EXHIBIT 10.7
SELECTED DEALER AGREEMENT
Ladies and Gentlemen:
________________________________, as the dealer manager ("Dealer
Manager") for Fidelity Dividend Capital Inc. (the "Company"), a Maryland
corporation, invites you (the "Dealer") to participate in the distribution of
shares of common stock ("Shares") of the Company subject to the following terms:
I. Dealer Manager Agreement
The Dealer Manager has entered into a Dealer Manager Agreement with the
Company dated ___________, 2004, in the form attached hereto as Exhibit "A." By
your acceptance of this Agreement, you will become one of the Dealers referred
to in such Agreement between the Company and the Dealer Manager and will be
entitled and subject to the indemnification provisions contained in such
Agreement, including the provisions of Section 4 of such Agreement wherein the
Dealers severally agree to indemnify and hold harmless the Company, the Dealer
Manager and each officer and director xxxxxxx, and each person, if any, who
controls the Company and the Dealer Manager within the meaning of the Securities
Act of 1933, as amended. Except as otherwise specifically stated herein, all
terms used in this Agreement have the meanings provided in the Dealer Manager
Agreement. The Shares are offered solely through broker-dealers who are members
of the National Association of Securities Dealers, Inc. ("NASD").
Dealer hereby agrees to use its best efforts to sell the Shares for
cash on the terms and conditions stated in the Prospectus. Nothing in this
Agreement shall be deemed or construed to make Dealer an employee, agent,
representative or partner of the Dealer Manager or of the Company, and Dealer is
not authorized to act for the Dealer Manager or the Company or to make any
representations on their behalf except as set forth in the Prospectus and such
other printed information furnished to Dealer by the Dealer Manager or the
Company to supplement the Prospectus ("supplemental information").
II. Submission of Orders
Those persons who purchase Shares will be instructed by the Dealer to
make their checks payable to "Fidelity Dividend Capital Inc." Any Dealer
receiving a check not conforming to the foregoing instructions shall return such
check directly to such subscriber not later than the end of the next business
day following its receipt. Checks received by the Dealer which conform to the
foregoing instructions shall be transmitted for deposit pursuant to one of the
methods in this Article II. Transmittal of received investor funds will be made
in accordance with the following procedures:
Where, pursuant to the Dealer's internal supervisory procedures,
internal supervisory review is conducted at the same location at which
subscription documents and checks are received from subscribers, checks will be
transmitted in care of the Dealer Manager by the end of the next business day
following receipt by the Dealer for deposit to Fidelity Dividend Capital , Inc.
Where, pursuant to the Dealer's internal supervisory procedures, final
and internal supervisory review is conducted at a different location, checks
will be transmitted by the end of the next business day following receipt by the
Dealer to the office of the Dealer conducting such final internal supervisory
review (the "Final Review Office"). The Final Review Office will in turn by the
end of the next business day following receipt by the Final Review Office,
transmit such checks for deposit by the escrow agent appointed for the Offering.
III. Pricing
Shares shall be offered to the public at the offering price of $10.00
per Share payable in cash. Except as otherwise indicated in the Prospectus or in
any letter or memorandum sent to the Dealer by the Company or Dealer Manager, a
minimum initial purchase of 200 Shares is required. Except as otherwise
indicated in the Prospectus, additional investments may be made in cash in
minimal increments of at least 10 Shares. The Shares are non-assessable. Dealer
hereby agrees to place any order for the full purchase price.
