EXHIBIT 1.1
FORM OF DEALER MANAGEMENT AGREEMENT
100,000 SHARES OF LIMITED LIABILITY COMPANY INTERESTS
of
ICON Income Fund Nine, LLC
(a Delaware limited liability company)
DEALER-MANAGER AGREEMENT
------------------------
ICON Securities Corp.
000 Xxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Reference is made to the enclosed Prospectus (the "Prospectus") relating
to the offering by ICON Income Fund Nine, LLC, an equipment leasing program in
the form of a limited liability company ("the Company"), of limited liability
company interests in shares of $1,000 each (the "Shares"). The Shares and the
terms upon which they are offered are more fully described in the Prospectus.
We are entering into this Agreement with you as exclusive managing sales
agent ("Dealer-Manager") pursuant to which you are authorized to (1) select and
provide sales support to a group of securities broker-dealers (the "Selling
Dealers") which are members of the National Association of Securities Dealers,
Inc. (the "NASD") and (2) to offer directly to the general public, in each case
to offer, on a best efforts basis, a Total Maximum Offering of up to 100,000
Shares.
Each Selling Dealer selected by you is authorized by its Selling Dealer
Agreement, and you are hereby authorized, to find purchasers for the Shares
which satisfy the suitability standards set forth in the Prospectus during the
Offering Period (as defined below) and which are acceptable to the Company. The
date on which the offering shall terminate is the earlier of (i) the last day of
the twenty-four (24) month period which begins on the Effective Date (as defined
in the Prospectus) of the Registration Statement (with the offering of Shares in
certain states for more than 12 months subject to the permission of the state
securities commission of such respective states) or (ii) the date on which all
Shares available for sale are fully subscribed, unless the Offering is earlier
terminated (with notice to you) by the Manager (hereinafter called the
"Termination Date"). The period between the Effective Date of the Registration
Statement and the Termination Date is hereinafter called the "Offering Period."
Each date on which any Member (other than the Original Member) is admitted to
the Company is hereinafter called a "Closing Date."
This Agreement shall become effective (i) at 12:01 A.M., New York City
time, on the first full business day after the Effective Date, or (ii) upon the
release of the Shares for offering, whichever is earlier. The time of the
release of the Shares for offering is the publication after the Effective Date
of the first newspaper advertisement relating to the Shares or the time of the
first mailing of copies of the final Prospectus, whichever is earlier. Each of
us agrees to notify the other immediately after it shall have taken any action
by release or otherwise, whereby this Agreement shall have become effective.
This Agreement may be terminated by the Company at any time before it becomes
effective without liability to the Company or any Partner thereof (as defined
therein).
The Company will accept subscriptions for the Shares subject to the
Company's right to terminate the Offering Period at any time without notice and
to reject any subscription in whole or in part, in its sole discretion. The
acceptance of subscriptions is further subject to the following terms and
conditions:
1. Appointment as Dealer-Manager. We hereby authorize you to act as a
Dealer-Manager during the Offering Period and, on a "best efforts" (and not
"firm underwriting") basis only, to offer Shares directly, and to enter into
Selling Dealer Agreements on behalf of the Company authorizing each such Selling
Dealer to offer, to potential investors which (a) satisfy the investor
suitability standards (i) set forth in the Prospectus as well as (ii) under
applicable state laws and (iii) the NASD Rules of Fair Practice and (b) are
acceptable to the Company ("Eligible Investors"). As Dealer Manager, you will
act as an independent contractor and not as our agent or as agent for the
Company in connection with your solicitation of subscriptions for Shares and
will therefore be responsible for assuring that each subscriber satisfies all
such requirements. You agree that you will not make representations or give
information which is not (x) contained in the Prospectus or in supplemental
sales literature specifically authorized for use in the manner described in
Section 5 of this Agreement or (y) consistent with the representations and
information contained therein.
