DEALER MANAGER AGREEMENT
THIS AGREEMENT, dated as of February __, 2006, is made by and between
COMMONWEALTH INCOME & GROWTH FUND, INC., a Pennsylvania corporation (the
"Company"); and COMMONWEALTH CAPITAL SECURITIES CORP., a Pennsylvania
corporation (the "Dealer Manager").
WHEREAS, the company proposes to offer and sell up to an aggregate of
2,500,000 units (the "Units") in COMMONWEALTH INCOME & GROWTH FUND VI, a
Pennsylvania limited partnership ("the Limited Partnership") to the public
pursuant to a public offering;
WHEREAS, the Dealer Manager is registered with the National Association
of Securities Dealers, Inc. as a broker dealer, and is presently or, prior to
any offers or sales of Units, will be licensed in all fifty states of the United
States, the District of Columbia, and the Commonwealth of Puerto Rico as a
broker dealer qualified to offer and sell to the public securities of the type
represented by the Units; and
WHEREAS, the Company desires to retain the Dealer Manager to use its
best efforts to sell the Units and to manage the sale by others of the Units,
and the Dealer Manager is willing and desires to serve as the Dealer Manager for
the Company for the sale of the Units upon the terms and conditions set forth in
this Agreement.
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the Company and the Dealer
Manager agree as follows:
SECTION 1
DEFINITIONS
Whenever used in this agreement, the following terms shall have the
following specified meanings.
1.1 "NASD" means the National Association of Securities Dealers, Inc.
1.2 "Offering" means the offering of up to 2,500,000 Units of the
Limited Partnership to the public pursuant to the terms and conditions of the
Registration Statement.
1.3 "Offering Period" means the period commencing on the effective date
of the Registration Statement and ending on the earliest of the following: (i)
the later of one year after the initial date of the Prospectus or, at the
Company's election, two years after the initial date of the Prospectus; or (ii)
one year after the initial date of the Prospectus, if subscriptions for fewer
than 57,500 Units are received and accepted within such one year period.
1.4 "Participating Brokers" means those broker-dealers engaged by the
Dealer Manager to participate in the Offering pursuant to Paragraph 3.2
1.5 "Prospectus" means the final prospectus included in the Registration
Statement, pursuant to which the Company will offer Units to the public, as the
same may be amended or supplemented from time to time after the effective date
of the Registration Statement.
1.6 "Registration Statement" means the registration statement pursuant
to which the Company has registered the Units with the SEC as provided in the
Securities Act of 1933, as amended, as such registration statement may be
amended or supplemented from time to time.
1.7 "SEC" means the Securities and Exchange Commission.
1.8 "Units" means the Units of the Limited Partnership, par value $20.00
per unit, with a purchase price of $20.00 per unit. An aggregate of up to
2,500,000 Units will be offered pursuant to the Registration Statement.
1.9 "State Regulatory Authorities" means the commissions, departments,
agencies or other authorities in the fifty states of the United States, the
District of Columbia, and the Commonwealth of Puerto Rico which regulate the
offer and sale of securities.
1.10 "Company" means Commonwealth Income & Growth Fund, Inc.,
a Pennsylvania corporation.
1.11 "Dealer Manager" means Commonwealth Capital Securities Corp.,
a Pennsylvania corporation.
SECTION 2
APPOINTMENT
Subject to the terms and conditions set forth in this agreement, the
Company hereby appoints the Dealer Manager as the dealer manager of the Offering
to use its best efforts to sell up to 2,500,000 Units of the Limited Partnership
and to manage the sale by others of such Units for the Company's account. The
Dealer Manager hereby accepts such appointment.
SECTION 3
SALE OF UNITS
3.1 Best Efforts. The Dealer Manager shall use its best efforts during
the Offering period to sell or cause to be sold the Units in such quantities and
to such persons and in accordance with such terms as are set forth in this
Agreement, the Prospectus and the Registration Statement. Notwithstanding
anything herein to the contrary, the Dealer Manager shall have no obligation
under this Agreement to purchase any of the Units for its own account.
