KLEIN RETAIL CENTERS, INC. Up to 3,000,000 Shares of Common Stock DEALER MANAGER AGREEMENT September _____, 2009
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RETAIL CENTERS, INC.
Up to
3,000,000 Shares of Common Stock
September
_____, 2009
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▇▇▇▇▇▇▇▇▇▇▇▇, President
Freedom
Investors Corp
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Dear ▇▇.
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Retail Centers, Inc., a Delaware corporation (the “Company”), is registering for
public sale a maximum of 3,000,000 shares of its common stock, par value $0.0001
per share (the “Shares), to be issued and sold for $5.00 per Share at an
aggregate purchase price of $15,000,000.00 (the “Offering”). There shall be a
minimum purchase by any one person of ______ Shares (except as otherwise
indicated in the Prospectus or in any letter or memorandum from the Company to
Freedom Investors Corp. (the “Dealer Manager”). Terms not defined herein shall
have the same meaning as in the Prospectus. In connection therewith, the Company
hereby agrees with you, the Dealer Manager, as follows:
1.
Representations and
Warranties of the Company
The
Company represents and warrants to the Dealer Manager and each dealer with whom
the Dealer Manager has entered into or will enter into a Soliciting Dealer
Agreement in the form attached to this Agreement as Exhibit A (you and
said dealers being hereinafter sometimes referred to collectively as the
“Dealers”) that:
1.1 A
Prospectus with respect to the Company and the Offering has been prepared by the
Company in accordance with applicable requirements of the Securities Act of
1933, as amended (the “Securities Act”), and the applicable rules and
regulations (the “Rules and Regulations”) of the Securities and Exchange
Commission (the “SEC”) promulgated thereunder, covering the Shares. Copies of
such Prospectus and each amendment thereto have been or will be delivered to the
Dealer Manager. (The Prospectus and any amendments thereto hereinafter referred
to as the “Prospectus”),
1.2 The
Company has been duly and validly organized and formed as a corporation, and is
validly existing in good standing, under the laws of the state of Delaware, with
the power and authority to conduct its business as described in the
Prospectus.
1.3 The
Prospectus complies with the Securities Act and the Rules and Regulations and
does not contain any untrue statements of material facts or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading; provided, however, that the foregoing
provisions of this Section 1.3 will not extend to such statements contained in
or omitted from the Prospectus as are primarily within the knowledge of the
Dealer Manager or any of the Dealers and are based upon information furnished by
the Dealer Manager in writing to the Company specifically for inclusion therein.
In making the representations and warranties required herein (including without
limitation, that made pursuant to Section 3.4) you may, as to factual matters,
rely upon certificates, statements, letters, representations and affidavits of
officers of the Company, your officers, any other records of the Company,
certificates of public officials, and letters of independent certified public
accountants. With respect to the opinions required herein, “known to
us”, “to the best of our knowledge” or any like phrase or reference shall mean
to the best of your knowledge after due inquiry and investigation; “due inquiry
and investigation” shall include only (i) discussions, inquiries and conferences
with officials and agents of the Company occurring in connection with your
relationship with the Company, (ii) review of certain corporate records,
documents and proceedings of the Company as is provided to you by the Company,
and (iii) review of files maintained by you relating to the Company. “Due
inquiry and investigation” shall not mean or imply any independent verification
of any factual matter of which you become aware as a result of the
aforementioned discussions, inquiries, conferences and reviews.
1.4 The
Company intends to use the funds received from the sale of the Shares as set
forth in the Prospectus.
1.5 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 Securities Act or applicable state securities
laws.
1.6 There
are no actions, suits or proceedings pending or to the knowledge of the Company,
threatened against the Company 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, which will have a material adverse
effect on the business or property of the Company.
1.7 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, bylaw,
indenture, mortgage, deed of trust, lease, rule, regulation, writ, injunction or
decree of any government, governmental instrumentality or court, domestic or
foreign, having jurisdiction over the Company, except to the extent that the
enforceability of the indemnity and/or contribution provisions contained in
Section 4 of this Agreement may be limited under applicable securities
laws.
1.8 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 4 of this Agreement may be limited under applicable securities
laws.
1.9 At
the time of the issuance of the Shares, the Shares will have been duly
authorized and validly issued, and upon payment therefor, will be fully paid and
nonassessable and will conform to the description thereof contained in the
Prospectus.
