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WATERSIDE CAPITAL
CORPORATION
COMMON SHARES
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SELECTED DEALER AGREEMENT
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Xxxxxxxx, Xxxxxxxx
, 0000
Ladies and Gentlemen:
We have delivered to you a prospectus (the "Prospectus") relating to the
offering by Waterside Capital Corporation, a Virginia corporation (the
"Company"), of the number of shares of common stock of the Company stated
therein ("Shares"). The undersigned has agreed to purchase the Shares, subject
to the conditions specified in the Underwriting Agreement.
Subject to the terms and conditions hereof and to the modification,
withdrawal or cancellation of the offering without notice, and subject to the
terms and conditions of the Underwriting Agreement, one or more of the
Underwriters, acting through us, are severally offering to certain dealers
("Dealers") (included among whom may be any or all of the Underwriters and their
respective subsidiaries) who are members of the National Association of
Securities Dealers, Inc. (the "NASD") or foreign dealers registered under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), who shall
agree, in making sales of the Shares in the United States, to conform to the
NASD Conduct Rules, or if not so registered, shall agree not to reoffer, resell
or deliver the Shares in the United States, its territories or possessions or to
persons who they have reason to believe are citizens thereof or residents
therein, unless they comply with the NASD's Interpretation with Respect to
Free-Riding and Withholding and comply, as though they were members of the NASD,
with the provisions of Rules 2730, 2740 and 2750 of the NASD Conduct Rules and
with Rule 2420 of the NASD Conduct Rules as that rule applies to a nonmember
foreign dealer, the opportunity to purchase Shares at $ per Share (the
"public offering price") less a concession to Dealers of $ per Share. This
offer is extended to you only on behalf of such of the Underwriters as may
lawfully sell Shares to Dealers in your state.
We shall advise you by telegram, facsimile or letter of the method and
terms of the offering. Acceptance of any reserved Shares, which must be sent by
telegraph or in writing to us, received by the time specified therefor in the
offering telegram, facsimile or letter to us by the time specified therefore in
the offering communication, and any application for additional Shares, will be
subject to rejection in whole or in part. The subscription books for the
offering to Dealers may be closed by us at any time without notice and we
reserve the right to reject any subscription in whole or in part. All
subscriptions will be received subject to prior sale.
Immediately upon receipt of the aforementioned telegram, facsimile or
letter, you may reoffer the Shares purchased by you hereunder, subject to the
Underwriter's receipt and acceptance of the Shares, and upon the other terms and
conditions set forth herein and in the Prospectus. Shares purchased hereunder or
pursuant to the following sentence are to be offered to the public at the public
offering price, except that an amount not exceeding $ per Share may be
allowed to any member of the NASD (or to foreign dealers who are not eligible
for such membership but who agree to conform to the NASD Conduct Rules in making
sales to purchasers in the United States) acting as principal or as buyer's
agent, if such allowance is to be retained and not reallowed in whole or in
part. With our consent or after the books in respect of the offering to Dealers
have been closed, Dealers who are parties to the Selected Dealer Agreement and
Underwriters may deal in Shares with each other at the public offering price
less an amount not exceeding the concession to Dealers. After the Shares are
released for sale to the public, we are authorized to vary the public offering
price and other selling terms.
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The Shares confirmed to you are to be paid for at the public offering price
less the concession to Dealers at the offices of Xxxxx & Xxxxxxxxxxxx, 000 Xxxx
Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx, prior to 9:00 a.m., Richmond, Virginia time, on
the Closing Date and, if applicable, the Option Closing Date, as defined in the
Underwriting Agreement, by certified or official bank check payable in next day
funds to our order against delivery of such Shares. Dealers not located in
Richmond should arrange to have a Richmond bank or correspondent accept delivery
of, and pay for, the Shares that they agree to purchase and should advise us
immediately of the name of such bank or correspondent.
In order to facilitate distribution of the Shares, we may make purchases
and sales of Shares (but are without obligation to do so) in the open market or
otherwise, for long or short account, at such prices, in such amounts and in
such manner as we may determine, and, in arranging for the sale of Shares to
Dealers, may over-allot for the accounts of the Underwriters, and may make
purchases for the purposes of covering such over-allotments. There can be no
assurance that the price of Shares will be stabilized or that stabilization, if
commenced, will not be discontinued at any time.
Your acceptance hereof shall constitute an obligation on your part to
purchase, upon the terms and conditions hereof, the Shares confirmed to you in
respect hereof and to observe all of the terms and conditions hereof. You agree
that in reoffering the Shares you will comply with all applicable requirements
of the Securities Act of 1933, as amended, the Exchange Act, and of all
applicable rules and regulations under the federal securities laws. If you fail
to pay for the Shares confirmed to you or fail to perform any of your other
obligations hereunder, we may, in our discretion and without demand, notice or
legal proceedings, and in addition to any and all remedies otherwise available
to us (a) terminate any right or interest on your part hereunder, and (b) at any
time and from time to time sell, without notice to you, any Shares then held for
your account at public or private sale at such price or prices and upon such
terms and conditions as we may deem fair, and apply the net proceeds so
realized, as determined by us, toward payment of any obligations in respect of
which you are in default, and, notwithstanding any action taken under (a) or (b)
above, or both, you shall remain liable to the Underwriters for all loss and
expense resulting from your default. At any such sale or sales, any of the
Underwriters may purchase any portion of the Shares so sold, free from any right
or interest on your part in such Shares. A default by one or more Dealers shall
not release you from any obligation hereunder.
