Brookstreet Securities Corporation Irvine, CA 92612 SELECTED DEALERS AGREEMENT
Brookstreet
Securities Corporation
0000
Xxxxxx Xxxxx, Xxxxx 000
Xxxxxx,
XX 00000
Ladies
and Gentlemen:
1. Registration
under the Securities Act of 1933, as amended (the “Act”),
of
2,000,000 Shares of Common Stock (the “Shares”) of Xxxx’x, Inc., a Delaware
corporation (the “Company”), as more fully described in the Prospectus, has been
declared effective as of August 3, 2005. We, as the Underwriters, are offering
certain of the Shares for sale by a selected group of dealers (the “Selected
Dealers”) on the terms and conditions stated herein.
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Authorized
Public Offering Price:
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$4.00
per Share.
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Dealers’
Selling Concession:
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Cash
commission: $0.24 per Share.
Warrants:
6% of the Shares sold by each Selected Dealer
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Delivery
and Payment:
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Delivery
of the Shares shall be made on a revolving basis upon receipt of
notice
from you indicating the number of shares to be sold, at the office
of
Brookstreet Securities Corporation, 0000 Xxxxxx Xxxxx, Xxxxx 000,
Xxxxxx,
XX 00000, or at such other place as we shall specify on not less
than one
day’s notice to you. Payment for the Shares 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, to the account designated by us
at least two days prior to the date the payment is due.
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Termination:
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This
Agreement shall terminate upon the earlier to occur of either the
sale of
all Shares or the expiration of the offering period as set forth
in the
Prospectus, unless extended at our discretion. We may terminate this
Agreement, whether or not extended, at any time without
notice.
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2. Any
of the Shares offered by you hereunder are to be offered by you to the public
at
the public offering price.
3. You,
by becoming a member of the Selected Dealers, agree: (a) upon your receipt
of the Prospectus, to take up and pay for the number of Shares allotted and
confirmed sold by you; (b) not to use any of the Shares to reduce or cover
any short position you may have; (c) upon our request, to advise us of the
number of Shares remaining unsold by you and to allow us to offer and sell
any
or all of such unsold Shares at the public offering price stated above; and
(d) to make available a copy of the Prospectus to all persons who on your
behalf will solicit orders for the Shares 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. 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. We will further deliver such Prospectuses as may be requested
by
you. You agree to deliver all copies of the Prospectus required to be delivered
under the provisions of Rule 15c2-8.
5. You
agree that until termination of this Agreement you will not make offers or
sales
of the Shares 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.
6. Additional
copies of the Prospectus and any supplements or amendments thereto shall be
supplied in reasonable quantity upon request.
7. The
Shares 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.
8. 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 Shares 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 Shares in any jurisdiction.
We
have caused to be filed a Further State Notice relating to such of the Shares
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 Shares were made by such member, the number of Shares 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.
9. 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
Rule 2740 NASD’s Conduct Rules; or (b) a foreign dealer or institution
that is not eligible for membership in the NASD and that has agreed (i) not
to sell Shares 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 2110-01
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.
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10. 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.
11. Brookstreet
Securities Corporation is 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 Shares; (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 Shares for sale under the laws of any
jurisdiction; (v) the delivery of the Shares; (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.
12. 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.
13. All
communications from you shall be addressed to Brookstreet Securities Corporation
at 0000 Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx, XX 00000 Attention: Xxxxxxx X. Xxxxxx,
President. 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
or
number, as the case may be, to which this letter is sent. This Agreement shall
be construed in accordance with the laws of the State of California without
giving effect to conflict of laws. Time is of the essence in this Agreement.
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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.
Very
truly yours,
Brookstreet
Securities Corporation
___________________________
By:
Xxxxxxx X. Xxxxxxxx
Its:
Executive Vice President, COO
Dated: ,
2006
(Selected
Dealer)
___________________________
By:
________________________
Its:
________________________
Address:
____________________
Telephone:
___________________
Fax:
________________________
E-mail:
______________________
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