2. Covenants of the
Company
The
Company covenants and agrees with the Dealer Manager that:
2.1 It
will, at no expense to the Dealer Manager, furnish the Dealer Manager with such
number of printed copies of the Prospectus, including all amendments and
exhibits thereto, as the Dealer Manager may reasonably request. It will
similarly furnish to the Dealer Manager and others designated by the Dealer
Manager as many copies as the Dealer Manager may reasonably request in
connection with the offering of the Shares of: (a) the Prospectus in preliminary
and final form and every form of supplemental or amended Prospectus; (b) this
Agreement; and (c) any other printed sales literature or other materials
(provided that the use of said sales literature and other materials has been
first approved for use by the Company and all appropriate regulatory
agencies).
2.2 It
will furnish such proper information and execute and file such documents as may
be necessary for the Company to qualify the Shares for offer and sale under the
securities laws of such jurisdictions as the Dealer Manager may reasonably
designate and will file and make in each year such statements and reports as may
be required. The Company will furnish to the Dealer Manager a copy of
such papers filed by the Company in connection with any such qualification. The
Company further represents and warrants to, and agrees with, you as
follows:
(a) The
Company will take all necessary action and file all forms and documents
necessary (“Blue Sky Application”) to either qualify or register the Shares for
sale or exempt the Shares from such qualification or registration in the State
of Wisconsin and such other jurisdictions as are agreed upon in writing between
you and the Company; the Company will take all necessary action and file all
forms and documents necessary to either qualify or register the Shares for sale
or exempt the Shares from such qualification or registration in such other
states as you and the Company shall agree upon in writing. (b) The Company or
its counsel will provide you or your counsel with copies, at the time they are
filed, of all correspondence, applications, forms, and other documents filed
with each jurisdiction where the Shares are to be registered or qualified or
offered in an exempt transaction; upon receipt of notification by the Company of
the qualification, registration, or exemption of the Shares by an applicable
jurisdiction, the Company or its counsel will promptly notify you or your
counsel in writing of such action, which writing shall summarize the conditions
and other requirements imposed by such jurisdiction in granting such
qualification, registration or exemption, including offeree qualification or
suitability and broker-dealer and agent registration requirements applicable to
the conduct of the Offering; you shall not offer or sell the Shares in any
jurisdiction until receipt of such written notification from the Company or its
counsel.
(c) In
each jurisdiction where the Shares have been registered or qualified or is
offered or sold in an exempt transaction as provided above, the Company will
make and file such statements, documents, materials, and reports in each year as
are or may be required to be made or filed either by the Company under the laws
of such jurisdiction.
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(d) The
Company will promptly provide to you for delivery to all offerees and purchasers
and their representatives, if any, any additional information, documents and
instruments which you or the Company deem necessary to comply with the rules,
regulations, and judicial and administrative interpretations respecting
compliance with such exemptions or qualifications and registrations in those
jurisdictions where the Shares is to be offered or sold.
2.3 If
at any time when a Prospectus is required to be delivered under the Securities
Act any event occurs as a result of which, in the opinion of either the Company
or the Dealer Manager, the Prospectus or any other Prospectus then in effect
would include an untrue statement of a material fact or, 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
promptly notify the Dealer Manager thereof (unless the information shall have
been received from the Dealer Manager) and will effect the preparation of an
amended or supplemental Prospectus which will correct such statement or
omission. The Company will then promptly prepare such amended or
supplemental Prospectus or Prospectuses as may be necessary to comply with the
requirements of Section 10 of the Securities Act.
3. Obligations and Compensation
of Dealer Manager
3.1 The
Company hereby appoints the Dealer Manager as its exclusive agent and principal
distributor for the purpose of selling for cash up to a maximum of 3,000,000
Shares through Dealers, all of whom shall be members in good standing of the
Financial Industry Regulatory Authority (“FINRA”). The Dealer Manager may also
sell Shares for cash directly to its own clients and customers at the public
offering price and subject to the terms and conditions stated in the Prospectus.