3.2 Association of Other Broker-Dealers. The Company hereby acknowledges
and agrees that the Dealer Manager may engage Participating Brokers to
participate in the Offering, provided that (i) all Participating Brokers are
registered with the NASD and are duly licensed by the State Regulatory
Authorities in the jurisdictions in which they will offer and sell Units or
exempt from broker-dealer registration with the NASD and the State Regulatory
Authorities, and (ii) all such engagements are evidenced by written agreements,
the terms and conditions of which substantially conform to the form of
Participating Broker Agreement approved by the Company and attached hereto as
Exhibit A (the "Participating Broker Agreement"). The Dealer Manager is
authorized to reallow so much of the commissions which it receives under
Paragraph 4.1 to Participating Brokers as it sees fit.
3.3 Suitability and Minimum Purchase Requirements.
(a) The Dealer Manager will use every reasonable effort, to the
extent it sells Units to investors, to assure that any such Units are sold only
to investors who:
(i) meet the investor suitability standards, including the
minimum income and net worth standard established by the Company, and minimum
purchase requirements set forth in the Registration Statement;
(ii) can reasonably benefit from the Company based on each
prospective investor's overall investment objectives and portfolio structure;
and
(iii) are able to bear the economic risk of the investment
based on each prospective investor's overall financial situation.
(b) The Dealer Manager will make the determinations required to
be made by it pursuant to Paragraph 3.3 (a) above based on the information it
has obtained from a prospective investor, including, at a minimum, but not
limited to, the prospective investor's age, investment objectives, investment
experience, income, net worth, financial situation, other investments of the
prospective investor, as well as any other pertinent factors deemed by the
Dealer Manager to be relevant.
(c) The Dealer Manager shall maintain such records evidencing
compliance with the determination of the investor suitability standards and
minimum purchase requirements set forth in the Registration Statement, as
required by Paragraphs 3.3(a) and 3.3(b) above for a period of not less than six
years, or for such greater time period as shall comply with all federal, state
and other regulatory requirements.
(d) In addition to the foregoing, the Dealer Manager shall
comply fully with all the applicable provisions of the NASD Conduct Rules and
the following provisions:
(i) the Dealer Manager shall have reasonable grounds to
believe, based upon information provided by the investor concerning his
investment objectives, other investments, financial situation and needs, and
upon any other information known by the Dealer Manager, that (A) each investor
to whom the Dealer Manager sells Units is or will be in a financial position
appropriate to enable him to realize to a significant extent the benefits
(including tax benefits) of an investment in the Units, (B) each investor to
whom the Dealer Manager sells Units has a fair market net worth sufficient to
sustain the risks inherent in an investment in the Units (including potential
loss and lack of liquidity), and (C) the Units otherwise are or will be a
suitable investment for each investor to whom the Dealer Manager sells Units,
and the Dealer Manager shall maintain files disclosing the basis upon which the
determination of suitability was made;
(ii) the Dealer Manager shall not execute any transaction
involving the purchase of Units in a discretionary account without prior written
approval of the transaction by the investor;
(iii) the Dealer Manager shall have reasonable grounds to
believe, based upon the information made available to it, that all material
facts are adequate and accurately disclosed in the Registration Statement and
provide a basis for evaluating the shares;
(iv) in making the determination set forth in item (iii)
above, the Dealer Manager shall evaluate items of compensation, properties, tax
aspects, financial stability and experience of the sponsor, conflicts of
interest and risk factors, and any other information deemed pertinent by it; and
(v) prior to executing a purchase transaction in the Units,
the Dealer Manager shall have informed the prospective investor of all pertinent
facts relating to the liquidity and marketability of the Units.
(e) The Dealer Manager shall comply with the requirements for
determining the suitability of investors who elect to participate in the
Dividend Reinvestment Plan (the "Reinvestment Plan") in accordance with the
procedure set forth in Paragraph 6 of such Reinvestment Plan in the form of
Exhibit A to the Prospectus.