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2. Subscriptions for Shares. You shall (a) find Eligible Investors for the
Shares, (b) keep records of the basis for each determination by a member of, or
person associated with, your firm of a subscriber's suitability and (c) promptly
forward each fully completed and executed copy of the Subscription Agreement, as
signed by each subscriber and countersigned by a supervisory representative of
your firm, together with the related subscription payment in the form of a check
made payable to "The Chase Manhattan Bank ICON Income Fund Nine, LLC Escrow"
Account to:
ICON Securities Corp.
000 Xxxxx Xxxxxx, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Each Subscription Agreement and related subscription payment shall be
forwarded by your firm to us at the foregoing address no later than noon of the
next business day after receipt from your customer by any member of, or person
associated with, your firm of such payment, unless such Subscription Agreement
and payment are first forwarded to another of your offices for internal
supervisory review (which shall take place within the aforementioned time
period), in which event such other office shall complete its review and forward
such Subscription Agreement and payment to the above address no later than noon
of the next business day after its receipt thereof. (Notwithstanding the
foregoing, any investor's check not properly completed as described above shall
be promptly returned to such investor not later than the next business day
following your receipt of such check). Each subscription so received by the
Manager will subject to acceptance or rejection by it by the end of the next
business day. Each such subscription payment received by us and accepted by the
Manager will be transmitted, as soon as practicable, but in any event by the end
of the second business day following our receipt thereof, to The Chase Manhattan
Bank (the "Escrow Agent") for deposit in an interest-bearing bank account
insured by the Federal Deposit Insurance Corporation which shall be an escrow
account in the name of Escrow Agent pending the Initial Closing Date and will be
a segregated subscription account of the Company thereafter. We undertake to
promptly return directly to you for return to any of your customers whose
subscriptions are not accepted by the Manager, their Subscription Agreements
together with the related, uncashed subscription payments within two business
days of our receipt of same. Unless and until an event requiring a refund
occurs, a subscriber will have no right to withdraw his subscription payments
from escrow. The Manager has reserved the unconditional right to refuse to
accept, in whole or in part, any subscription and related payment and to refuse
to accept as a purchaser any person for any reason whatsoever or no reason.
Unless subscriptions for at least 1,200 Shares are received and accepted
by the Manager on or before the Termination Date, the Company will promptly
refund all subscription payments received by it in full with interest earned
thereon, if any, and without deduction, and the offering shall thereupon
terminate. Promptly after receiving and accepting subscriptions for 1,200 Shares
the Manager will notify the Escrow Agent that Schedule A to the Operating
Agreement has been amended to admit as Members subscribers (other than those who
are residents of the Commonwealth of Pennsylvania, which requires that a minimum
of 5,000 Shares must be sold before such residents' subscription payment may be
released from escrow) for whom subscriptions have been accepted, and the Escrow
Agent is to pay over promptly to the Company the amount of all of such
subscribers' subscription payments then on deposit and shall distribute interest
earned on each subscription payment to the subscribers entitled to interest
named on his subscription. The date on which such admission of Members shall
occur is hereinafter called the "Initial Closing Date." Under regulations of the
Commonwealth of Pennsylvania, until subscriptions for 5% (or $5,000,000) of the
Maximum Offering have been received, the subscription payments of Pennsylvania
residents must be held in escrow. After subscriptions for the residents of all
jurisdictions including Pennsylvania have been received, all remaining
subscriptions then being held in escrow will be released from escrow upon the
next Closing Date and the applicable subscribers admitted to the Company as
Members (in the manner described in the preceding sentence). Following the
Initial Closing Date, the Manager will continue to accept subscriptions for
additional Shares during the remainder of the Offering Period and to admit to
the Company as Members subscribers whose subscriptions are accepted. Such
admissions will take place from time to time as shall be determined by the
Manager, with the anticipation that Closings subsequent to the Initial Closing
will occur as frequently as daily.
