made in
respect of Orders (or portions thereof) which are rejected by the Company.
Selling Commissions and the Selected Dealer Fee will be paid on each Closing
Date with respect to Shares sold to purchasers whose Shares are issued on such
Closing Date. Selling Commissions and the Selected Dealer Fee will be payable
only with respect to transactions lawful in the jurisdictions where they occur.
Purchases of Shares by W. P. Xxxxx & Co. LLC, its Affiliates or any Selected
Dealer or any of their employees shall be net of commissions.
-2-
For purposes of determining investors eligible for volume discounts,
investments made by accounts with the same primary account holder, as determined
by the account tax identification number, may be combined. This includes
individual accounts and joint accounts that have the same primary holder as an
individual account. Investments made through individual retirement accounts may
also be combined with accounts that have the same tax identification number as
beneficiary of the individual retirement account. In the event Orders are
combined, the commission payable with respect to the subsequent purchase of
Shares will equal the commission per share which would have been payable in
accordance with the table set forth above if all purchases had been made
simultaneously. Any reduction of the six and one half percent selling commission
otherwise payable to the Sales Agent or a Selected Dealer will be credited to
the purchaser as additional Shares. Unless purchasers indicate that Orders are
to be combined and provide all other requested information, the Company will not
be held responsible for failing to combine Orders properly.
In no event shall the aggregate underwriting compensation to be paid to
us, you and the other Selected Dealers in connection with the Offering and sale
of the Shares exceed the limitations prescribed by the NASD.
Orders for Shares (each an "Order") must be made during the offering
period described in the Prospectus (except for Orders made pursuant to the DRIP,
which may be made on an ongoing basis, pursuant to the terms of the DRIP). An
order form, in the form attached to the Prospectus, (each an "Order Form") must
be used in placing an Order for investors residing in certain states and, for
all other investors, Orders may be placed through such procedures as are
normally used by you for the sale of REIT shares and agreed to by the Company.
Persons desiring to purchase Shares are required to comply with such procedures
and, in certain states, to execute or have executed on their behalf one copy of
the Order Form. Subscribers purchasing shares by check must make such checks
payable to the Escrow Agent. By noon of the business day following receipt of
funds by you, either by check or by a sweep of customer accounts, you will
deliver via overnight delivery service a check payable to Deutsche Bank Trust
Company Americas, Escrow Agent, or other acceptable form of payment, for the
full amount of each Order along with an Order Form for each such Order and a
list showing the name, address and telephone number of, the social security
number or taxpayer identification number of, the number of Shares purchased, any
election to participate in the DRIP by, and the total dollar amount of the
investment by, each investor on whose behalf a check or other payment is
delivered. You will advise Deutsche Bank whether the funds you are submitting
are attributable to individual retirement accounts, Xxxxx plans, or any other
employee benefit plan subject to Title I of the Employee Retirement Income
Security Act of 1974 or from some other type of investor.
All Orders solicited by you will be strictly subject to review and
acceptance by the Company, and the Company reserves the right in its absolute
discretion to reject any such Order or to accept or reject Orders in the order
of their receipt by the Company or otherwise. You agree to maintain, for at
least six years, records of the information used by you to determine whether an
investment in Shares is suitable and appropriate for a potential investor in
Shares.
If the Company elects to reject an Order (such rejection to occur within
30 days after receipt by the Company of such Order), the Company shall, within
10 business days after such rejection, inform you of such rejection and return
the funds (and any interest earned thereon) and other documents submitted by the
rejected purchaser to you for transmission to such purchaser. If no notice of
rejection is received by you with the foregoing time limits or if funds
submitted by the purchaser are released from escrow to the Company within the
foregoing time limits, the Order shall be deemed accepted.
-3-
You agree that you will use your best efforts in offering the Shares and
will offer the Shares only in jurisdictions in which you are currently
registered as a securities dealer and only in accordance with the securities
laws of such jurisdictions.