3.4 Sales Literature. The Dealer Manager shall use and distribute in
conjunction with the offer and sale of any Units only the Prospectus and such
sales literature and advertising as shall have been previously approved in
writing by the Company.
3.5 Jurisdictions. The Dealer Manager shall cause Units to be offered
and sold only in those jurisdictions specified in writing by the Company for
whose account Units are then offered for sale, and such list of jurisdictions
shall be updated by the Company as additional states are added. The Company
shall specify only such jurisdictions in which the Offering and sale of its
Units has been authorized by the appropriate State Regulatory Authorities. No
Units shall be offered or sold for the account of the Company in any other
states.
3.6 Escrow. All funds received by the Dealer Manager for the sale of
Units shall be deposited in an escrow account established by the Company at
▇.▇.▇▇▇▇▇▇ Trust Company (the Escrow Agent), by the close of the first business
day following receipt of such funds by the Dealer Manager. Such escrow account
shall be denominated "ESCROW ACCOUNT FOR THE BENEFIT OF SUBSCRIBERS FOR UNITS OF
COMMONWEALTH INCOME & GROWTH FUND VI" Until such time (if any) as the funds held
in escrow are deliverable to the Company pursuant to the Escrow Agreement
between the Company and the Escrow Agent, the Dealer Manager shall, and shall
cause Participating Brokers to, instruct subscribers to make checks for
subscriptions payable to the order of "▇.▇.▇▇▇▇▇▇ TRUST COMPANY, ESCROW AGENT,"
and shall return checks made payable to another party to the Participating
Broker or subscriber who submitted the check. Thereafter, checks may be made
payable to either the Escrow Agent or the Company. The Dealer Manager may
authorize certain Participating Brokers which are "$25,000 broker-dealers" to
instruct their customers to make their checks for Units subscribed for payable
directly to the Participating Broker. In such case, the Participating Broker
will collect the proceeds of the subscribers' checks and issue a check made
payable to the order of the Escrow Agent for the aggregate amount of the
subscription proceeds.
SECTION 4
COMPENSATION
4.1 Commissions. The Company shall pay to the Dealer Manager, as
compensation for all services to be rendered by the Dealer Manager pursuant to
this Agreement, a commission equal to eight percent (8%) of the selling price of
each Unit for which a sale is completed, regardless of whether such Unit is sold
by the Dealer Manager or a Participating Broker: provided, however that the
Company will pay reduced commissions or may eliminate commissions on certain
sales of Units, including the reduction or elimination of commissions in
accordance with, and on the terms set forth in, the Prospectus and the
paragraphs following this Paragraph 4.1, which reduction or elimination of
commissions will not change the net proceeds to the Company. Unitholders who
elect to participate in the Reinvestment Plan will be charged commissions on
Units purchased for their accounts on the same basis as investors who otherwise
purchase Units in the Offering.
4.2 Dealer Manager Fee. The Company shall pay to the Dealer Manager a
nonaccountable fee for expenses incurred in selling and marketing the Units,
including wholesaling expenses, and for bona fide expenses incurred in
connection with due diligence expense reimbursements, which fee shall be equal
to two percent (2.0%) of the selling price of each Unit for which a sale is
completed, regardless of whether such Unit is sold by the Dealer Manager or a
Participating Broker. All due diligence expense reimbursements shall be paid by
the Dealer Manager from this fee.
4.3 Completed Sale.
(a) A sale of a Unit shall be deemed to be completed under
Paragraph 4.1 if and only if (i) the Company has received a properly completed
and executed subscription agreement, together with payment of the full purchase
price of each purchased Unit, from or, in accordance with Paragraph 3.3(a), on
behalf of an investor who satisfies the applicable suitability standards and
minimum purchase requirements set forth in the Registration Statement as
determined by the Dealer Manager in accordance with the provisions of this
Agreement, (ii) the Company has accepted such subscription, and (iii) such
investor has been admitted as a Unitholder of the Company.
