EXHIBIT (1)(c)
GATEWAY AMERICAN PROPERTIES CORPORATION
1,500,000 Shares of Common Stock and
3,000,000 Common Stock Purchase Warrants
SELECTED DEALER AGREEMENT
Boca Raton, Florida
________________, 1997
Gentlemen:
1. Xxxxxx Xxxxx Securities, Inc. (the "Representative") and the other
Underwriters named in the Prospectus (collectively the "Underwriters"), acting
through us as the Representative, are severally offering for sale an aggregate
of 1,500,000 Shares of Common Stock (the "Shares") and 3,000,000 Warrants (the
"Warrants") (collectively the "Firm Securities") of Gateway American Properties
Corporation (the "Company"), which we have agreed to purchase from the Company,
and which are more particularly described in the Registration Statement,
Underwriting Agreement and Prospectus. In addition, the several Underwriters
have been granted an option to purchase from the Company up to an additional
225,000 Shares and an additional 450,000 Warrants (the "Option Securities") to
cover overallotments in connection with the sale of the Firm Securities. The
Firm Securities and any Option Securities purchased are herein called the
"Securities". The Securities and the terms under which they are to be offered
for sale by the several Underwriters are more particularly described in the
Prospectus.
2. The Securities are to be offered to the public by the several
Underwriters at the price per Share and price per Warrant set forth on the cover
page of the Prospectus (the "Public Offering Price"), in accordance with the
terms of offering set forth in the Prospectus.
3. Some or all of the several Underwriters are severally offering, subject to
the terms and conditions hereof, a portion of the Securities for sale to certain
dealers who are actually engaged in the investment banking or securities
business and who are either (a) members in good standing of the National
Association of Securities Dealers, Inc. (the "NASD"), or (b) dealers with their
principal places of business located outside the United States, its territories
and its possessions and not registered as brokers or dealers under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), who have agreed
not to make any sales within the United States, its territories or its
possessions or to persons who are nationals thereof or residents therein (such
dealers who shall agree to sell Securities hereunder being herein called
"Selected Dealers") at the public offering price, less a selling concession
(which may be changed) of not in excess of $________ per Share and/or $____
per Warran payable as hereinafter provided, out of which concession an amount
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not exceeding$_____ per Share and/or $_____ per Warrant may be reallowed by
Selected Dealers to members of the NASD or foreign dealers qualified as
aforesaid. The Selected Dealers who are members of the NASD agree to comply with
all of the provisions of the NASD Conduct Rules. Foreign Selected Dealers agree
to comply with the provisions of Rule 2740 of the NASD Conduct Rules, and, if
any such dealer is a foreign dealer and not a member of the NASD, such Selected
Dealer also agrees to comply with the NASD's Interpretation with Respect to
Free-Riding and Withholding, and to comply, as though it were a member of the
NASD, with the provisions of Rules 2730 and 2750 of the NASD Conduct Rules, and
to comply with Rule 2420 of the NASD Conduct Rules as that Rule applies to
non-member foreign dealers. Some or all of the Underwriters may be included
among the Selected Dealers. Each of the Underwriters 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. Xxxxxx Xxxxx Securities, Inc. shall act as Representative on behalf of
the Underwriters and shall have full authority to take such action as we may
deem advisable in respect to all matters pertaining to the public offering of
the Securities.
5. If you desire to act as a Selected Dealer, and purchase any of the
Securities, your application should reach us promptly by facsimile, letter or
telegraph at the offices of Xxxxxx Xxxxx Securities, Inc., 0000 Xxxx Xxxxxx
Xxxx, Xxxx Xxxxx, Xxxxxxx 00000, Attention: Xxxxxx X. Xxxx. We reserve the right
to reject subscriptions in whole or in part, to make allotments, and to close
the subscription books at any time without notice. The Securities allotted to
you will be confirmed, subject to the terms and conditions of this Selected
Dealer Agreement ("Agreement").
