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Exhibit 4.9
BROKER-DEALER SELLING AGREEMENT
FOR THE SALE OF
12% SUBORDINATED NOTES DUE 2004
ISSUED BY PAWNMART, INC.
By our signature to this Broker-Dealer Selling Agreement, we agree with
PawnMart, Inc. (the "Issuer") and Xxxxxx Capital, Ltd. (the "Managing B/D) to
the following terms governing the offering and sale (the "Offering") of 12%
Subordinated Notes Due 2004 (the "Notes") which is issued on the terms and
conditions described in the Prospectus dated January 15, 1999 (as so amended and
supplemented, the "Prospectus").
1. We agree to act as a participating Broker-Dealer in connection with the
Offering of the Notes by the Issuer.
2. We agree to solicit subscriptions for the purchase of Notes from
qualified persons on the terms and conditions set forth herein and in
the Prospectus. In connection therewith, we agree to comply with the
terms and conditions of this Agreement and we agree to use our best
efforts to solicit subscriptions for the Notes from purchasers
acceptable to the issuer.
3. We will obtain from each purchaser a duly executed and authorized
Subscription Agreement, the form of which is shall be as supplied by
Issuer (the "Subscription Agreement"). Each Subscription Agreement
shall be supplied to the Issuer for review and acceptance or rejection.
We will make every reasonable effort to be assured that each person who
may be offered or sold Notes meets the suitability standards set forth
in the Prospectus and that an investment in said Notes is appropriate
to such person's investment objectives and financial situation. In
connection therewith, we will obtain and preserve information from each
investor that indicates that the investor meets such suitability
standards and shall, upon request by the Issuer, make copies of such
information available to the Issuer.
4. We understand that the Issuer may reject any subscriptions for any
reason, and we agree that any such rejection of a subscription obtained
by us or on our account shall be deemed not to be a sale made by us or
on our account. We acknowledge that each subscriber's check shall be
made payable: (a) during the Subscription Escrow period, to the "Escrow
Agent" as designated by Issuer; and (b) following the satisfaction of
all requirements for the release of subscription funds by the Escrow
Agent as stated in the Subscription Escrow Agreement and as required by
SEC Rule 15c2-4, to the Issuer as "PawnMart, Inc." All checks shall be
processed to as to assure that they shall be deposited in Subscription
Escrow account or the Company's account, as the case may be, by noon of
the business day following receipt of such check.
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5. We understand that we are not authorized to act as agent for the Issuer
in any connection or transaction or in any other matter, and we agree
that we will not act as agent or purport to do so. Any act to be
performed by us with respect to the Offering shall be as an independent
contractor.
6. We are not partners with any other dealer and the obligations of
ourselves and of any other dealers are several and not joint.
7. Subject to the terms and conditions contained in this Agreement, we
will be paid a commission on Notes sold by us while acting as
Broker-Dealer pursuant to this Agreement, which commission will be
calculated as stated on Schedule "A" which is attached to this
Agreement. We understand that commissions will be paid by the Managing
B/D within ten (10) days following the receipt by the Managing B/D of
the commissions due on such sales from the Issuer and that the
acceptance of such funds, and the payment of commissions due on such
sales, is subject to all terms and conditions herein, in the
Prospectus, and in the Subscription Agreement. Further, we understand
that a minimum subscription amount has been established and must be
achieved before investor funds will be released to the Issuer of before
any commissions will be paid or issued to us. We agree to bear our own
expenses (including attorneys fees) incurred in connection with the
Offering, including expenses incurred in the solicitation of sales of
Notes.
8. We hereby acknowledge receipt of the Prospectus dated January 15, 1999.
9. The Issuer will furnish us with any further amendment or supplement to
the Prospectus.
10. We represent that we are appropriately registered as a broker-dealer in
all states in which we will conduct business and are a member in good
standing of the National Association of Securities Dealers, Inc. (the
"NASD"). We agree not to solicit subscriptions for the Notes that will
result in a violation of the securities laws of the United States, or
of any state, or any rule or regulation thereunder, or of any rules of
any securities exchange.
11. We represent that there is not now pending or threatened against us any
action or proceeding of which we have been advised, either in any court
of competent jurisdiction, before the Securities and Exchange
Commission or any state securities commission concerning activities as
a broker or dealer, nor have we been named as a "cause" in any such
action or proceeding.
12. In the event any action or proceeding of the type referred to in
paragraph 11 shall be instituted or threatened against us at any time,
or in the event there shall be filed by or against us in any court
pursuant to any federal, state, local or municipal statute a petition
in bankruptcy or insolvency or for reorganization or for the
appointment of a receiver or trustee of assets, or if we make an
assignment for the benefit of creditors, we shall immediately notify in
writing thereof and the Issuer shall have the right to terminate this
Agreement.
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13. Upon request, the Issuer will inform us as to the states in which the
Issuer has been advised by counsel that the Notes have been qualified
for sale under the respective state securities laws, but the Issuer
does not assume any responsibility or obligation as to our right to
sell the Notes in any state. We understand and agree that under no
circumstances will we engage in any activities hereunder in any
jurisdiction (a) in which the Issuer has not informed us that the Notes
is qualified for sale under the applicable securities laws, or (b) in
which we may not lawfully so engage.
