SELECTED DEALERS AGREEMENT
EARLYBIRDCAPITAL,
INC.
000
XXXXXXX XXXXXX
XXX
XXXX, XXX XXXX 00000
Dear
Sirs:
1. Registration
under the Securities Act of 1933, as amended (“Act”), of the 9,375,000
Units* of
Nagao
Group Holdings Limited (“Company”), as more fully described in the Preliminary
Prospectus, dated _________, 2007, and in the final prospectus (“Prospectus”)
which will be forwarded to you, will become effective in the near future. We,
as
the Underwriters, are offering certain of the Units for purchase by a selected
group of dealers (“Selected Dealers”) on the terms and conditions stated
herein.
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Authorized
Public Offering Price:
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$8.00 per Unit. | |
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Dealers’
Selling Concession:
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Not
to exceed $0.__ per Unit payable upon termination of this Agreement,
except as provided below. We reserve the right not to pay such concession
on any of the Units purchased by any of the Selected Dealers from
us and
repurchased by us at or below the price stated above prior to such
termination.
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Reallowance:
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You
may reallow not in excess of $0.__ per Unit as a selling concession
to
dealers who are members in good standing of the National Association
of
Securities Dealers, Inc. (“NASD”) or to foreign dealers who are not
eligible for membership in the NASD and who have agreed (i) not to
sell
the Units within the United States of America, its territories or
possessions or to persons who are citizens thereof or residents therein,
and (ii) to abide by the applicable Conduct Rules of the
NASD.
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Delivery
and Payment:
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Delivery
of the Units shall be made on or about ______, 2007 or such later
date as
we may advise on not less than one day’s notice to you, at the office of
EarlyBirdCapital, Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
or at
such other place as we shall specify on not less than one day’s notice to
you. Payment for the Units is to be made, against delivery, at the
authorized public offering price stated above, or, if we shall so
advise
you, at the authorized public offering price less the dealers’ selling
concession stated above, by wire
transfer in Federal (same day) funds or by
certified or official bank check in New York Clearing House Funds
payable
to the order of EarlyBirdCapital, Inc.
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Termination:
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This
Agreement shall terminate at the close of business on the 45th
day following the effective date of the Registration Statement (of
which
the enclosed Prospectus forms a part), unless extended at our discretion
for a period or periods not to exceed in the aggregate 30 additional
days.
We may terminate this Agreement, whether or not extended, at any
time
without notice
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Plus
the over-allotment option available to the Underwriters to purchase
up to
an additional 1,406,250
Units.
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2. Any
of
the Units purchased by you hereunder are to be offered by you to the public
at
the public offering price, except as herein otherwise provided and except that
a
reallowance from such public offering price not in excess of the amount set
forth on the first page of this Agreement may be allowed as consideration for
services rendered in distribution to dealers that (a) are actually engaged
in the investment banking or securities business; (b) execute the written
agreement prescribed by Rule 2740 of the NASD Conduct Rules; and (c) are either
members in good standing of the NASD or foreign banks, dealers or institutions
not eligible for membership in the NASD that represent to you that they will
promptly reoffer such Units at the public offering price and will abide by
the
conditions with respect to foreign banks, dealers and institutions set forth
in
paragraph 9 below.
3. You,
by
becoming a member of the Selected Dealers, agree (a) upon effectiveness of
the
Registration Statement and your receipt of the Prospectus, to take up and pay
for the number of Units allotted and confirmed to you, (b) not to use any of
the
Units to reduce or cover any short position you may have and (c) to make
available a copy of the Prospectus to all persons who on your behalf will
solicit orders for the Units prior to the making of such solicitations by such
persons. You are not authorized to give any information or to make any
representations other than those contained in the Prospectus or any supplements
or amendments thereto.