(b) The Dealer Manager hereby acknowledges and agrees that:
(i) the Company, in it's sole and absolute discretion, may
accept or reject any subscription, in whole or in part, for any reason
whatsoever, and no commission will be paid to the Dealer Manager with the
respect to that portion of any subscription, which is rejected;
(ii) no commission will be paid to the Dealer Manager
unless, within one year after the initial date of the Prospectus, subscriptions
for an aggregate of at least 57,500 Units have been received and accepted; and
(iii) no commission will be paid to the Dealer Manager
prior to acceptance by the Company of subscriptions for the minimum number of
Units specified in subparagraph (ii) above.
4.4 Payment. The commissions specified in Paragraph 4.1 for the sale of
any Unit shall be payable in cash by the Company, as specified in Paragraph 4.1
no later than the end of the calendar month in which the investor subscribing
for the Unit is admitted as a Unitholder of the partnership. Investors shall
first be admitted as unitholders of the Partnership within 30 days after
acceptance by the Company of subscriptions for at least 50 Units. The Company
will accept or reject all subscriptions within 30 days after receipt,
notwithstanding anything to the contrary contained herein, in the event that the
Company pays any commission to the Dealer Manager for sale by a Participating
Broker of one or more Units and the subscription is rescinded as to one or more
of the Units covered by such subscription, the Company shall decrease the next
payment of commissions or other compensation otherwise payable to the Dealer
Manager by the Company under this Agreement by an equal amount to the commission
rate established in Paragraph 4.1 of this Agreement, multiplied by the number of
Units as to which the subscription is rescinded. In the event that no payment of
commissions or other compensation is due to the Dealer Manager after such
withdrawal occurs, the Dealer Manager shall pay the amount specified in the
preceding sentence to the Company within ten (10) days following receipt of
notice by the Dealer Manager from the Company stating the amount owed as a
result of rescinded subscriptions.
4.5 Sales Incentives. The Dealer Manager also may provide incentive
items for registered representatives of the Dealer Manager and the Participating
Brokers, which in no event shall exceed an aggregate of $100.00 per annum per
participating sales person, and which shall be payable out of the Dealer Manager
Fee received by the Dealer Manager. In the event other incentives are provided
to registered representatives of the Dealer Manager or the Participating
Brokers, they will only be paid in cash and such payments will only be made to
the Dealer Manager or the Participating Brokers rather than their registered
representatives. Before any such sales incentive program is offered, the Company
agrees to obtain prior approval of the terms of such program from the NASD.
4.6 Due Diligence. Out of the gross offering proceeds of the Offering,
the Company and the Limited Partnership may, through the Dealer Manager or
directly, reimburse Participating Brokers for their bona fide due diligence
expenses, in an amount not to exceed $250,000, which represents 0.5% of the
gross proceeds of the Offering.
4.7 Maximum Compensation. In no event shall the aggregate underwriting
compensation to be paid to the Dealer Manager and the Participating Brokers in
connection with the offer and sale of the Units exceed 10% of the gross proceeds
of the Offering (not including due diligence expenses of up to one-half percent
of the gross proceeds of the Offering).
SECTION 5
TERM OF AGREEMENT
5.1 Commencement and Expiration. This Agreement shall commence as of the
date first above written and, unless sooner terminated pursuant to Paragraph 5.2
or by operation of law or otherwise, shall expire at the end of the Offering
period.
5.2 Termination. Any party may terminate this agreement at any time and
for any reason by giving 30 days' prior written notice of intention to terminate
to each other party hereto.