The Dealer Manager hereby accepts such agency and distributorship and agrees to
use its best efforts to sell the Shares on said terms and conditions. The Dealer
Manager represents to the Company that (i) it is a member of FINRA; (ii) it will
at all times maintain and employ an adequate number administrative personnel
(who shall be acceptable to the Company) to fulfill its obligations under this
agreement and any supplemental or successor agreement and shall be solely
responsible for the compensation of such personnel. Whether or not the
transactions contemplated hereunder are consummated or this Agreement becomes
effective or is terminated for any reason, except as set forth below, the
Company will pay (directly or by reimbursement) all costs and expenses incurred
in connection with the offering, including (a) all costs, fees and expenses
(other than certain legal fees of your counsel and other out-of-pocket expenses
incurred by you, as provided below) incurred in connection with the performance
of the Company's obligations hereunder, including, without limiting the
generality of the foregoing, all costs and expenses incurred in connection with
the registration or qualification of the Shares for sale pursuant the securities
or “blue sky” laws and regulations of any state and the preparation, printing,
filing and distribution of the Prospectus and all amendments and supplements
thereto, all in such quantities as you, on behalf of the Dealers, may reasonably
require; (b) all costs, fees and expenses of the Company's counsel, independent
public accountants, and transfer agent(s); all transfer taxes, if any, with
respect to transfer, sale and delivery of the Shares, and printing of
certificates representing any and all of the foregoing securities; and (c) your
reasonable out-of-pocket expenses incurred in connection with the Offering,
promptly upon demand, including fees and expenses of your counsel; provided,
however, that, without the consent of the Company, such payment or reimbursement
of legal fees and expenses shall not exceed in the aggregate $____________, and
reimbursement of other out-of-pocket expenses shall not exceed in the aggregate
$__________. The Company will be responsible for payment of such other costs
incurred by it in connection with the Offering as shall be agreed between the
Company and the Dealer Manager. You and your employees and representatives have
all required licenses and registrations to act under this Agreement and have
established and implemented anti-money laundering compliance programs in
accordance with applicable law, including applicable FINRA rules, SEC rules and
the USA PATRIOT Act of 2001, reasonably expected to detect and cause the
reporting of suspicious transactions in connection with the sale of Shares of
the Company. The Dealer Manager agrees to be bound by the terms of
the Escrow Agreement, a copy of which is attached as Exhibit “B” (the “Escrow
Agreement”).
3.2 Promptly
after the effective date of this agreement, the Dealer Manager and the Dealers
shall commence the offering of the Shares for cash to the public in
jurisdictions in which the Shares are registered or qualified for sale or in
which such offering is otherwise permitted. The Dealer Manager and the Dealers
will suspend or terminate offering of the Shares upon request of the Company at
any time and will resume offering the Shares upon subsequent request of the
Company.
3.3 Except
as provided in the “Plan of Distribution” Section of the Prospectus, as
compensation for the services rendered by the Dealer Manager, the Company agrees
that it will pay to the Dealer Manager a fee of up to ____% of gross proceeds of
the Offering (“Dealer Manager Fee”), before reallowance to participating
broker-dealers. Pursuant to separately negotiated agreements, the Dealer Manager
may re-allow a portion of the Dealer Manager Fee in an aggregate amount not to
exceed the maximum permitted under the FINRA and NASAA REIT Guidelines to
broker-dealers participating in the distribution of the Offering.
Notwithstanding the foregoing, no commissions, payments or amount whatsoever
will be paid to the Dealer Manager under this Section 3.3 unless or until the
gross proceeds of the Shares sold are disbursed to the Company pursuant to the
Escrow Agreement. The Company will not be liable or responsible to any Dealer
for direct authorization of payment of commissions to such Dealer, it being the
sole and exclusive responsibility of the Dealer Manager for authorizing payment
of commissions to Dealers. Total underwriting compensation, including the Dealer
Manager Fee and underwriter expense reimbursement, if any, may not exceed the
maximum amount allowed under the rules of FINRA.
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3.4 The
Dealer Manager represents and warrants to the Company and each person and firm
that signs the Registration Statement that, to the best of its knowledge, the
information under the caption “Plan of Distribution” in the Prospectus and all
other information furnished to the Company by the Dealer Manager in writing
expressly for use in the Registration Statement, any preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto does 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 not
misleading.
3.5 The
Dealer Manager shall use and distribute in conjunction with the offer and sale
of any Shares only the Prospectus and such sales literature and advertising as
shall have been previously approved in writing by the Company.