(a) Sales Commissions in an amount equal to 8.0% of the total purchase
price of all Shares sold through your efforts, except for Share sales to
officers, employees and securities representatives of the Manager, its
Affiliates and each Selling Dealer ("Affiliated Members") as to which no
Sales Commissions are payable. Affiliated Members may purchase Shares for
a Net Share Price of $920.00 per Share. Purchases of Shares by Affiliated
Members shall be for investment purposes only and not with a view toward
resale and shall be limited to a maximum of 10% of the total shares sold.
(b) an Underwriting Fee equal to 2.0% of the Gross Share Price of every
Share actually sold by you, your registered representatives and registered
representatives of all Selling Dealers for your services in supervising
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the sale of Shares and to reimburse you, on a non-accountable basis, for
wholesaling fees and expenses of the Sponsor and
(c) reimbursement, on a fully accountable basis, for bona fide due
diligence fees and expenses actually incurred by your firm in an amount
not exceeding the lesser of (A) 1/2 of 1% of the Gross Offering Proceeds
or (B) the maximum amount permitted to be paid under the NASD Conduct
Rules.
The total marketing compensation to be paid to you in connection with the
offering for sale of Shares of the Company, including Sales Commissions (equal
to 8.0% of the Gross Offering Proceeds of all Shares sold by you or your
representatives) and Underwriting Fees (equal to 2.0% of the Gross Offering
Proceeds of all Shares sold) shall not exceed 10.0% of the Gross Offering
Proceeds from sale of Shares and the total of such Sales Commissions,
Underwriting Fees and reimbursable due diligence fees and expenses (if any),
shall not exceed 10.5% of the Gross Offering Proceeds from sale of Shares.
All such compensation will be paid by the Company within 30 days after
each Closing Date in respect of subscriptions submitted by investors who were
admitted to the Company on such Closing Date. In addition, you will be entitled
to reimbursement, on a fully accountable basis, for bona fide due diligence fees
and expenses actually incurred by your firm in an amount not exceeding the
lesser of (a) 1/2 of 1% of the Gross Offering Proceeds or (b) the maximum amount
permitted to be paid under the National Association of Securities Dealers, Inc.
(the "NASD")'s Rules of Fair Practice (the "NASD Rules"). Notwithstanding the
foregoing, no compensation will be paid in respect of subscriptions (or portions
thereof) which have been rejected by the Manager, or in the event the Minimum
Offering for 1,200 Shares is not successfully completed.
Sales Commissions with respect to Shares actually sold by you or your
registered representatives and Underwriting Fees with respect to all Shares sold
(by you or by any Selling Dealers) will be due and payable to you within 30 days
of each Closing Date (as hereinafter defined) on which the purchasers of such
Shares are admitted as Members and, to the extent that such commissions are
advanced (which they shall be only for bona fide transactions as referenced in
Rule 2810 of the NASD's Conduct Rules) prior to a Closing Date (with respect to
sales of Shares actually sold by you), such payments shall be deemed advances
which shall be returnable by you, in the event that, for any reason, such
Closing Date does not occur. "Qualified Shares" shall mean only those Shares for
which the particular state in which the Shares are sold does not (i) require
that more than 1,200 Shares be sold before subscribers from such state may be
admitted as Members or (ii) prohibit the payment of commissions with respect to
sales of such Shares, provided, however, when the aggregate number of Shares
sold exceeds the requirements of the particular stare with respect to (i) and/or
(ii) above, such Shares shall become Qualified Shares.
3. Termination of Agreement. The provision of this Agreement relating to
the offering of the Shares shall terminate as to the Company upon the completion
of the Offering Period, and may be terminated by you or us as specified in
Section 10 of this Agreement, subject to the survival of all provisions hereof
which by their nature are intended to survive termination of this Agreement.