You covenant and agree with respect to your participation in the Offering
to comply with any applicable requirements of the Securities Act of 1933 (the
"'33 Act") and of the Securities Exchange Act of 1934 (the "'34 Act"), and the
published rules and regulations of the Securities and Exchange Commission
thereunder, and the Conduct Rules of the NASD including but not limited to Rule
2730, Rule 2740 and IM 2740, Rule 2420 and IM 2420 and Rule 2750 and IM 2750.
We shall have full authority to take such action as we may deem advisable
in respect of all matters pertaining to the Offering. Neither you nor any other
person is authorized to give any information or make any representations other
than those contained in the Prospectus and sales literature furnished by the
Company in connection with the Offering, and you agree not to give any such
information or make any such representations. You acknowledge that we will rely
upon your agreements in this paragraph and in the preceding paragraph in
connection with the Sales Agency Agreement. No Selected Dealer is authorized to
act as agent for us when offering any of the Shares to the public or otherwise,
it being understood that you and each other Selected Dealer are independent
contractors with us. Nothing herein contained shall constitute you or the
Selected Dealers an association, unincorporated business, partnership or
separate entity with each other or an association or partner with us. Nothing
contained in this paragraph is intended to operate as, and the provisions of
this paragraph shall not constitute, a waiver by you of compliance with any
provision of the '33 Act or of the rules and regulations thereunder.
The Company will provide you with such number of copies of the enclosed
Prospectus and such number of copies of amendments and supplements thereto, and
certain supplemental sales material prepared by the Company, as you may
reasonably request for use by you in connection with the offer and sales of the
Shares. In the event you elect to use any such supplemental sales material, you
agree that such material shall not be used in connection with the offer and sale
of the Shares unless accompanied or preceded by the Prospectus as then currently
in effect and as it may be amended or supplemented in the future, and you
expressly agree not to prepare or use any sales material other than the approved
sales material. To the extent that information is provided to you marked "For
Broker/Dealer Use Only," "Internal Use Only" or with other similar language, you
covenant and agree not to provide such information to existing or prospective
investors. You agree that you will not use any other offering materials without
the prior written consent of the Company and us.
This Selected Dealer Agreement shall terminate at the close of business on
the 45th day after the completion of the sale of all of the Shares by the
Company, unless earlier terminated or unless the Sales Agency Agreement is
terminated, in which event this Selected Dealer Agreement will automatically
terminate. Either party may terminate this Selected Dealer Agreement at any time
by written notice, and we shall notify you promptly in the event of any early
termination of this Selected Dealer Agreement.
We will furnish to you a Blue Sky Memorandum naming the jurisdictions in
which we believe the Shares have been qualified for sale under, or are exempt
from the requirements of, the respective securities laws of such jurisdictions,
but we assume no responsibility or obligation as to your right to sell Shares in
any jurisdiction.
Your obligations under this Selected Dealer Agreement shall be subject to
the continued accuracy throughout the Effective Term of the representations,
warranties and agreements of the Company under the Sales Agency Agreement and
the Selected Dealer Agreement and to the performance by the Company of its
obligations under such agreements and to the terms and conditions set forth in
Section 7 of the Sales Agency Agreement.
-4-
You confirm that you are familiar with '33 Act Release No. 4968 and Rule
15c2-8 under the '34 Act, relating to the distribution of preliminary and final
prospectuses, and confirm that you have complied, and will comply, therewith.
You shall not directly or indirectly pay or award any finder's fees, commissions
or other compensation to any persons engaged by an investor for investment
advice as an inducement to such adviser to advise a potential investor to
purchase Shares. In addition, you agree not to receive any rebates or give-ups
or to participate in any reciprocal business arrangements (other than for the
underwriting arrangements described herein) which would violate any restrictions
on the Company contained in the Prospectus.
All representations, warranties and agreements contained in this Selected
Dealer Agreement (including any Addendum), the Sales Agency Agreement or in
certificates submitted to you pursuant to this Selected Dealer Agreement or
Sales Agency Agreement shall remain operative and in full force and effect,
regardless of any investigation made by, or on behalf of, you or any person who
controls you, and shall survive the closing and termination of the Offering.
