_________ SHARES
_________________, INC
COMMON STOCK
SELECTED DEALER AGREEMENT
Ladies and Gentlemen:
1. We as the Underwriter named in the Prospectus referred to below (the
"Underwriter"), have agreed to purchase, subject to the terms and conditions set
forth in the Underwriting Agreement referred to in the Prospectus (the
"Underwriting Agreement"), from, a Minnesota corporation (the "Company"), an
aggregate of ___________ shares of Common Stock of the Company (the "Firm
Shares"). In addition, the Underwriter has been granted an option to purchase
from the Company up to an aggregate of an additional _________ shares of Common
Stock of the Company (the "Option Shares"), to cover over-allotments in
connection with the sale of the Firm Shares. The Firm Shares and the Option
Shares are hereinafter collectively called the "Shares." The Shares and the
terms upon which they are to be offered for sale by the several Underwriters are
more particularity described in the enclosed Prospectus.
2. The Shares are to be offered to the public by the Underwriter at a
price of $_.00 per share (hereinafter called the "Public Offering Price") and in
accordance with the terms of offering set forth in the Prospectus.
3. The Underwriter is offering, subject to the terms and conditions
hereof, a portion of the Shares for sale to (a) certain dealers which are
members of the National Association of Securities Dealers, Inc. (the "NASD") and
which agree to comply with the provisions of Rules 2420, 2730, 2740, and 2750 of
the NASD Conduct Rules (the "NASD Rules") and (b) foreign dealers or
institutions ineligible for membership in the NASD which agree (i) not to resell
the Shares to purchasers in, or to persons who are nationals or residents of,
the United States of America, or when there is a public demand for the Shares,
to persons specified as those to whom members of the NASD participating in a
distribution may not sell; and (ii) to comply, as though such foreign dealer or
institution were a member of the NASD, with the NASD's interpretation with
respect to free-riding and withholding and with the foregoing Sections of the
NASD Rules, to the extent applicable to foreign nonmember brokers or dealers,
(such dealers and institutions agreeing to purchase Shares hereinafter referred
to as "Selected Dealers") at the Public Offering Price less a selling concession
of $____ per share, payable as hereinafter provided, out of which concession an
amount not exceeding $___ per share may be reallowed by Selected Dealers to
members of the NASD or to foreign dealers or institutions ineligible for
membership therein which agree as aforesaid. This offering is made subject to
delivery of the Shares and their acceptance by us, to the approval of all legal
matters by counsel and to the terms and conditions herein set forth. Some or all
of the Underwriters may be included among the Selected Dealers. The Underwriter
has agreed that, during the term of this Agreement, it will be governed by the
terms and conditions hereof whether or not such Underwriter is included among
the Selected Dealers.
4. We may buy Shares from, or sell Shares to, any Selected Dealer, or
any other Underwriter, and any Selected Dealer may buy Shares from, or sell
Shares to, any other Selected Dealer or any Underwriter at the Public Offering
Price less all or any part of the concession. After the initial public offering
we may change the Public Offering Price, the concession and the reallowance.
5. If prior to the termination of this Agreement, we purchase or
contract to purchase, in the open market or otherwise, for the account of the
Underwriter any Shares purchased by you hereunder, you agree to pay us on demand
for our account an amount equal to the concession on such Shares. In addition,
we may charge you with any transfer taxes and broker's commission or dealer's
xxxx-up paid in connection with such purchase or contract to purchase.
6. We shall have full authority to take such action as we may deem
advisable in respect of all matters pertaining to the public offering of the
Shares.
7. If you desire to purchase any of the Shares, your indication of
interest should reach us promptly by telephone or facsimile at the offices of
Tuschner & Company, Inc., Xxxxx 000, One Financial Plaza, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000. We reserve the right to reject all
subscriptions in whole or in part, to make allotments and to close the
subscription books at any time without notice. The Shares allotted to you will
be confirmed, subject to the terms and conditions of this Agreement.
8. The privilege of purchasing the Shares is extended to you only on
behalf of the Underwriter to those Selected Dealers that may lawfully sell the
Shares in your state.
9. Any of the Shares purchased by you under the terms of this Agreement
may be immediately reoffered to the public in accordance with the terms of the
offering thereof set forth herein and in the Prospectus, subject to the
securities laws of the various states. Neither you nor any other person is or
has been authorized to give any information or to make any representations in
connection with the sale of the Shares other than as contained in the
Prospectus.
10. This Agreement will terminate when we shall have determined that
the public offering of the Shares has been completed and upon telegraphic notice
to you of such termination, but, if not previously terminated, this Agreement
will terminate at the close of business on the 30th full business day after the
date hereof; provided, however, that we shall have the right to extend this
Agreement for, an additional period or periods not exceeding 30 full business
days in the aggregate upon telegraphic notice to you.
11. For the purpose of stabilizing the market in the Common Stock of
the Company, we have been authorized to make purchases and sales thereof, in the
open market or otherwise, and, in arranging for sale of the Shares, to
over-allot.