4. Limitations on Payments. You agree that neither you nor any salesperson
under your control shall directly or indirectly pay or award any finder's fees,
commissions or other compensation to any person engaged by a potential investor
for investment advice as an inducement to such advisor to advise the purchase of
Shares; provided, however, that this provision shall not prohibit the normal
sales commission payable to any properly licensed person for selling Shares. In
addition, you agree not to receive any rebates or give-up or participate in any
reciprocal business arrangements (other than the securities distribution
arrangements specified in the Prospectus) which would violate any restriction on
the Company contained in the Prospectus.
5. Supplementary Sales Material. You agree that you will not use any
supplementary sales materials other than the Prospectus (including, inter alia
transmittal letters, underwriting memoranda, summary descriptions, graphics,
supplemental exhibits, media advertising, charts, pictures, written scripts or
outlines), whether prepared to solicit sales to prospective investors or for the
exclusive use of you and your personnel, except as supplied by the Company and
described under the caption "Supplemental Literature" in the Prospectus, or
otherwise specifically described in a written advice from the Company
authorizing the type and manner of use. The use of any such other supplementary
sales material is expressly prohibited except to the extent specified in any
such written advice.
6. Right To Sell. Notwithstanding any information furnished or any action
taken by us in that connection, we shall have no obligation or liability with
respect to the registration or qualification of the Shares in any jurisdiction
or the qualification or right of you or any Selling Dealer to sell or advertise
them therein.
7. Limited Obligations Nothing herein contained shall constitute a
partnership, association or other separate entity or partners between or among
you, and/or any Selling Dealer and the Company, or with each other, but you
shall be responsible for your share of any liability or expense based on any
claim to the contrary. We shall not be
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under any liability to you, except for obligations expressly assumed in this
Agreement and any liabilities under the Securities Act of 1933 (the "Act"), and
no other obligations on our part shall be implied hereby or inferred herefrom.
(a) Notwithstanding anything to the contrary provided hereinbelow, the
Company will indemnify and hold you harmless in the manner and solely to
the extent specified in Section 6 of the Operating Agreement (the terms of
which are incorporated herein by reference) against any losses (including
any claims of any Selling Dealers), damages or liabilities, joint or
several, to which you may become subject as a result of entering into, or
performing your duties under this Agreement.
(b) You agree to indemnify and hold harmless ICON Capital Corp., in its
capacity as General Partner of the Company ("ICON") and the Company against
any losses, claims, damages or liabilities to which ICON and the Company
may become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, or
arise out of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein in light of the circumstances under which they
were made not misleading in each case to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission was
made in the Registration Statement or any Preliminary Prospectus or the
Prospectus or any amendment or supplement in reliance upon and in
conformity with written information furnished to ICON by you expressly for
use therein; and to reimburse the Company in connection with investigating
or defending any such action or claims.
The indemnity agreement in this paragraph (b) shall be in
addition to any liability which you may otherwise have and shall extend, upon
the same terms and conditions, to each partner of the Company, and to each
person, if any, who controls the Company within the meaning of the Act.