6. The privilege of subscribing for the Securities is extended to you only
on behalf of such of the Underwriters, if any, as may lawfully sell the
Securities to Selected Dealers in your state or other applicable jurisdiction.
7. Any Securities to be purchased by you under the terms of this Agreement
may be immediately reoffered to the public in accordance with the terms of
offering as set forth herein and in the Prospectus, subject to the securities or
Blue Sky laws of the various states or other jurisdictions.
You agree to pay us on demand for the accounts of the several Underwriters
an amount equal to the Selected Dealer concession as to any Securities purchased
by you hereunder which, prior to the completion of the public offering as
defined in paragraph 8 below, we may purchase or contract to purchase for the
account of any Underwriter and, in addition, we may charge you with any broker's
commission and transfer tax paid in connection with such purchase or contract to
purchase. Certificates for Securities delivered on such repurchases need not be
the identical certificates originally purchased.
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You agree to advise us from time to time, upon request, of the number of
Securities purchased by you hereunder and remaining unsold at the time of such
request, and, if in our opinion any such Securities shall be needed to make
delivery of the Securities sold or overallotted for the account of one or more
of the Underwriters, you will, forthwith upon our request, grant to us for the
account or accounts of such Underwriter or Underwriters 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 Securities owned by you as shall
have been specified in our request.
No expenses shall be charged to Selected Dealers. A single transfer tax,
if payable, upon the sale of the Securities by the respective Underwriters to
you will be paid when such Securities are delivered to you. However, you shall
pay any transfer tax on sales of Securities by you and you shall pay your
proportionate share of any transfer tax (other than the single transfer tax
described above) in the event that any such tax shall from time to time be
assessed against you and other Selected Dealers as a group or otherwise.
Neither you nor any other person is or has been authorized to give any
information or to make any representation in connection with the sale of the
Securities other than as contained in the Prospectus.
8. The first three paragraphs of Section 7 hereof will terminate when we
shall have determined that the public offering of the Securities has been
completed and upon telefax notice to you of such termination, but, if not
theretofore terminated, they 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 such provisions for a further period or periods, not
exceeding an additional 30 days in the aggregate upon facsimile notice to you.
9. For the purpose of stabilizing the market in the Securities, we have
been authorized to make purchases and sales of the Securities of the Company, in
the open market or otherwise, for long or short account, and, in arranging for
sales, to overallot.
10. On becoming a Selected Dealer, and in offering and selling the
Securities, you agree to comply with all the applicable requirements of the
Securities Act of 1933, as amended (the "1933 Act"), and the 1934 Act. You
confirm that you are familiar with Rule 15c2-8 under the 1934 Act relating to
the distribution of preliminary and final prospectuses for securities of an
issuer (whether or not the issuer is subject to the reporting requirements of
Section 13 or 15(d) of the 0000 Xxx) and confirm that you have complied and will
comply therewith.
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We hereby confirm that we will make available to you such number of copies
of the Prospectus (as amended or supplemented) as you may reasonably request for
the purposes contemplated by the 1933 Act or the 1934 Act, or the rules and
regulations thereunder.
11. Upon request, you will be informed as to the states and other
jurisdictions in which we have been advised that the Securities are qualified
for sale under the respective securities or Blue Sky laws of such states and
other jurisdictions, but neither we nor any of the Underwriters assume any
obligation or responsibility as to the right of any Selected Dealer to sell the
Securities in any state or other jurisdiction or as to the eligibility of the
Securities for sale therein. We will, if requested, file a Further State Notice
in respect of the Securities pursuant to Article 23-A of the General Business
Law of the State of New York.
12. No Selected Dealer is authorized to act as our agent or as agent for
the Underwriters, or otherwise to act on our behalf or on behalf of the
Underwriters, in offering or selling the Securities to the public or otherwise
or to furnish any information or make any representation except as contained in
the Prospectus.
