CHINAGROWTH SOUTH ACQUISITION CORP.
SELECTED DEALER AGREEMENT
Ladies and Gentlemen:
Xxxxxx Xxxxxx & Co., Inc. ("XXXXXX XXXXXX") is acting as the
representative of the underwriters (the "UNDERWRITERS") in a firm commitment,
underwritten offering (the "OFFERING") to sell 4,500,000 units (the "Units")(1)
of ChinaGrowth South Acquisition Corp., a Cayman Islands corporation (the
"COMPANY") as described in the prospectus for the Offering (the "PROSPECTUS").
Xxxxxx Xxxxxx is hereby inviting the entity signatory hereto (the "SELECTED
DEALER"), subject to the other terms and conditions set forth herein and in the
Prospectus, to act as a selected dealer in connection with the Offering, and by
executing this Selected Dealer Agreement (this "AGREEMENT"), Xxxxxx Xxxxxx
hereby approves such signatory as a Selected Dealer in connection with the
Offering.
1. This Agreement shall be effective when the registration statement
relating to the Units (and including the Prospectus) (the "REGISTRATION
STATEMENT") filed by the Company under the Securities Act of 1933, as amended
(the "ACT"), has become effective with the Securities and Exchange Commission.
The terms of the Offering and the Selected Dealer's participation therein are as
follows:
Authorized Public Offering Price: $8.00 per Unit.
Selected Dealers' Selling Concession: Not to exceed $______ per Unit payable
upon termination of this Agreement,
except as provided below. Xxxxxx
Xxxxxx reserves the right not to pay
such concessions on any of the Units
purchased by the Selected Dealer from
Xxxxxx Xxxxxx and repurchased by
Xxxxxx Xxxxxx at or below the price
stated above prior to such
termination.
Reallowance: The Selected Dealer may reallow not in
excess of $______ per Unit as a
selling concession to dealers who are
members in good standing of National
Association of Securities Dealers,
Inc. (the "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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(1) Plus the over-allotment option available to the Underwriters to purchase up
to an additional 675,000 Units.
Delivery and Payment: Delivery of the Units shall be made on
or about ______________________, 2006
or such later date as Xxxxxx Xxxxxx
may advise on not less than one day's
notice to the Selected Dealer, at
Xxxxxx Xxxxxx'x principal office
located at 000 Xxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at
such other place as Xxxxxx Xxxxxx may
advise on not less than one day's
notice to the Selected Dealer. Payment
for the Units is to be made, against
delivery, at the authorized public
offering price stated above, or, if
Xxxxxx Xxxxxx shall so advise, at the
authorized public offering price less
the dealers' selling concession stated
above, by a certified or official bank
check in New York Clearing House Funds
or wire transfer of immediately
available funds payable to the order
of Xxxxxx Xxxxxx & Co., Inc..
Termination: 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 Xxxxxx Xxxxxx'x
discretion for a period or periods not
to exceed in the aggregate 30
additional days. Xxxxxx Xxxxxx may
terminate this Agreement, whether or
not extended, at any time and for any
reason, without notice. In addition,
this Agreement shall automatically
terminate if the Selected Dealer: (a)
ceases to be a member in good standing
of the NASD, (b) becomes subject to
NASD suspension, or (c) has its
registration as a broker-dealer under
the Securities Exchange Act of 1934,
as amended (the "EXCHANGE ACT") is
terminated or suspended. Upon
termination, all rights and
obligations under this Agreement shall
cease, except rights and obligations
accrued or unsatisfied at the date of
termination.
2. Any of the Units purchased by the Selected Dealer hereunder are to
be offered by the Selected Dealer to the public at the public offering price,
except as herein otherwise provided and except that a reallowance from such
public offering prices 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 the Selected Dealer that they will promptly
reoffer such Units at the public offering price and will abide by the conditions
set forth in paragraph 8 below.