(c) Promptly after receipt by an indemnified party under paragraph (a)
or (b) above of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under such paragraph, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may
have to any indemnified party otherwise than under such paragraph. In case
any such action shall be brought against any indemnified party, and it
shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in, and to the extent
that it shall wish, jointly with any other indemnifying party, similarly
notified, to assume the defense thereof, with counsel satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
paragraph for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than
reasonable costs of investigation.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in subsection
(a) of this Section 6 is unavailable in accordance with its terms, the
Company and you shall contribute to the aggregate losses, claims, damages
and liabilities of the nature contemplated by said indemnity agreement
incurred by the Company and you (or any controlling person), in such
proportions as is appropriate to reflect the relative benefits received by
the Company on the one hand and you on the other from the offering of the
Shares; provided, however, that if such allocation is not permitted by
applicable law or if the indemnified party failed to receive the notice
required under subsection (a) of this Section 6 or is not entitled to
receive the indemnification provided for in subsection (a) of this Section
6 because of the second provision thereof, then the relative fault of the
Company and you in connection with the statement or omissions which
resulted in such losses, claims, damages and liabilities and other relevant
equitable considerations will be considered together with such relative
benefits. The relative benefits received by the Company on the one hand and
you on the other shall be deemed to be in the same proportion as the total
proceeds from the Offering (net of Underwriting Fees and Sales Commissions
but before deducting the 0 & 0 Expense Allowance or Reserves) received by
the Company bears to the Underwriting Fees and Sales Commissions received
by you, as set forth in the Table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things,
whether in the case of an untrue statement or alleged untrue statement of a
material fact, such statement or omission relates to information supplied
by the Company or you and the party's relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission including, with respect to you, the extent to which such losses,
claims, damages or liabilities (or actions in respect thereof) with respect
to any preliminary prospectus result from the fact that you sold Shares to
a person to whom there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Prospectus (excluding documents
incorporated by reference) or of the Prospectus as then amended or
supplemented (excluding documents incorporated by reference) if the Company
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has complied with Section 5 hereof. The amount paid or payable by the
indemnified party as a result of the losses, claims, damages or liabilities
referred to above in this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending against or appearing as a third
party witness in any such action or claim. Notwithstanding the provisions
of this subsection (d), you shall not be required to contribute any amount
in excess of the amount by which the total price at which the Shares
purchased by you were offered to the public exceeds the amount of any
damages which you have otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation within the meaning of Section
11(f) of the Act shall be entitled to contribution from any person who is
not guilty of such fraudulent misrepresentation. In addition, certain
states may also impose limitations or indemnifications given or received in
a public offering. For purposes of this subsection (d), each person, if
any, who controls you within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act shall have the same rights to contribution
as you shall have.
8. Representations. Warranties and Covenants of Dealer-Manager.
(a) Qualification of Dealer-Manager and its Representatives. You
represent, warrant and covenant that you are, and during the Offering
Period will continue to be, (i) a member in good standing of the NASD and
(ii) registered as a securities broker-dealer in those jurisdictions
wherein members of, or persons associated with, your firm will offer or
sell the Shares. You also represent, warrant and covenant that, during the
Offering Period, you will only permit members of, or persons associated
with, your firm to offer or sell Shares if such persons are duly registered
or licensed to sell direct participation program investments by, and in
good standing with, the NASD and those jurisdictions wherein they will
offer or sell Shares. You hereby certify that neither your firm nor any
member of your firm has been subject to fine, a consent decree or
suspension of your or their licenses within the last three (3) years, for
violation of federal or state securities or regulations. You also hereby
certify that you will promptly advise the President of ICON of any civil or
administrative proceedings during the Offering Period involving alleged
violations of such laws or regulations.
(b) Investor Suitability and Minimum Investment. You further represent,
warrant and covenant that no member of, or person associated with your
firm, shall offer or sell Shares in any jurisdiction except to investors
who satisfy the investor suitability and minimum investment requirements
under the applicable provisions of the Prospectus or the laws of such
jurisdiction (if they are more restrictive). You hereby acknowledge your
firm's obligations pursuant to NASD Rules, in general and Conduct Rule 2810
in particular. Specifically, you agree to ensure that, in recommending the
purchase, sale or exchange of Shares to an investor, each member of, or
person associated with, your firm shall have reasonable grounds (as
required by Conduct Rule 2810) to believe, on the basis of information
obtained from the investor concerning his investment objectives, other
investments, financial situation and needs, and any other information known
to such member of, or person associated with, your firm, that (i) the
investor is or will be in a financial position appropriate to enable him to
realize to a significant extent the benefits described in the Prospectus,
including the tax benefits to the extent they are a significant aspect of
the Company; (ii) the investor has a fair market net worth sufficient to
sustain the risks inherent in an investment in Shares in the amount
proposed, including loss, and lack of liquidity of, of such investment; and
(iii) an investment in Shares is otherwise suitable for such investor. You
further represent, warrant and covenant that you will: (x) require each
member of, or person associated with your firm, to make diligent inquiry as
to the suitability and appropriateness of an investment in Shares from each
proposed investor, (y) retain in your records for a period equal to the
longer of (A) six years from the date of the applicable sale of Shares or
(B) five years from the end of the Offering Period (or such longer period
as is provided in Section 8 hereof), and (z) make available to us and the
Company, upon request, (and upon your firm's receipt of an appropriate
document subpoena from one of the following, to representatives of the SEC,
NASD and applicable state securities administrators) documents disclosing
the basis upon which the determination as to suitability was reached as to
each purchaser of Shares pursuant to a subscription solicited by your firm,
whether such records relate to accounts which have been closed, accounts
which are currently maintained, or accounts hereafter established. You
shall not purchase any Shares for a discretionary account without obtaining
the prior written approval of your customer and his signature on a
Subscription Agreement.
