MEMORANDUM OF UNDERSTANDING
XXXXXXXX, XXXXXXXX, XXXXXX GROUP, INC. (together with its subsidiaries,
"FBR") and Fidelity Capital Markets, a division of National Financial Services
Corporation ( "Fidelity") hereby set forth their current intentions to establish
an ongoing strategic relationship in this non-binding Memorandum of
Understanding.
1. The parties hereto intend to establish an ongoing strategic business
relationship with respect to selected capital markets and other activities. The
relationship between the parties shall remain on an arm's-length business basis,
subject to termination at will by either party at any time, and shall in no
manner be construed to constitute a joint venture, partnership or other
fiduciary relationship. Neither party shall exercise controlling influence over
any aspect of the other party's business or corporate affairs. Each party shall
exercise full independent discretion in the operation of its own business
affairs and shall have full legal responsibility for its own affairs and any
consequences resulting therefrom. Neither party shall have any financial
obligation to the other party pursuant to the terms of this Memorandum of
Understanding, except to the extent such obligations arise pursuant to
independent arm's-length business transactions that the parties may engage in as
contemplated hereunder.
2. FBR and Fidelity will have a strategic alliance in the interest of the
efficient distribution of securities in initial public offerings of equity
securities and other offerings of securities.
(a) FBR will invite Fidelity to participate as a selling group member in
selected offerings in which FBR is acting as lead or co-managing underwriter on
a case-by-case basis as FBR and Fidelity deem appropriate, subject in all
instances to the suitability to the issuer's needs and such issuer's consent.
Fidelity may extend such invitations to correspondent firms of its clearing
business with FBR's consent with respect to each such firm.
(b) Fidelity will refer potential underwriting transactions to FBR on a
case-by-case basis as Fidelity and FBR deem appropriate, subject in all
instances to the issuer's needs and such issuer's consent.
3. FBR and Fidelity intend to focus their efforts under their strategic
relationship initially on certain industry sectors (the "Initial Sectors"),
including:
Regional Banks
Thrifts
Specialty Finance Companies
Real Estate
Technology
Energy
Healthcare
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4. FBR and Fidelity will explore potential strategic relationships in
other business lines, including, without limitation, merchant banking and
venture capital activities, asset management, research, and electronic trading
of securities.
5. Distribution and referral arrangements shall be determined by mutual
agreement between FBR and Fidelity on a case-by-case basis, and shall in all
instances be established on an independent arm's-length basis.
6. FBR and Fidelity intend to cooperate in seeking potential investment
banking transactions, where appropriate. To that end (i) FBR and Fidelity will
each use its best efforts to indicate to the other as promptly as practicable
whether (in the case of Fidelity) it intends to participate as a selling group
member in a transaction in which it is invited to participate under paragraph
2(a) or (in the case of FBR) it intends to pursue an underwriting transaction
referred to it under paragraph 2(b); and (ii) Fidelity intends to participate in
presentations (subject to personnel availability) in transactions which it has
referred to FBR, and in other transactions in which it intends to participate as
a selling group member, and does not intend to participate in such presentations
with respect to such transactions with other underwriters. With respect to
transactions in the Initial Sectors, Fidelity does not intend to participate in
presentations to prospective clients, without providing prior notice to FBR.
7. Each of FBR and Fidelity will provide the other with prior written
notice of any proposed strategic alliances into which it intends to enter in any
of the business lines discussed after the date of this agreement.
8. In the event of termination pursuant to paragraph 1 hereof (i) such
termination shall not affect any legally binding agreements that may be in
effect at the date of such termination, which agreements shall remain in full
force and effect and (ii) the parties will undertake a good faith effort to
resolve any pending transactions as to which no legally binding agreements are
in effect at the date of such termination, in a commercially reasonable manner.
9. It is the intention of Fidelity and FBR to discuss the progress, status
and potential next steps of their alliance on or before November 5, 1999.
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* * *
IN WITNESS WHEREOF the party's have executed this memorandum on the date
set forth below:
XXXXXXXX, BILLINGS, XXXXXX FIDELITY CAPITAL MARKETS,
GROUP, INC., a Virginia corporation a division of National Financial Services
Corporation
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------- --------------------------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxxxxxxx
Title: Chairman and Chief Title: President
Executive Officer
Dated: August 11, 1999 Dated: August 6, 1999
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