3.6 The
Dealer Manager shall cause Shares to be offered and sold only in those
jurisdictions specified in writing by the Company for whose account Shares 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 Shares has been authorized
by appropriate state regulatory authorities. No Shares shall be offered or sold
for the account of the Company in any other states. See Section
2.2.
3.7 The
Dealer Manager represents and warrants to the Company that it will not represent
or imply that the escrow agent, as identified in the Prospectus, has
investigated the desirability or advisability of investment in the Company, or
has approved, endorsed or passed upon the merits of the Shares or the Company,
nor will it use the name of said escrow agent in any manner whatsoever in
connection with the offer or sale of the Shares other than by acknowledgment
that it has agreed to serve as escrow agent.
4.
Indemnification
4.1 The
Company will indemnify and hold harmless the Dealers and the Dealer Manager,
their officers and directors and each person, if any, who controls such Dealer
or Dealer Manager within the meaning of Section 15 of the Securities Act from
and against any losses, claims, damages or liabilities, joint or several, to
which such Dealers or Dealer Manager, their officers and directors, or such
controlling person may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (a) any untrue statement or alleged
untrue statement of a material fact contained (i) in any Registration Statement
(including the Prospectus as a part thereof) or any post-effective amendment
thereto or in the Prospectus or any amendment or supplement to the Prospectus or
(ii) in any blue sky application or other document executed by the Company or on
its behalf specifically for the purpose of qualifying any or all of the Shares
for sale under the securities laws of any jurisdiction or based upon written
information furnished by the Company under the securities laws thereof (any such
application, document or information being hereinafter called a “Blue Sky
Application”), or (b) the omission or alleged omission to state in the
Prospectus or any post-effective amendment thereof or in any Blue Sky
Application a material fact required to be stated therein or necessary to make
the statements therein not misleading, or (c) any untrue statement or alleged
untrue statement of a material fact contained in any preliminary Prospectus, if
used prior to the effective date of the agreement, or in the Prospectus or any
amendment or supplement to the Prospectus or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading, and will reimburse each Dealer or Dealer
Manager, its officers and each such controlling person for any legal or other
expenses reasonably incurred by such Dealer or Dealer Manager, its officers and
directors, or such controlling person in connection with investigating or
defending such loss, claim, damage, liability or action; provided that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of, or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in reliance
upon and in conformity with written information furnished to the Company or
Dealer Manager by or on behalf of any Dealer or Dealer Manager specifically for
use with reference to such Dealer or Dealer Manager in the preparation of the
Registration Statement or any such post-effective amendment thereof, any such
Blue Sky Application or any such preliminary Prospectus or the Prospectus or any
such amendment thereof or supplement thereto; and further provided that the
Company will not be liable in any such case if it is determined that such Dealer
or Dealer Manager was at fault in connection with the loss, claim, damage,
liability or action. Notwithstanding the foregoing, the Company may
not indemnify or hold harmless the Dealer Manager, any Dealer or any of their
affiliates in any manner that would be inconsistent with the provisions of
Section II.G. of the Statement of Policy Regarding Real Estate Investment Trusts
of the North American Securities Administrators Association, Inc. effective May
7, 2007, as amended (the “NASAA REIT Guidelines”). In particular, but without
limitation, the Company may not indemnify or hold harmless the Dealer Manager,
any Dealer or any of their affiliates for liabilities arising from or out of a
violation of state or federal securities laws, unless one or more of the
following conditions are met:
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(a)
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there
has been a successful adjudication on the merits of each count involving
alleged securities law violations;
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(b)
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such
claims have been dismissed with prejudice on the merits by a court of
competent jurisdiction; or
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(c)
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a
court of competent jurisdiction approves a settlement of the claims
against the indemnitee and finds that indemnification of the settlement
and the related costs should be made, and the court considering the
request for indemnification has been advised of the position of the SEC
and of the published position of any state securities regulatory authority
in which the securities were offered as to indemnification for violations
of securities laws.