(c) Due Diligence: Adequate Disclosure. By signing below and signing
each Subscription Agreement, you hereby acknowledge (or reaffirm, in the
latter case) that, prior to entering into this Agreement, your firm
satisfied itself that it has reasonable grounds to believe, based on
information and other relevant materials made available to you by the
Company, that all material facts are adequately and accurately disclosed
and provide a basis for evaluation of an investment in the Shares (as is
provided in Conduct Rule 2810). In determining the adequacy of the
disclosed facts you shall obtain information on material facts relating at
a minimum to the following, if relevant in view of the nature of the
Company: (i) items of compensation; (ii) physical properties; (iii) tax
aspects; (iv) financial stability and experience of the Manager;
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(v) the Company's conflicts and risk factors and (vi) appraisals and other
pertinent reports. You further acknowledge that you did not, and may not,
rely upon the investigation conducted by us in our capacity as
Dealer-Manager (because of our affiliation with the Manager) or by any
other Selling Dealers, unless in the latter case all of the conditions set
forth in Conduct Rule 2810 have been met.
(d) Compliance with the NASD Rules of Fair Practice. You also hereby
agree that you will require each member of, or person associated with, your
firm to inform any prospective purchaser of Shares, prior to his
subscription for Shares, of all pertinent facts relating to the liquidity
and marketability of an investment in Shares during the term of the
investment (as provided in Conduct Rule 2810). You also hereby agree to
fully comply with all pertinent sections of Article III of the NASD Rules,
including, without limitation, Sections 8, 24 and 36 thereof.
(e) Record-Keeping and Disclosure. You further agree to keep such
records with respect to each investor, his suitability and the amount of
Shares sold and retain such records for such period of time as may be
required by the U.S. Securities and Exchange Commission (the "Commission"),
any state securities commission, the NASD or by the Company. You agree to
obtain and to forward to the Company any representation letters or related
documents, if any, as are set forth in the Subscription Instructions in
Exhibit C to the Prospectus.
(f) Delivery of the Prospectus in connection with sale of Shares. You
hereby represent, covenant and agree that no representative of your firm
shall sell, and your firm shall not endorse and forward any Subscription
Agreement to signify the completion of a subscription for, any Shares
unless, in connection therewith, the proposed subscriber for such Shares
has received a current copy of the Prospectus at or prior to the time that
such person has signed his or her Subscription Agreement. Your firm
acknowledges and agrees that such proposed subscriber shall not be admitted
to the Company and Shares issued until the later of (a) the next succeeding
Closing Date or (b) five business days after the date such proposed
subscriber received a copy of the Prospectus (which shall be determined by
the Manager by the date on which such proposed subscriber signed the
Subscription Agreement).
