EARLYBIRDCAPITAL, INC.
000 XXXXX XXXXXX
00XX XXXXX
XXX XXXX, XXX XXXX 00000
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SELECTED DEALERS AGREEMENT
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Dear Sirs:
1. Registration under the Securities Act of 1933, as amended
("Act"), of the 3,000,000 Units* of Chardan China Acquisition Corp. ("Company"),
as more fully described in the Preliminary Prospectus, dated ___________, 2004,
and in the final prospectus ("Prospectus") which will be forwarded to you, will
become effective in the near future. We, as the Underwriters, are offering
certain of the Units for purchase by a selected group of dealers ("Selected
Dealers") on the terms and conditions stated herein.
Authorized Public Offering Price: $6.00 per Unit.
Dealers' Selling Concession: Not to exceed $0.__ per Unit payable upon
termination of this Agreement, except as
provided below. We reserve the right not to
pay such concession on any of the Units
purchased by any of the Selected Dealers
from us and repurchased by us at or below
the price stated above prior to such
termination.
Reallowance: You may reallow not in excess of $0.__ per
Unit as a selling concession to dealers who
are members in good standing of the National
Association of Securities Dealers, Inc.
("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.
Delivery and Payment: Delivery of the Units shall be made on or
about ________, 2004 or such later date as
we may advise on not less than one day's
notice to you, at the office of
EarlyBirdCapital, Inc., 000 Xxxxx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at
such other place as we shall specify on not
less than one day's notice to you. Payment
for the Units 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, by a certified or
official bank check in New York Clearing
House Funds payable to the order of
EarlyBirdCapital, Inc.
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* Plus the over-allotment option available to the Underwriters to purchase up to
an additional 450,000 Units.
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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 our discretion for
a period or periods not to exceed in the
aggregate 30 additional days. We may
terminate this Agreement, whether or not
extended, at any time without notice.
2. Any of the Units purchased by you hereunder are to be
offered by you to the public at the public offering price, except as herein
otherwise provided and except that a reallowance from such public offering price
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 you that they will promptly reoffer such Units at the public offering price
and will abide by the conditions with respect to foreign banks, dealers and
institutions set forth in paragraph 9 below.
3. You, by becoming a member of the Selected Dealers, agree
(a) upon effectiveness of the Registration Statement and your receipt of the
Prospectus, to take up and pay for the number of Units allotted and confirmed to
you, (b) not to use any of the Units to reduce or cover any short position you
may have, (c) upon our request, to advise us of the number of Units purchased
from us as manager of the Selected Dealers remaining unsold by you and to resell
to us any or all of such unsold Units at the public offering price stated above,
less all or such part of the concession allowed you as we may determine, and (d)
to make available a copy of the Prospectus to all persons who on your behalf
will solicit orders for the Units 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. You confirm that you have delivered all
preliminary prospectuses and revised preliminary prospectuses, if any, required
to be delivered under the provisions of Rule 15c2-8 and agree to deliver all
copies of the Prospectus required to be delivered thereunder. We have heretofore
delivered to you such preliminary prospectuses as have been required by you,
receipt of which is hereby acknowledged, and will deliver such further
prospectuses as may be requested by you.
5. You agree that until termination of this Agreement you
will not make purchases or sales of the Units 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 Units 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
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the securities or blue sky laws of which we believe the Units 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 Units in any jurisdiction. We
have caused to be filed a Further State Notice relating to such of the Units 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 Units were made by such member, the number of Units 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 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 Units 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.
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. EarlyBirdCapital, Inc. shall be the Representative of
the several underwriters 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 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
Underwriting Agreement 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, except
our own want of good faith.
12. If for federal income tax purposes the Selected Dealers,
among themselves or with the several Underwriters, should be deemed to
constitute a partnership, then you elect to be excluded from the application of
Subchapter K, Chapter 1, Subtitle A of the Internal Revenue Code of 1986, as
amended, and you agree not to take any position inconsistent with such
selection. You authorize us, in our discretion, to execute and file on your
behalf such evidence of such election as may be required by the Internal Revenue
Service.
13. All communications from you shall be addressed to
EarlyBirdCapital, Inc. at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxx X. Xxxxxxxx, Chairman. Any
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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 to which this letter is
mailed. This Agreement shall be construed in accordance with the laws of the
State of New York without giving effect to conflict of laws. Time is of the
essence in this Agreement.
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,
EARLYBIRDCAPITAL, INC.
By:
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Xxxxxx Xxxxxx
Managing Director
We accept membership in the Selected Dealers on the terms
specified above.
Dated: , 2004
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(Selected Dealer)
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By:
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Name:
Title:
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