14. We confirm that our commitment to use our best efforts to solicit
subscriptions for the Notes will not result in a violation of the
securities laws of the United States, including but not limited to the
Securities Act of 1933, as amended (the "Act") or any rule or
regulation thereunder, or the securities laws of any state in which we
will conduct business or any rule or regulation thereunder, or of any
rules of any securities exchange to which we are subject or of any
restriction imposed upon us by any such exchange or governmental
authority and agree to indemnify the Issuer for any and all damages and
liabilities resulting from the same.
15. We represent that in connection with the Offering:
A. We will comply in all respects with (i) the provisions of this
Broker-Dealer Agreement, and (ii) the Issuer's policies and
procedures for firms engaging in the solicitation of sales of
the Notes;
B. We will comply with any applicable limitations in the manner
of offering the Notes as required by the Act and applicable
state securities laws;
C. Prior to making any sale, we will have reasonable grounds to
believe, after making reasonable inquiry, that each purchaser
meets the requirements of the Act; i.e., that each purchaser
either alone or with his purchaser representative(s) has such
knowledge and experience in financial and business matters
that he is capable of evaluating the merits and risks of the
prospective investment;
D. No owner, partner, director, or officer of our Broker-Dealer
firm has within the last five (5) years been subject to any of
the following administrative or judicial actions (by the
Securities and Exchange Commission or any state securities
commission):
1. Registration Stop Order (Issuance of Securities);
2. Securities related felony conviction;
3. Securities related administrative order;
4. Any administrative order involving fraud or deceit;
or
5. Securities related injunction;
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E. We have no current effective administrative order revoking a
securities exemption; and
F. We have not been suspended, censured or expelled by the NASD.
We agree to indemnify and hold the Issuer and the Managing
Broker/Dealer, their officers, directors and employees, harmless from
any costs associated with claims arising or alleged to arise out of a
breach of the foregoing representations, which representations and
indemnity shall survive the termination of this agreement.
16. Subject to the conditions set forth below, the Issuer agrees to
indemnify and hold us harmless, and each person, if any, who controls
or is employed by us within the meaning of Section 15 of the Securities
Act of 1933, as follows:
(1) Against any loss, liability, claim, damage and
expense arising out of (including but not limited to
expenses reasonably incurred in investigating,
preparing or defending against any litigation,
commenced or threatened, or any claim whatsoever
based upon) any untrue or alleged untrue statement of
a material fact contained in the Prospectus (as
amended and supplemented), or the omission or alleged
omission therefrom of a material fact required to be
stated therein or necessary to make the statements
therein not misleading; and
(2) Against any loss, liability, claim, damage and
expense to the extent of the aggregate amount paid in
settlement of any litigation, commenced or
threatened, or of any claim based upon any untrue
statement or omission or any alleged untrue statement
or omission (including but not limited to expenses
reasonably incurred in investigating, preparing or
defending against any such litigation or claim) if
such settlement is effected with the Issuer's written
consent.
In no case shall the Issuer be liable with respect to claims made
against us unless the Issuer shall be notified, by letter or by
telegram confirmed by letter, of any action commenced against us within
a reasonable time after we shall have been served with a summons or
other legal process giving information as to the nature and basis of
the claim, but failure to so notify the Issuer shall not relieve the
Issuer from any liability which it shall have otherwise than on account
of this indemnity agreement. The Issuer shall be entitled to
participate at its own expense in the defense, or if it so elects
within a reasonable time after receipt of such notice, to assume the
defense of any suit brought to enforce any such claim, but if it elects
to assume the defense, such defense shall be conducted by counsel
chosen by it and satisfactory to it. If the Issuer elects to assume the
defense of any such suit and retain counsel, we shall bear the fees and
expenses of any additional counsel thereafter retained by us.
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17. This Agreement may be terminated by either party at any time by written
notice to that effect sent to the other party at the address shown in
this Agreement. An attempt to assign any rights and obligations under
this Agreement shall constitute automatic termination of this
Agreement.
18. The representations and warranties set forth in this Agreement will
remain in full force and effect, regardless of any investigation made
by or on behalf of either of us and will survive termination of this
Agreement and the delivery of and payment for the Shares.
19. Any notice from the Issuer to us at the address set forth below shall
be deemed to have been duly given if mailed, or if communicated by
telegraph or telephone and subsequently confirmed in writing to us.
20. This Agreement may be modified only by a writing signed by the parties
hereto.
21. NOTWITHSTANDING THE PLACE WHERE THE AGREEMENT MAY BE EXECUTED BY ANY OF
THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT ALL OF THE TERMS
AND PROVISIONS HEREOF SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF TEXAS APPLICABLE TO AGREEMENTS
MADE AND TO BE WHOLLY PERFORMED THEREIN. FOR PURPOSES OF ANY LAWSUIT OR
OTHER PROCEEDING IN RESPECT TO THIS AGREEMENT, THE UNDERSIGNED HEREBY
SUBMIT AND CONSENT TO THE JURISDICTION OF ANY COURT OF COMPETENT
JURISDICTION SITTING IN THE STATE OF TEXAS, TARRANT COUNTY.
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We have indicated our confirmation of this Agreement by executing and
delivering it to the Issuer in duplicate. If accepted, the Issuer will execute
this Agreement, whereupon it shall constitute a binding contract between us.
Dated this day of , 1999.
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Broker-Dealer (Please Print)
By:
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(Print Name)
CRD # Tax ID #
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Address
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City, State, Zip Code
PAWNMART, INC. ("ISSUER") XXXXXX CAPITAL, LTD. ("MANAGING B/D")
By: By:
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(Print Name) (Print Name)
Date Accepted: Date Accepted:
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