Any communication from you should be in writing addressed to Xxxxx
Financial LLC, 00 Xxxxxxxxxxx Xxxxx, Xxx Xxxx, XX 00000. Any notice from us to
you shall be deemed to have been duly given if mailed or telegraphed to you at
the address to which this Selected Dealer Agreement is mailed.
The terms of this Agreement may be extended to cover additional offerings
of shares of the Company by the execution by the parties hereto of an addendum
identifying the shares and registration statement relating to such additional
offering. Upon execution of such addendum, the terms "Shares", "Offering",
"Registration Statement" and "Prospectus" set forth herein (and in any Addendum
hereto) shall be deemed to be amended as set forth in such addendum.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-5-
Please confirm your agreement hereto by signing and returning at once to
us both of the enclosed duplicate of this Selected Dealer Agreement, including
the information requested in Schedule A attached thereto. This Selected Dealer
Agreement shall be governed by and construed in accordance with the laws of the
State of New York applicable to agreements made and to be performed entirely
within such state.
Very truly yours,
XXXXX FINANCIAL LLC,
Sales Agent
By:__________________________________
Its:_________________________________
CORPORATE PROPERTY ASSOCIATES 16 -
GLOBAL INCORPORATED, the Company
By:__________________________________
Its:_________________________________
ACCEPTED, as of _______________
[Selected Dealer]
By:__________________________________
Its:_________________________________
SCHEDULE A TO SELECTED DEALER AGREEMENT
SELECTED DEALER INFORMATION
[PLEASE PRINT OR TYPE ALL REQUESTED INFORMATION]
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SELECTED/DEALER NAME:
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FIRM CRD NUMBER:
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SELECTED/DEALER ADDRESS:
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PHONE NUMBER:
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NAME OF PERSON SIGNING SELECTED DEALER AGREEMENT:
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TITLE OF PERSON SIGNING SELECTED DEALER AGREEMENT:
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CORPORATE PROPERTY ASSOCIATES 16 - GLOBAL INCORPORATED
ADDENDUM TO SELECTED DEALER AGREEMENT
The following reflects the Selected Dealer fee as agreed upon between
Xxxxx Financial LLC (the "Sales Agent") and the Selected Dealer, effective
______________.
Each calendar year, the Selected Dealer may qualify to receive a fee (the
"Selected Dealer Fee") of up to two percent of gross offering proceeds received
by Corporate Property Associates 16 - Global Incorporated (the "Company") from
sales of the Company's common stock by the Selected Dealer in such calendar
year.
Eligibility to receive the Selected Dealer Fee is conditioned upon the
Selected Dealer reaching a prescribed minimum annual sales volume of shares of
the Company's common stock and the Selected Dealer's compliance with one or more
of the following conditions. Any determination regarding the Selected Dealer's
compliance with the listed conditions will be made by the Sales Agent, in its
sole discretion.
1. The Selected Dealer has internal marketing and support personnel
(telemarketers, marketing director, etc.) who assist the Managing
Dealer's marketing team;
2. The Selected Dealer has and uses internal marketing communications
vehicle(s) to promote the Company. Vehicles may include, but are not
restricted to, newsletters, conference calls, cassette tapes,
internal mail, etc.;
3. The Selected Dealer will respond to investors' inquiries concerning
monthly statements, valuations, distribution rates, tax information,
annual reports, reinvestment and redemption rights and procedures,
the financial status of the Company and the real estate markets in
which the Company has invested;
4. The Selected Dealer will assist investors with reinvestments and
redemptions; and/or
5. The Selected Dealer will provide other services requested by
investors from time to time and will maintain the technology
necessary to adequately service investors.
IN WITNESS WHEREOF, the parties have executed this Addendum on the date
and year shown above.
SELECTED DEALER: SALES AGENT:
XXXXX FINANCIAL LLC
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(Name of Selected Dealer)
By: By:
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Name: Name:
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Title: Title:
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