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IV. Dealers' Commissions
Except for discounts described in or as otherwise provided in the "Plan
of Distribution" section of the Prospectus, the Dealer's selling commission
applicable to the total public offering price of Shares sold by Dealer which it
is authorized to sell hereunder is 7% of the gross proceeds of Shares sold by it
and accepted and confirmed by the Company, which commission will be paid by the
Dealer Manager. For these purposes, a "sale of Shares" shall occur if and only
if a transaction has closed with a securities purchaser pursuant to all
applicable offering and subscription documents and the Company has thereafter
distributed the commission to the Dealer Manager in connection with such
transaction. The Dealer hereby waives any and all rights to receive payment of
commissions due until such time as the Dealer Manager is in receipt of the
commission from the Company. The Dealer affirms that the Dealer Manager's
liability for commissions payable is limited solely to the proceeds of
commission's receivable associated therewith. In addition, as set forth in the
Prospectus, the Dealer Manager may re-allow out of its dealer manager fee a
marketing fee and due diligence expense reimbursement of up to 1.5% of the gross
proceeds of Shares sold by Dealers participating in the offering of Shares,
based on such factors as the number of Shares sold by such participating Dealer,
the assistance of such participating Dealer in marketing the offering of Shares,
and bona fide conference fees incurred.
The parties hereby agree that the foregoing commission is not in excess
of the usual and customary distributors' or sellers' commission received in the
sale of securities similar to the Shares, that Dealer's interest in the offering
is limited to such commission from the Dealer Manager and Dealer's indemnity
referred to in Section 4 of the Dealer Manager Agreement, that the Company is
not liable or responsible for the direct payment of such commission to the
Dealer.
V. Payment
Payments of selling commissions will be made by the Dealer Manager (or
by the Company as provided in the Dealer Manager Agreement) to Dealer within 30
days of the receipt by the Dealer Manager of the gross commission payments from
the Company.
VI. Right to Reject Orders or Cancel Sales
All orders, whether initial or additional, are subject to acceptance by
and shall only become effective upon confirmation by the Company, which reserves
the right to reject any order. Orders not accompanied by a Subscription
Agreement and Signature Page and the required check in payment for the Shares
may be rejected. Issuance and delivery of the Shares will be made only after
actual receipt of payment therefor. If any check is not paid upon presentment,
or if the Company is not in actual receipt of clearinghouse funds or cash,
certified or cashier's check or the equivalent in payment for the Shares within
15 days of sale, the Company reserves the right to cancel the sale without
notice. In the event an order is rejected, canceled or rescinded for any reason,
the Dealer agrees to return to the Dealer Manager any commission theretofore
paid with respect to such order.
VII. Prospectus and Supplemental Information
Dealer is not authorized or permitted to give and will not give, any
information or make any representation concerning the Shares except as set forth
in the Prospectus and supplemental information. The Dealer Manager will supply
Dealer with reasonable quantities of the Prospectus, any supplements thereto and
any amended Prospectus, as well as any supplemental information, for delivery to
investors, and Dealer will deliver a copy of the Prospectus and all supplements
thereto and any amended Prospectus to each investor to whom an offer is made
prior to or simultaneously with the first solicitation of an offer to sell the
Shares to an investor. The Dealer agrees that it will not send or give any
supplements thereto and any amended Prospectus to that investor unless it has
previously sent or given a Prospectus and all supplements thereto and any
amended Prospectus to that investor or has simultaneously sent or given a
Prospectus and all supplements thereto and any amended Prospectus with such
supplemental information. Dealer agrees that it will not show or give to any
investor or prospective investor or reproduce any material
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or writing which is supplied to it by the Dealer Manager and marked "dealer
only" or otherwise bearing a legend denoting that it is not to be used in
connection with the sale of Shares to members of the public. Dealer agrees that
it will not use in connection with the offer or sale of Shares any material or
writing which relates to another Company supplied to it by the Company or the
Dealer Manager bearing a legend which states that such material may not be used
in connection with the offer or sale of any securities other than the Company to
which it relates. Dealer further agrees that it will not use in connection with
the offer or sale of Shares any materials or writings which have not been
previously approved by the Dealer Manager. Each Dealer agrees, if the Dealer
Manager so requests, to furnish a copy of any revised preliminary Prospectus to
each person to whom it has furnished a copy of any previous preliminary
Prospectus, and further agrees that it will itself mail or otherwise deliver all
preliminary and final Prospectuses required for compliance with the provisions
of Rule 15c2-8 under the Securities Exchange Act of 1934. Regardless of the
termination of this Agreement, Dealer will deliver a Prospectus in transactions
in the Shares for a period of 90 days from the effective date of the
Registration Statement or such longer period as may be required by the
Securities Exchange Act of 1934. On becoming a Dealer, and in offering and
selling Shares, Dealer agrees to comply with all the applicable requirements
under the Securities Act of 1933, and the Securities Exchange Act of 1934.