(g) Compliance with SEC Reg. 240. 15c2-8 You hereby (a) represent that
neither you nor any person associated with your firm solicited customers'
orders for Shares prior to the Effective Date; (b) represent and agree to
take all reasonable steps to make available a copy of the final Prospectus
relating to such securities to each person associated with your firm who is
expected, after the Effective Date, to solicit customers orders for Shares
prior to the making of any such solicitation by such associated persons;
(c) agree to take reasonable steps, as managing underwriter of this
Offering, to furnish each Selling Dealer with sufficient copies, as
requested by them, of the final Prospectus to enable them to comply with
paragraphs (b), (c), (d) and (e) of SEC Reg. 240. 15c2-8 and the prospectus
delivery requirements of Section 5(b)(l) and (2) of the Securities Act of
1933; and (d) agree that neither you, nor any person associated with your
firm, will furnish Prospectuses to any person in any state (e.g. in any
state (i) listed as not cleared on the Blue-Sky Survey of the Sponsor or
(ii) in which your firm or any person associated with your firm who
solicits offers to buy or offers to sell Shares is not currently
registered); provided, however, that this provisions is not to be construed
to relieve you from complying with the requirements of Section 5(b)(l) and
(2) of the Securities Act of 1933. You hereby acknowledge that Prospectuses
shall not be furnished by you or any person associated with your firm to
any prospective customer while the registration statement is subject to an
examination, proceeding, or stop order pursuant to Section 8 of the
Securities Act of 1933.
(h) A registration statement, including a form of the prospectus and one
or more amendments thereto with respect to the Shares has been (i) prepared
by the Company in conformity with the requirements of the Act and the rules
and regulations (the "Rules and Regulations") of the Commission thereunder
and (ii) filed with the Commission under the Act. Copies of the
registration statement and each amendment heretofore filed or proposed to
be filed (and of each related preliminary prospectus) have been delivered
to you. The registration statement and the prospectus, as amended at the
time the registration statement becomes effective (the "Effective Date"),
are herein respectively called the "Registration Statement" and
"Prospectus," except that if the prospectus first filed by the Company
pursuant to Rule 424(b) under the Act shall differ from the Prospectus, the
term "Prospectus" shall also include the Prospectus filed pursuant to Rule
424(b).
(i) The Commission has not issued any order preventing or suspending the
use of any preliminary Prospectus. The Registration Statement and the
Prospectus and any further amendments or supplements thereto will, when
they become effective, conform in all material respects to the requirements
of the Act and the Rules and Regulations of the Commission thereunder and
will not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein in light of the circumstances under which they were made
not misleading; provided, however, that the Company makes no representation
or warranty as to statements or omissions made in reliance upon and in
conformity with written information furnished to the Company by you
expressly for use therein.
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(j) ICON has been duly incorporated in the State of Connecticut and is
validly existing and in good standing under the laws of the State of
Connecticut with power and authority (corporate and other) to conduct its
business and own its properties as described in the Prospectus.
(k) The Company has been duly organized and is validly existing and in
good standing under the laws of the State of Delaware with power and
authority to conduct its business as described in the Prospectus.
(l) On each Closing Date (as hereinafter defined), the Shares will
conform to all statements with regard thereto contained in the Prospectus,
and the Company will have the authorized and issued capitalization as set
forth in the Prospectus.
(m) Except as reflected in or contemplated by the Registration Statement
or the Prospectus, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there has not been
any material adverse change in the condition of the Company or ICON,
financial or otherwise, or any transactions entered into by the Company or
ICON, other than transactions in the ordinary course of business, which are
not required to be disclosed in the Registration Statement or the
Prospectus.
(n) The respective financial statements contained in the Registration
Statement and the Prospectus fairly present the financial condition of the
Company and ICON as of the dates specified; and such financial statements
have been prepared in accordance with generally accepted accounting
principles consistently maintained throughout the periods involved; and
KPMG LLP, who have certified such financial statements, are independent
public accountants as required by the Act and Rules and Regulations.
(o) No consent, approval, authorization or other order of any
governmental authority is required in connection with the execution or
delivery by the Company of this Agreement or the issuance and sale by the
Company of the Shares, except such as may be required under the Act or
state securities laws.