You agree that until termination of this Agreement you will advise us, from
time to time upon request, as to the number of Shares confirmed to you hereunder
which then remain unsold; and you further agree that, until termination of this
Agreement, you will upon our request sell to us for our account such number of
such unsold Shares as we may specify at the public offering price or, if
agreeable to you, at the public offering price less an amount not in excess of
the concession to Dealers.
We shall have full authority to take such action as we may deem advisable
in respect to all matters pertaining to the offering or arising hereunder. You
are not authorized (a) by the Company or us to give any information or to make
any representations in connection with the offering or sale of the Shares other
than those contained in the Prospectus or (b) to act as agent for the Company or
for any of the Underwriters when offering the Shares to the public or otherwise.
Nothing contained herein shall constitute the Dealers as an association or
partnership with us or with each other, or an unincorporated business or other
separate entity.
We will advise you on request of the jurisdictions under the Blue Sky or
securities laws of which counsel for the Underwriters have advised us that the
Shares have been qualified for public offering and sale, or are exempt from
qualification. We shall, however, be under no responsibility whatsoever to any
Dealer with respect to the right of such Dealer to sell the Shares in any
jurisdiction.
We have undertaken and undertake to mail copies of the Prospectus upon
receipt of written requests to the addresses stated in such requests. You
confirm that you have undertaken and undertake to do the same with regard to the
delivery of such copies to your associated persons and to other persons.
Neither we nor any Underwriters shall be under any liability (except for
our own want of good faith) for or in respect of the validity or value of, or
title to, any of the Shares, the form of, or the statements contained in, or the
validity of, the Prospectus or any amendment or supplement thereto, or any other
instruments
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executed by or on behalf of the Company or others, the form or validity of the
Underwriting Agreement or this Agreement, the delivery of the Shares, the
performance by the Company or others of any agreement on its or their part or
any matter in connection with any of the foregoing; provided, however, that
nothing in this paragraph shall be deemed to relieve us or any Underwriters from
any liability imposed by federal securities laws.
You confirm that you are familiar with the Interpretation of the Board of
Governors of the NASD with respect to Free-Riding and Withholding, and you agree
that you will comply with such Interpretation in offering and selling Shares to
the public.
You further 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 Rule 2710
of the NASD Conduct Rules) have participated or intend to participate in any
transaction or dealing as to which documents or information are required to be
filed with the NASD pursuant to such Rule 2710.
All communications from you should be addressed to Xxxxx & Xxxxxxxxxxxx,
000 Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention: Syndicate Department.
Any notice from us to you shall be deemed to have been duly authorized by the
Underwriters and to have been duly given if mailed or telegraphed to you at the
address to which this letter is addressed.
This Agreement may be terminated by us at any time without notice. Upon
termination of this Agreement, all authorizations, rights and obligations
hereunder shall cease, except rights and obligations accrued or unsatisfied at
the date of termination. Notwithstanding termination of this Agreement, you
shall be liable for your proper proportion of any transfer tax or other
liability which may be asserted against us or any of the Underwriters or Dealers
purchasing Shares hereunder, based upon the claim that the Dealers, or any of
them, constitute a partnership, an association, an unincorporated business or
other separate entity.
If before the termination of this Agreement, we shall purchase, or contract
to purchase, for the accounts of the Underwriters, in the open market or
otherwise, any Shares delivered to you pursuant hereto, you shall repay to us,
for the account of the Underwriters, the concession to Dealers with respect to
such Shares, and all brokerage commissions and transfer taxes paid in connection
with such purchase or contract to purchase.
Please confirm your agreement to abide by and conform to all the terms and
conditions of this Agreement by signing and returning at once the duplicate copy
enclosed herewith.
Yours very truly,
XXXXX & XXXXXXXXXXXX, INC.
By:
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Authorized Representative
Please execute the Confirmation on next page.
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CONFIRMATION
XXXXX & XXXXXXXXXXXX, INC.
000 Xxxx Xxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
We hereby confirm our agreement to purchase the Shares to which the
foregoing Selected Dealer Agreement relates, subject to your acceptance or
rejection in whole or in part in case of a subscription or application in excess
of any reservation, and acknowledge that such purchase and the purchase of
additional Shares, if any, prior to the termination of the Selected Dealer
Agreement, are subject to all the applicable terms and conditions thereof. We
agree to abide by and conform to the Selected Dealer Agreement and to your
offering telegram, facsimile or letter referred to therein, and to take up and
pay for such Shares as therein provided. We acknowledge receipt of the
Prospectus relating to the Shares and we hereby confirm that in entering into
the Selected Dealer Agreement and in offering the Shares we have relied and will
rely upon the Prospectus and on no other statements whatsoever, written or oral.
We further confirm that we are a member of the National Association of
Securities Dealers, Inc. ("NASD"), or if we are not such a member, that (i) we
are a foreign dealer registered under the Securities Exchange Act of 1934, as
amended, and hereby agree that in making sales of Shares in the United States we
will conform to the NASD Conduct Rules, or (ii) if not so registered, we hereby
agree not to reoffer, resell or deliver Shares in the United States, its
territories or possessions or to any person who we have reason to believe is a
citizen thereof or resident therein, unless we comply with the NASD's
Interpretation with Respect to Free-Riding and Withholding and comply, as though
we were a member of the NASD, with the provisions of Rules 2730, 2740 and 2750
of the NASD Conduct Rules and with Rule 2420 of such rules as that Rule applies
to a non-member foreign dealer.
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(Name of Firm)
By:
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(Authorized Signature)
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(Address)
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(City and State)
Dated: ____________________, 1998
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