Notwithstanding the termination of this Agreement or the payment of any amount
to Dealer, Dealer agrees to pay Dealer's proportionate share of any claim,
demand or liability asserted against Dealer and the other Dealers on the basis
that Dealers or any of them constitute an association, unincorporated business
or other separate entity, including in each case Dealer's proportionate share of
any expenses incurred in defending against any such claim, demand or liability.
VIII. License and Association Membership
Dealer's acceptance of this Agreement constitutes a representation to
the Company and the Dealer Manager that Dealer is a properly registered or
licensed broker-dealer, duly authorized to sell Shares under Federal and state
securities laws and regulations and in all states where it offers or sells
Shares, and that it is a member in good standing of the NASD. This Agreement
shall automatically terminate if the Dealer ceases to be a member in good
standing of such association. Xxxxxx agrees to notify the Dealer Manager
immediately if Dealer ceases to be a member in good standing of the NASD. The
Dealer Manager also xxxxxx agrees to abide by the Rules of Fair Practice of the
NASD and to comply with Rules 2730, 2740, 2420 and 2750 of the NASD Conduct
Rules.
IX. Limitation of Offer
Dealer will offer Shares only to persons who meet the financial
qualifications set forth in the Prospectus or in any suitability letter or
memorandum sent to it by the Company or the Dealer Manager and will only make
offers to persons in the states in which it is advised in writing that the
Shares are qualified for sale or that such qualification is not required. In
offering Shares, Dealer will comply with the provisions of the Rules of Fair
Practice set forth in the NASD Manual, as well as all other applicable rules and
regulations relating to suitability of investors, including without limitation,
the provisions of Article III.C. of the Statement of Policy Regarding Real
Estate Investment Trusts of the North American Securities Administrators
Association, Inc.
X. Termination
Dealer will suspend or terminate its offer and sale of Shares upon the
request of the Company or the Dealer Manager at any time and will resume its
offer and sale of Shares hereunder upon subsequent request of the Company or the
Dealer Manager. Any party may terminate this Agreement by written notice. Such
termination shall be effective 48 hours after the mailing of such notice. This
Agreement is the entire agreement of the parties and supersedes all prior
agreements, if any, between the parties hereto.
This Agreement may be amended at any time by the Dealer Manager by
written notice to the Dealer, and any such amendment shall be deemed accepted by
Dealer upon placing an order for sale of Shares after he has received such
notice.
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XI. Notice
All notices will be in writing and will be duly given to the Dealer
Manager when mailed to _______________________________, and to Dealer when
mailed to the address specified by Dealer herein.
XII. Attorney's Fees and Applicable Law
In any action to enforce the provisions of this Agreement or to secure
damages for its breach, the prevailing party shall recover its costs and
reasonable attorney's fees. This Agreement shall be construed under the laws of
the State of DELAWARe and shall take effect when signed by Dealer and
countersigned by the Dealer Manager.
THE DEALER MANAGER:
(Name of Dealor-Manager)
By:
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Name:
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Title:
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We have read the foregoing Agreement and we hereby accept and agree to the terms
and conditions therein set forth. We hereby represent that the list below of
jurisdictions in which we are registered or licensed as a broker or dealer and
are fully authorized to sell securities is true and correct, and we agree to
advise you of any change in such list during the term of this Agreement.
1. Identity of Dealer:
Name:
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Type of entity:
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(corporation, partnership or proprietorship)
Organized in the State of:
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Licensed as broker-dealer in the following states:
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Tax I.D. #:
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2. Person to receive notices delivered pursuant to the Selected Dealer
Agreement.
Name:
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Company:
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Address:
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City, State and Zip Code:
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Telephone No.:( )
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Telefax No.:( )
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AGREED TO AND ACCEPTED BY THE DEALER:
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(Dealer's Firm Name)
By:
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Signature
Name:
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Title:
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