4. We
may be
authorized to over-allot in arranging sales to Selected Dealers, to purchase
and
sell Units, and to stabilize or maintain the market price of the Units. You
agree to advise us at any time and from time to time upon our request, prior
to
the termination of this Agreement, of the number of Units purchased by you
remaining unsold by you, and you will, upon our request at any such time, sell
to us, for our account or the account of one or more of the Underwriters, such
amount of such unsold Units as we may designate, at the public offering price
thereof less an amount to be determined by us not in excess of the concession
to
dealers. In the event that prior to the later of (i) the termination of this
Agreement or (ii) the covering by us of any short position created by us in
connection with the offering of the Units, for our account or the account of
one
or more Underwriters, we purchase or contract to purchase for our account or
the
account of any of the Underwriters, in the open market or otherwise, any Units
theretofore delivered to you, we reserve the right to withhold the
above-mentioned concession to dealers on such Units if sold to you at the public
offering price, or if such concession has been allowed to you through your
purchase at a net price, you agree to repay such concession upon our demand,
plus, in each case, any taxes on redelivery, commissions, original issue
discount, accrued interest and dividends paid in connection with such purchase
or contract to purchase.
5. As
contemplated by Rule 15c2-8 under the Securities Exchange Act of 1934, as
amended, we agree to mail a copy of the Prospectus to any person making a
written request therefor during the period referred to in the rules and
regulations adopted under such Act, the mailing to be made to the address given
in the request. You confirm that you have delivered all preliminary prospectuses
and revised preliminary prospectuses, if any, required to be delivered under
the
provisions of Rule 15c2-8 and agree to deliver all copies of the Prospectus
required to be delivered thereunder. We have heretofore delivered to you such
preliminary prospectuses as have been required by you, receipt of which is
hereby acknowledged, and will deliver such further prospectuses as may be
requested by you. You
agree
to keep an accurate record of your 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 us to bring all subsequent changes to the attention of anyone to
whom
such material shall have been furnished. You agree to furnish to persons who
receive a confirmation of sale a copy of the Prospectus filed pursuant to Rule
424(b) or Rule 424(c) under the Securities Act.
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6. You
agree
that until termination of this Agreement you will not make purchases or sales
of
the Units except (a) pursuant to this Agreement, (b) pursuant to authorization
received from us, or (c) in the ordinary course of business as broker or agent
for a customer pursuant to any unsolicited order.
7. Additional
copies of the Prospectus and any supplements or amendments thereto shall be
supplied in reasonable quantity upon request.
8. The
Units
are offered by us for delivery when, as and if sold to, and accepted by, us
and
subject to the terms herein and in the Prospectus or any supplements or
amendments thereto, to our right to vary the concessions and terms of offering
after their release for public sale, to approval of counsel as to legal matters
and to withdrawal, cancellation or modification of the offer without
notice.
9. Upon
written application to us, you shall be informed as to the jurisdictions under
the securities or blue sky laws of which we believe the Units are eligible
for
sale, but we assume no responsibility as to such eligibility or the right of
any
member of the Selected Dealers to sell any of the Units in any jurisdiction.
We
acknowledge that you have advised us that sales of the Company’s securities
cannot be made from the state of New Jersey or Connecticut. You represent to
us
that all sales by you of the Company’s securities will be made by your offices
outside the state of New Jersey and Connecticut. We have caused to be filed
a
Further State Notice relating to such of the Units to be offered to the public
in New York in the form required by, and pursuant to, the provisions of Article
23A of the General Business Law of the State of New York. Upon the completion
of
the public offering contemplated herein, each member of the Selected Dealers
agrees to promptly furnish to us, upon our request, territorial distribution
reports setting forth each jurisdiction in which sales of the Units were made
by
such member, the number of Units sold in such jurisdiction, and any further
information as we may request, in order to permit us to file on a timely basis
any report that we as the Underwriters of the offering or manager of the
Selected Dealers may be required to file pursuant to the securities or blue
sky
laws of any jurisdiction.