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3. By its signature hereto, the Selected Dealer agrees that: (a) upon
effectiveness of the Registration Statement and receipt of the Prospectus, to
take up and pay for the number of Units allotted and confirmed to the Selected
Dealer by Xxxxxx Xxxxxx, (b) not to use any of the Units to reduce or cover any
short position of the Selected Dealer, (c) upon Xxxxxx Xxxxxx'x request, to
advise Xxxxxx Xxxxxx of the number of Units purchased from Xxxxxx Xxxxxx
remaining unsold by the Selected Dealer and to resell to Xxxxxx Xxxxxx any or
all of such unsold Units at the public offering prices stated above, less all or
such part of the concession allowed the Selected Dealer as Xxxxxx Xxxxxx may
determine, and (d) to make available a copy of the Prospectus to all persons who
on behalf of the Selected Dealer will solicit orders for the Units prior to the
making of such solicitations by such persons. If, prior to the later of: (i) the
termination of this Agreement, or (ii) the covering by Xxxxxx Xxxxxx of any
short position created by Xxxxxx Xxxxxx in connection with the Offering for its
account or the account of one or more Underwriters, Xxxxxx Xxxxxx purchases or
contract to purchase for its account or the account of one or more Underwriters
in the open market or otherwise any Units purchased by the Selected Dealer under
this Agreement as part of the Offering, the Selected Dealer agrees to pay Xxxxxx
Xxxxxx, on demand, for the account of the Underwriters, an amount equal to the
concession with respect to such Units (unless the Selected Dealer shall have
purchased such Units at the public offering price and has not received or been
credited with any concession, in which case Xxxxxx Xxxxxx shall not be obligated
to pay such concession to the Selected Dealer pursuant to this Agreement) plus
transfer taxes, broker's commissions or dealer's xxxx ups and accrued interest
or dividends, if any, paid in connection with such purchase or contract to
purchase.
4. As contemplated by Rule 15c2-8 under the Exchange, Xxxxxx Xxxxxx
agrees 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 the Exchange Act, the mailing to be made to the address given in the
request. The Selected Dealer confirms that it has received and reviewed the
Prospectus and delivered all preliminary prospectuses and revised preliminary
prospectuses, if any, required to be delivered under the provisions of Rule
15c2-8 and agrees to deliver all copies of the Prospectus required to be
delivered thereunder. The Selected Dealer acknowledges that Xxxxxx Xxxxxx has
heretofore delivered to the Selected Dealer such preliminary prospectuses as
have been required by the Selected Dealer, receipt of which is hereby
acknowledged, and will deliver reasonable quantities of additional prospectuses
(any supplements or amendments thereto) as may be reasonably requested by the
Selected Dealer.
5. The Selected Dealer agrees that until termination of this Agreement,
the Selected Dealer will not make purchases or sales of the Units except: (a)
pursuant to this Agreement, (b) pursuant to written authorization received from
Xxxxxx Xxxxxx, or (c) in the ordinary course of business as broker or agent for
a customer pursuant to any unsolicited order. The Selected Dealer agrees, that,
in purchasing Units, the Selected Dealer will rely upon no statement whatsoever,
written or oral, other than the statements in the Prospectus. The Selected
Dealer acknowledges that it is not authorized to give any information or to make
any representations other than those contained in the Prospectus or any
supplements or amendments thereto.
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6. The Units are offered by Xxxxxx Xxxxxx for delivery when, as and if
sold to, and accepted by, Xxxxxx Xxxxxx and subject to the terms herein and in
the Prospectus or any supplements or amendments thereto, to Xxxxxx Xxxxxx'x
right to vary the concessions and terms of the 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.
7. Upon written application to Xxxxxx Xxxxxx, the Selected Dealer shall
be informed as to the jurisdictions under the securities or blue sky laws of
which Xxxxxx Xxxxxx believes the Units are eligible for sale, but Xxxxxx Xxxxxx
assumes no responsibility as to such eligibility or the right of the Selected
Dealer or any other selected dealers in the Offering to sell any of the Units in
any jurisdiction. Upon the completion of the Offering, the Selected Dealer
agrees to promptly furnish to Xxxxxx Xxxxxx, upon request, territorial
distribution reports setting forth each jurisdiction in which sales of the Units
were made by the Selected Dealer, the number of Units sold in such jurisdiction,
and any further information Xxxxxx Xxxxxx may request in order to permit Xxxxxx
Xxxxxx to file on a timely basis any report that Xxxxxx Xxxxxx, as the
representative of the Underwriters or manager of the selected dealers in the
Offering, may be required to file pursuant to the securities or blue sky laws of
any jurisdiction.