12. You agree to advise us from time to time upon request, prior to the
termination of this Agreement, of the number of Shares purchased by you
hereunder and remaining unsold at the time of such request, and, if in our
opinion any such Shares shall be needed to make delivery of Shares sold or
over-allotted for the account of the Underwriter, you will, forthwith upon our
request, grant to us for our account the right, exercisable promptly after
receipt of notice from you that such right has been granted, to purchase, at the
Public Offering Price less the selling concession or such part thereof as we
shall determine, such number of Shares owned by you as shall have been specified
in our request.
13. On becoming a Selected Dealer, and in offering and selling the
Shares, you agree (which agreement shall also be for the benefit of the Company)
to comply with all applicable requirements of the Securities Act of 1933, as
amended (the "Act"), and the Securities Exchange Act of 1934, as amended (the
"Exchange Act"). You confirm that you are familiar with Rule 15c2-8 under the
Exchange Act relating to the distribution or preliminary and final prospectuses
for securities of an issuer and confirm that you have complied and will comply
therewith.
14. Upon request, you will be informed as to the jurisdictions in which
we have been advised that the Shares have been qualified for sale under the
respective securities or Blue Sky laws of such jurisdictions, but we do not
assume any obligation or responsibility as to the right of any Selected Dealer
to sell the Shares in any jurisdiction or as to any sale therein. You authorize
us to file on your benefit a New York Notice, if required.
15. Additional copies of the Prospectus will be supplied to you in
reasonable quantities upon request.
16. No Selected Dealer is authorized to act as our agent, or otherwise
to act on our behalf in offering or selling the Shares to the public or
otherwise.
17. We shall not be under any liability for or in respect of the value,
validity or form of the Shares, or delivery of the certificates for the Shares,
or the performance by anyone of any agreement on such person's part, or the
qualification of the Shares for sale under the laws of any jurisdiction, or for
or in respect of any matter connected with this Agreement, except for lack of
good faith and for obligations expressly assumed by us in this Agreement. The
foregoing provisions shall not be deemed a waiver of any liability imposed under
the Act.
18. Payment for the Shares sold to you hereunder is to be made at the
Public Offering Price, less selling concession, on or about ________, 199__, or
such later date as we may advise, by certified or official bank check, payable
to the order of Tuschner and Company, Inc., in current funds, at such place as
we shall specify on one day's notice to you against delivery of certificates for
the Shares. Notwithstanding the foregoing, if transactions in the Shares can be
settled through the facilities of The Depository Trust Company, payment for and
delivery of the Shares purchased by you hereunder will be made through the
facilities of The Depository Trust Company, if you are a member, unless you have
otherwise notified us prior to the date specified in our facsimile or telegram
to you, or, if you are not a member, settlement may be made through a
correspondent who is a member pursuant to instructions you may send us prior to
such specified date.
19. Notice to us should be addressed to us c/o Xxxx X. Xxxxxxxx,
Tuschner and Company, Inc., Xxxxx 000, One Financial Plaza, 000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000. Notices to you shall be deemed to have
been duly given if sent by telefacsimile, telegraphed or mailed to you at the
address to which this letter is addressed.
20. This Agreement shall be governed by the internal laws of the State
of Minnesota, without giving effect to the principles thereof relating to the
conflict of laws.
21. If you desire to purchase any of the Shares, please confirm your
subscription by signing and returning to us your confirmation overleaf on the
duplicate copy of this letter enclosed herewith even though you have previously
advised us thereof by telephone or telefacsimile.
Very truly yours,
TUSCHNER AND COMPANY, INC.
By:________________________
Dated: ________________________
CONFIRMATION
We confirm our agreement to purchase ________ shares of Common Stock of
________ Corporation (the "Shares"), subject to all the terms and conditions set
forth in the foregoing Selected Dealers Agreement. We hereby acknowledge receipt
of the Prospectus. We further state that in purchasing the Shares, we have
relied upon the Prospectus and upon no other statement whatsoever, whether
written or oral. We hereby confirm that we are a dealer actually engaged in the
investment banking or securities business and that we are either (a) a member in
good standing of the National Association of Securities Dealers, Inc. (the
"NASD") or (b) a dealer with its principal place of business located outside the
United Sates, its territories and its possessions and not registered as a broker
or dealer under the Securities Exchange Act of 1934 who hereby agrees not to
make any sales within the Unites States, its territories or its possessions or
to persons who are nationals thereof or resident therein. We hereby agree to
comply with the provisions of NASD Rules 2420, 2730, 2740, and 2750 and, if we
are a foreign dealer and not a member of the NASD, we also agree to comply with
the NASD's interpretation with respect to free-riding and withholding, to
comply, as though we were a member of the NASD, with the provisions of the above
NASD Rules as those Rules apply to non-member foreign dealers.
Dated:____________, 1997
----------------------------------
(Print corporate or firm name of
Selected Dealer)
----------------------------------
(Signature of authorized officer or partner)
----------------------------------
(Print name of person signing)
Address:
----------------------------------
----------------------------------