13. Nothing will constitute the Selected Dealers an association or other
separate entity or partners with the Underwriters, or with each other, but you
will be responsible for your share of any liability or expense based on any
claim to the contrary. We and the several Underwriters shall not be under any
liability for or in respect of value, validity or form of the Securities, or the
delivery of the certificates for the Securities, or the performance by anyone of
any agreement on its part, or the qualification of the Securities for sale under
the laws of any jurisdiction, or for or in respect of any other matter relating
to this Agreement, except for lack of good faith and for obligations expressly
assumed by us or by the Underwriters in this Agreement and no obligation on our
part shall be implied herefrom. The foregoing provisions shall not be deemed a
waiver of any liability imposed under the 1933 Act.
14. Payment for the Securities sold to you hereunder is to be made at the
Public Offering Price less the above-mentioned selling concession on such time
and date as we may advise, at the office of Xxxxxx Xxxxx Securities, Inc., 0000
Xxxx Xxxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx 00000, Attention: Xxxxxx X. Xxxx, by wire
transfer to the account of the Representative or by a certified or official bank
check in current New York Clearing House funds, payable to the order of Xxxxxx
Xxxxx Securities, Inc., as Representative, against delivery of certificates for
the Securities so purchased. If such payment is not made at such time, you agree
to pay us interest on such funds at the prevailing broker's loan rate.
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15. Notices to us should be addressed to us at the offices of Xxxxxx Xxxxx
Securities, Inc., 0000 Xxxx Xxxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx 00000, Attention:
Xxxxxx X. Xxxx. Notices to you shall be deemed to have been duly given if
telephoned, telefaxed, telegraphed or mailed to you at the address to which this
Agreement or accompanying Selected Dealer letter is addressed.
16. This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida without giving effect to the choice of law or
conflicts of law principles thereof.
17. If you desire to purchase any Securities and act as a Selected Dealer,
please confirm your application by signing and returning to us your confirmation
on the duplicate copy of the Selected Dealer letter enclosed herewith, even
though you may have previously advised us thereof by telephone, letter or
telegraph. Our signature hereon may be by facsimile.
Very truly yours,
XXXXXX XXXXX SECURITIES, INC.
As Representative of the Several
Underwriters
BY:______________________________
Authorized Officer
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SELECTED DEALER LETTER
Xxxxxx X. Xxxx, President
Xxxxxx Xxxxx Securities, Inc.
0000 Xxxx Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
We hereby subscribe for _________ Shares and/or ______ Warrants of
Gateway American Properties Corporation in accordance with the terms and
conditions stated in the foregoing Selected Dealers Agreement and this
Selected Dealer Letter. We hereby acknowledge receipt of the Prospectus
referred to in the Selected Dealers Agreement and this Selected Dealer
Letter. We further state that in purchasing said Shares and/or Warrants we
have relied upon said Prospectus and upon no other statement whatsoever,
whether written or oral. We confirm that we are a dealer actually engaged
in the investment banking or securities business and that we are either (i)
a member in good standing of the National Association of Securities
Dealers, Inc. ("NASD"); or (ii) a dealer with its principal place of
business located outside the United States, its territories and its
possessions and not registered as a broker or dealer under the Securities
Exchange Act of 1934, as amended, who hereby agrees not to make any sales
within the United States, its territories or its possessions or to persons
who are nationals thereof or residents therein. As a member of the NASD, we
hereby agree to comply with all of the provisions of NASD Conduct Rules. If
we are a foreign Selected Dealer, we agree to comply with the provisions of
Rule 2740 of the NASD Conduct Rules, and if we are a foreign dealer and not
a member of the NASD, we agree to comply with the NASD's interpretation
with respect to free-riding and withholding, and agree to comply, as though
we were a member of the NASD, with provisions of Rules 2730 and 2750 of the
NASD Conduct Rules, and to comply with Rule 2420 of the NASD Conduct Rules
as that Rule applies to non-member foreign dealers.
Firm:___________________________
By:_____________________________
(Name and Position)
Address:_________________________________
_________________________________
Telephone No.:___________________________
Dated:______________________, 1997
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