5.3 Obligations Surviving Expiration or termination.
(a) In addition to any other obligations of the Dealer Manager
that survive the expiration or termination of this Agreement, the Dealer
Manager, upon the expiration or termination of this Agreement, shall (i)
promptly deposit any and all funds in its possession which were received from
investors for the sale of Units into the appropriate escrow account specified in
Paragraph 3.7 or, if the minimum number of Units have been sold and accepted by
the Company, into such other accounts as the
Company may designate, and (ii) promptly deliver to the Company all records and
documents in its possession which relate to the Offering and are not designated
as dealer copies. The Dealer Manager, at its sole expense, may make and retain
copies of all such records and documents, but shall keep all such information
confidential. The Dealer Manager shall use its best efforts to cooperate with
the Company to accomplish an orderly transfer of management of the Offering to a
party designated by the Company.
(b) In addition to any other obligations of the Company that
survive the expiration or termination of this Agreement, the Company, upon
expiration or termination of this Agreement, shall pay to the Dealer Manager all
commissions to which the Dealer Manager is or becomes entitled under Section 4
at such time or times as such commissions become payable pursuant to
paragraph 4.3.
SECTION 6
COVENANTS OF THE DEALER MANAGER
The Company covenants, warrants and represents, during the full term of this
Agreement, that:
(a) it will use its best efforts to maintain the effectiveness of the
Registration Statement, and will file, or cause to be filed, such amendments to
the Registration Statement as may be reasonably necessary for that purpose;
(b) It will use its best efforts to (i) prevent the issuance of any
order by the SEC, any State Regulatory Authorities or any other regulatory
authority which suspends the effectiveness of the Registration Statement,
prevents the use of the Prospectus, or otherwise prevents or suspends the
Offering, and (ii) obtain the lifting of any such order if issued;
(c) It will give the Dealer Manager written notice when the Registration
Statement becomes effective and shall deliver to the Dealer Manager a signed
copy of the Registration Statement, including its exhibits, and such number of
copies of the Registration Statement, without exhibits, and the Prospectus, and
any supplements and amendments thereto which are finally approved by the SEC, as
the Dealer Manager may reasonably request for sale of the Units, which
Prospectus shall not contain any untrue statement of a material fact required to
be stated therein or omit any material statement necessary to make the
statements therein, in light of the circumstances under which they are made, not
misleading;
(d) If at any time any event occurs and becomes known to the Company
prior to the end of the Offering Period, as a result of which the Registration
Statement or Prospectus would include an untrue statement of a material fact, in
view of the circumstances under which they were made, omit to state any material
fact necessary to make the statements therein not misleading, the Company will
effect the preparation of an amended or supplemented Registration Statement or
Prospectus which will correct such statement or omission;
(e) It will promptly notify the Dealer Manager of any post-effective
amendments or supplements to the Registration Statement or Prospectus;
(f) It will, during the full term of this Agreement abide by all
applicable provisions to its governing instruments, as the same may be amended;
and
(g) It will use its best efforts to cause, at or prior to the time the
Registration Statement becomes effective, the qualification or registration of
the Units for offering and sale under the securities laws of such jurisdictions
as shall be determined by the Company.
SECTION 7
PAYMENT OF COSTS AND EXPENSES
7.1 Dealer Manager. The Dealer Manager shall pay all costs and expenses
incident to the performance of its obligations under this Agreement which are
not expressly assumed by the Company under Paragraph 8.2 below.
7.2 Company. The Company shall pay all costs and expenses related to:
(a) the registration of the Offer and sale of the Units with the
SEC, including the cost of preparation, printing, filing and delivery of the
Registration Statement and all copies of the Prospectus used in the Offering,
and amendments or supplements to such documents;
(b) the preparation and printing of the form of subscription
agreement to be used in the sale of the Units;
(c) the qualification or registration of the Units under state
securities or "blue sky" laws of states where the Units are to be offered or
sold;
(d) the filing of the Registration Statement and any related
documents, including any amendments or supplements to such documents, with the
NASD;
(e) any filing fees, and fees and disbursements to counsel,
accountants and escrow agents which are in any way related to any of the above
items; and
(f) the preparation, printing and filing of all advertising
originated by it relating to the sale of Units.