8. By its signature hereto, as a condition of the approval by Xxxxxx
Xxxxxx of the Selected Dealer as such, the Selected Dealer confirms that it is
either: (a) a member in good standing of the NASD and that it is currently
registered as a dealer under the Exchange Act or (b) a foreign dealer that has
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. The
Selected Dealer hereby agrees to comply with the provisions of Rule 2810 of the
Rules of Fair Practice of the NASD. In addition, the Selected Dealer hereby
agrees to comply with the provisions of Rules 2710, 2420, 2730, 2740 and 2750 of
the Rules of Fair Practice of the NASD to the extent such sections are
applicable to the Selected Dealer's activities in connection with the Offering.
Furthermore, the Selected Dealer agrees that in selling Units (which agreement
shall also be for the benefit of the Company), the Selected Dealer will comply
with all applicable federal, state and foreign laws, rules and regulations,
including, without limitation, the applicable provisions of the Act and the
Exchange Act, the applicable rules and regulations of the Securities and
Exchange Commission thereunder, the applicable rules and regulations any
securities exchange or other regulatory authority having jurisdiction over the
Offering and all laws, rules and regulations relating to money laundering and
related compliance matters.
9. The Selected Dealer agrees that it shall act solely as an
independent contractor under this Agreement. Nothing herein shall be deemed to
create any partnership, joint venture or other association or entity between
Xxxxxx Xxxxxx and the Selected Dealers or among the Selected Dealers; provided,
however, that the Selected Dealer agrees, notwithstanding any prior settlement
of accounts or termination of this Agreement, to bear its proper proportion of
any tax or other liability based upon the claim that the selected dealers in the
Offering constitute a partnership, joint venture or other association or entity
and a like share of any expenses of resisting any such claim.
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10. Xxxxxx Xxxxxx shall be the managing underwriter of the Offering and
the manager of all of the selected dealers of the Offering (including the
Selected Dealer) and shall have full authority to take such action as it may
deem advisable in respect of all matters pertaining to the Offering or such
selected dealers or any one of them. Except as expressly stated herein, or as
may arise under the Act, Xxxxxx Xxxxxx shall be under no liability to the
Selected Dealer 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 any underwriting agreement entered into in connection with the Offering,
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.
11. If, for federal income tax purposes, should the Selected Dealer and
Xxxxxx Xxxxxx (together or with others), be deemed to constitute a partnership,
then the Selected Dealer elects to be excluded from the application of
Subchapter K, Chapter 1, Subtitle A of the Internal Revenue Code of 1986, as
amended, and the Selected Dealer agrees not to take any position inconsistent
with such election. The Selected Dealer authorizes Xxxxxx Xxxxxx, in its sole
discretion, to execute and file on the Selected Dealer's behalf, such evidence
of such election as may be required by the Internal Revenue Service.
12. All communications from the Selected Dealer shall be addressed to
Xxxxxx Xxxxxx Group LLC, 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: T. Xxxxx Xxxxxx. Any notice from Xxxxxx Xxxxxx to the Selected Dealer
shall be deemed to have been fully authorized by the Underwriters and to have
been duly given if mailed or sent by confirmed facsimile transmittal to the
Selected Dealer at the address to which this Agreement is initial sent. This
Agreement shall be construed in accordance with the laws of the State of New
York without giving effect to conflict of laws. Delivery of a signed counterpart
of this Agreement by fax or email/.pdf transmission shall constitute valid and
sufficient delivery thereof. Time is of the essence in this Agreement.
[Signature Page Follows]
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If you desire to become a Selected Dealer, please advise us to that
effect immediately and sign and return to us the enclosed counterpart of this
letter.
Very truly yours,
XXXXXX XXXXXX GROUP LLC
By:__________________________
Name:
Title:
We agree to act as a Selected Dealer in connection with the Offering on
the terms specified above.
Dated: _______________, 2006
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(Selected Dealer)
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(Signature)
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(Print Signatory's Title)
[Signature Page to ChinaGrowth South Acquisition Corporation.
Selected Dealer Agreement]
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