10. You,
by
becoming a member of the Selected Dealers, represent that you are actually
engaged in the investment banking or securities business and that you are (a)
a
member in good standing of the NASD and will comply with all applicable rules
of
the NASD, including but not limited to NASD Conduct Rule 2740, or (b) a foreign
dealer or institution that is not eligible for membership in the NASD and that
has agreed (i) not to sell Units within the United States of America, its
territories or possessions or to persons who are citizens thereof or residents
therein; (ii) that any and all sales shall be in compliance with Rule 2790
of
the NASD’s Conduct Rules; (iii) to comply, as though it were a member of the
NASD, with Rules 2730, 2740 and 2750 of the NASD’s Conduct Rules, and to comply
with Rule 2420 thereof as that Rule applies to a non-member broker or dealer
in
a foreign country. You
represent that neither you nor any of your directors, officers, partners, or
persons associated with you (as defined in the By-Laws of the NASD) nor, to
your
knowledge, any "related person" (as defined by the NASD in its Interpretation
Relating to Review of Corporate Financing, which term includes counsel,
financial consultants and advisors, finders, members of the selling or
distribution groups, and any other persons associated with or related to any
of
the foregoing) or any other broker-dealer has had, within the last twelve
months, any dealings with the Company or any controlling shareholders thereof
(other than relating to this Agreement) as to which documents or information
are
required to be filed with the NASD pursuant to its Interpretation Relating
to
Review of Corporate Financing.
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11. You
are
not authorized to act as agent for any Underwriter or the Company in offering
the Units to the public otherwise. Neither we not any Underwriter shall be
under
any obligation to you except as specifically set forth herein. Nothing
herein shall constitute any members of the Selected Dealers partners with us
or
with each other, but you agree, notwithstanding any prior settlement of accounts
or termination of this Agreement, to bear your proper proportion of any tax
or
other liability based upon the claim that the Selected Dealers constitute a
partnership, association, unincorporated business or other separate entity
and a
like share of any expenses of resisting any such claim.
12. EarlyBirdCapital,
Inc. shall be the Managing Underwriter of the offering and manager of the
Selected Dealers and shall have full authority to take such action as we may
deem advisable in respect of all matters pertaining to the offering or the
Selected Dealers or any members of them. Except as expressly stated herein,
or
as may arise under the Act, we shall be under no liability to any member of
the
Selected Dealers as such for, or in respect of (i) the validity or value of
the
Units (ii) the form of, or the statements contained in, the Prospectus, the
Registration Statement of which the Prospectus forms a part, any supplements
or
amendments to the Prospectus or such Registration Statement, any preliminary
prospectus, any instruments executed by, or obtained or any supplemental sales
data or other letters from, the Company, or others, (iii) the form or validity
of the Underwriting Agreement or this Agreement, (iv) the eligibility of any
of
the Units for sale under the laws of any jurisdiction, (v) the delivery of
the
Units, (vi) the performance by the Company, or others of any agreement on its
or
their part, or (vii) any matter in connection with any of the foregoing, except
our own want of good faith.
13. If
for
federal income tax purposes the Selected Dealers, among themselves or with
the
Underwriters, should be deemed to constitute a partnership, then we elect to
be
excluded from the application of Subchapter K, Chapter 1, Subtitle A of the
Internal Revenue Code of 1986, as amended, and we agree not to take any position
inconsistent with such selection. We authorize you, in your discretion, to
execute and file on our behalf such evidence of such election as may be required
by the Internal Revenue Service.
14. All
communications from you shall be addressed to EarlyBirdCapital, Inc. at 000
Xxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Xxxxxx,
Managing Director. Any notice from us to you shall be deemed to have been fully
authorized by the Underwriters and to have been duly given if mailed,
telegraphed or sent by confirmed facsimile transmittal to you at the address
to
which this letter is mailed. This Agreement shall be construed in accordance
with the laws of the State of New York without giving effect to conflict of
laws. Time is of the essence in this Agreement.
If
you
desire to become a member of the Selected Dealers, please advise us to that
effect immediately by facsimile transmission and sign and return to us the
enclosed counterpart of this letter.
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Very
truly yours,
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EARLYBIRDCAPITAL,
INC.
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As
representative of the Underwriters
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| By: | ||
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Xxxxxx
Xxxxxx
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Managing
Director
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We
accept
membership in the Selected Dealers on the terms specified above.
Dated:
___________ __, 2007
(Selected
Dealer)
__________________________________________
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Name:
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Title:
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