(p) There are no actions, suits or proceedings pending, or to the
knowledge of the Company, threatened against the Company, ICON or any of
their property, at law or in equity or before or by any federal or state
Commission, regulatory body or administrative agency or other governmental
body, domestic or foreign, in which any adverse decision might have a
materially adverse effect on the business or property of the Company or
ICON.
(q) The execution and delivery of this Agreement, the consummation of
the transactions herein contemplated and compliance with the terms of this
Agreement by the Company will not conflict with or constitute a default
under any charter, by-law, indenture, mortgage, deed of trust, lease or
other agreement or instrument to which the Company or ICON is a party, or
any law, order, rule or regulation, writ, injunction or decree of any
government, governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Company or ICON or any of their property,
except to the extent that the enforceability of the indemnity and/or
contribution provisions contained in Section 6 of this Agreement may be
limited under the applicable securities laws and subject to the provisions
and application of any insolvency, bankruptcy or similar laws for
(r) The Company has full legal right, power and authority to enter into
this Agreement and to perform the transactions contemplated hereby, except
to the extent that the enforceability of the indemnity and/or contribution
provisions contained in Section 6 of this Agreement may be limited under
applicable securities laws.
(s) At the time of the delivery of the Shares, the Shares will have been
duly authorized and validly issued, and upon payment therefor, will be
fully paid and non-assessable and will conform to the description thereof
contained in the Prospectus.
(t) There are no contracts or other documents which are required to be
filed as Exhibits as to the Registration Statement which have not been so
filed.
10. Notice of Termination. This Agreement may be terminated by you or by
us by giving written, cable or telex notice 10 days in advance of your or our
intention to terminate; provided, however, that any rights to receive
commissions in respect of sales of Shares made prior to such termination and any
rights to indemnification or contribution hereunder, and all representations,
covenants and agreements contained in this Agreement which, by their terms,
expire or will need to be performed after the termination date of this Agreement
(including, but not limited to, the suitability record retention and disclosure
covenants contained in Section 8(b) above), shall survive such termination.
7
11. Governing Law. This Agreement is being delivered in the State of New
York and shall be construed and enforced in accordance with and governed by the
laws of such State.
Please acknowledge acceptance of the terms hereof by signing the two
enclosed copies of this letter and returning the same to us, whereupon this
letter and your acceptance hereof shall constitute a binding agreement between
us as of the date first above written. We will then supply to you for your files
one of such copies signed by the Company and the Manager.
The Partnership:
ICON Income Fund Nine, LLC.
By: ICON Capital Corp., its Manager
By: Xxxx X. Xxxxx
---------------------------------------------
Xxxx X. Xxxxx, President
The Dealer-Manager:
ICON Securities Corp.
By: Xxxxxx X. Xxxxxx
---------------------------------------------
Xxxxxx X. Xxxxxx, Executive Vice President
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Jurisdictions in which Selling Dealer is Qualified
(_) Alabama (_) Kentucky (_) North Dakota
(_) Alaska (_) Louisiana (_) Ohio
(_) Arizona (_) Maine (_) Oklahoma
(_) Arkansas (_) Maryland (_) Puerto Rico
(_) California (_) Massachusetts (_) Rhode Island
(_) Colorado (_) Michigan (_) South Carolina
(_) Connecticut (_) Minnesota (_) South Dakota
(_) Delaware (_) Mississippi (_) Tennessee
(_) District of Columbia (_) Missouri (_) Texas
(_) Florida (_) Montana (_) Utah
(_) Georgia (_) Nebraska (_) Vermont
(_) Hawaii (_) Nevada (_) Virginia
(_) Idaho (_) New Hampshire (_) Washington
(_) Illinois (_) New Jersey (_) West Virginia
(_) Indiana (_) New Mexico (_) Wisconsin
(_) Iowa (_) New York (_) Wyoming
(_) Kansas (_) North Carolina
The Dealer-Manager:
ICON Securities Corp.
By: Xxxxxx X. Xxxxxx
------------------------
Xxxxxx X. Xxxxxx,
Executive Vice President
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