SECTION 8
INDEMNIFICATION
The Dealer Manager agrees to indemnify, defend and hold harmless the Company
from all losses, claims, demands, liabilities and expenses, including reasonable
legal and other expenses incurred in defending such claims or liabilities,
whether or not resulting in any liability to the Company, which the Company may
incur in connection with the offer or sale of any Units, either by the Dealer
Manager pursuant to this Agreement or any Participating Broker acting on the
Dealer Manager's behalf pursuant to the Participating Broker Agreement which
arise out of or are based upon (i) an untrue statement or alleged untrue
statement of a material fact, or any omission or alleged omission of a material
fact, other than a statement or omission contained in the Prospectus, the
Registration Statement, or any state securities filing which was not based on
information supplied to the Company by the Dealer Manager or a Participating
Broker, or (ii) the breach by the Dealer Manager or any Participating Broker
acting on its behalf of any of the terms and conditions of this Agreement or any
Participating Broker Agreement, including but not limited to, alleged violations
of the Securities Act of 1933, as amended.
SECTION 9
MISCELLANEOUS
9.1 Notices. Any notice, approval, request, authorization, direction or
other communication under this Agreement shall be given in writing and shall be
deemed to be delivered when delivered in person or deposited in the United
States mail, properly addressed and stamped with the required postage,
registered or certified mail, return receipt requested, to the intended
recipient as set forth below.
If to the Company: Commonwealth Income & Growth Fund, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
Chairman of the Board
If to the Dealer Manager: Commonwealth Capital Securities Corp.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇,
President
Any party may change its address specified above by giving each other party
notice of such change in accordance with this Paragraph 9.1
9.2 Invalid provision. The invalidity or unenforceability of any
provision of this agreement shall not affect the other provisions hereof, and
this Agreement shall be construed in all respects as if such invalid or
unenforceable provision were omitted.
9.3 No Partnership. Nothing in this Agreement shall be construed or
interpreted to constitute the Dealer Manager as in association with or in
partnership with the Company, and instead, this Agreement only shall constitute
the Dealer Manager as a dealer authorized by the Company to sell and to manage
the sale by others of the Units according to the terms set forth in the
Registration Statement, the Prospectus or this Agreement.
9.4 No Third Party Beneficiaries. No provision of this Agreement is
intended to be for the benefit of any person or entity not a party to this
Agreement, and no third party shall be deemed to be a beneficiary of any
provision of this Agreement. Further, no third party shall by virtue of any
provision of this Agreement have a right of action or an enforceable remedy
against either party to this Agreement.
9.5 Survival. Paragraph 5.3 and Section 8 and all Provisions of this
Agreement which may reasonably be interpreted or construed as surviving the
expiration or termination of this Agreement shall survive the Expiration or
termination of this Agreement.
9.6 Entire Agreement. This Agreement constitutes the complete
understanding among the parties hereto, and no variation, modification or
amendment to this Agreement shall be deemed valid or effective unless and until
it is signed by all parties hereto.
9.7 Successors and Assigns. No party shall assign (voluntarily, by
operation of law or otherwise) this Agreement or any right, interest or benefit
under this Agreement without the prior written consent of each other party.
Subject to the foregoing, this Agreement shall be fully binding upon, inure to
the benefit of, and be enforceable by, the parties hereto and their respective
successors and assigns.
9.8 Nonwaiver. The failure of any party to insist upon or enforce strict
performance by any other party of any provision of this Agreement or to exercise
any right under this Agreement shall not be construed as a waiver or
relinquishment to any extent of such party's right to assert or rely upon any
such provision or right in that or any other instance; rather such provision or
right shall be and remain in full force and effect.
9.9 Applicable Law. This Agreement shall be interpreted, construed and
enforced in all respects in accordance with the laws of the Commonwealth of
Pennsylvania.
IN WITNESS WHEREOF, the parties have executed this Dealer Manager
Agreement as of the date first above written.
Company: Commonwealth Income & Growth Fund, Inc.
By:
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇,
Chairman of the Board
Dealer Manager: Commonwealth Capital Securities Corp.
By:
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▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, President