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4.2 The
Dealer Manager will indemnify and hold harmless the Company and each person, if
any, who controls the Company within the meaning of Section 15 of the Securities
Act, from and against any losses, claims, damages or liabilities to which any of
the aforesaid parties may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (a) any untrue statement of a material
fact contained (i) in the Prospectus , or any post-effective amendment thereof
or (ii) any Blue Sky Application, or (b) the omission to state in the Prospectus
or any post-effective amendment thereof or in any Blue Sky Application a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (c) any untrue statement or alleged untrue statement
of a material fact contained in any preliminary Prospectus, if used prior to the
effective date of this agreement or in the Prospectus, or in any amendment or
supplement to the Prospectus or the omission to state therein a material fact
required to be stated therein or necessary in order to make the statements
therein in the light of the circumstances under which they were made not
misleading in each case to the extent, but only to the extent, that such untrue
statement or omission was made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Dealer Manager
specifically for use with reference to the Dealer Manager in the preparation of
any such Blue Sky Application or any such preliminary Prospectus or the
Prospectus or any such amendment thereof or supplement thereto, or (d) any
unauthorized use of sales materials or use of unauthorized verbal
representations concerning the Shares by the Dealer Manager, or (e) any failure
to comply with applicable laws governing money laundry abatement and
anti-terrorist financing efforts, including applicable FINRA rules, SEC rules
and the USA PATRIOT Act of 2001, and will reimburse the aforesaid parties, in
connection with investigation or defending such loss, claim, damage, liability
or action. This indemnity agreement will be in addition to any liability which
the Dealer Manager may otherwise have.
4.3 Each
Dealer severally will indemnify and hold harmless the Company, Dealer Manager
and each of their directors (including any persons named in the Prospectus with
his consent, as about to become a director), and each person, if any, who
controls the Company and the Dealer Manager within the meaning of Section 15 of
the Securities Act from and against any losses, claims, damages or liabilities
to which the Company, the Dealer Manager, any such director or officer, or
controlling person may become subject, under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (a) any untrue statement or alleged
untrue statement of a material fact contained (i) in the Prospectus
or any post-effective amendment thereof or (ii) in any Blue Sky Application, or
(b) the omission or alleged omission to state in the Prospectus as a part
thereof or any post-effective amendment thereof or in any Blue Sky Application a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (c) any untrue statement or alleged untrue statement
of a material fact contained in any preliminary Prospectus, if used prior to the
effective date of this agreement, or in the Prospectus, or in any amendment or
supplement to the Prospectus or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading in each case to the extent, but only to the extent,
that such untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with written information
furnished to the Company or the Dealer Manager by or on behalf of such Dealer
specifically for use with reference to such Dealer in the preparation of any
such Blue Sky Application or any such preliminary Prospectus or the Prospectus
or any such amendment thereof or supplement thereto, or (d) any unauthorized use
of sales materials or use of unauthorized verbal representations concerning the
Shares by such Dealer or Dealer’s representations or agents in violation of
Section 4 of the Soliciting Dealer Agreement or otherwise, or (e) any failure to
comply with applicable laws governing money laundry abatement and anti-terrorist
financing efforts, including applicable FINRA rules, SEC rules and the USA
PATRIOT Act of 2001, and will reimburse the Company and the Dealer Manager and
any such directors or officers, or controlling person, in connection with
investigating or defending any such loss, claim, damage, liability or
action. This indemnity agreement will be in addition to any liability
which such Dealer may otherwise have.
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4.4 Promptly
after receipt by an indemnified party under this Section 4 of notice of the
commencement of any action, such indemnified party will, if a claim in respect
thereof is to be made against any indemnifying party under this Section 4,
notify in writing the indemnifying party of the commencement thereof and the
omission so to notify the indemnifying party will relieve such indemnifying
party from any liability under this Section 4 as to the particular item for
which indemnification is then being sought, but not from any other liability
which it may have to any indemnified party. In case any such action is brought
against any indemnified party, and it notifies an indemnifying party of the
commencement thereof, the indemnifying party will be entitled, to the extent it
may wish, jointly with any other indemnifying party similarly notified, to
participate in the defense thereof, with separate counsel. Such
participation shall not relieve such indemnifying party of the obligation to
reimburse the indemnified party for reasonable legal and other expenses (subject
to Section 4.5) incurred by such indemnified party in defending itself, except
for such expenses incurred after the indemnifying party has deposited funds
sufficient to effect the settlement, with prejudice, of the claim in respect of
which indemnity is sought. Any such indemnifying party shall not be liable to
any such indemnified party on account of any settlement of any claim or action
effected without the consent of such indemnifying party.
4.5 The
indemnifying party shall pay all legal fees and expenses of the indemnified
party in the defense of such claims or actions; provided, however, that the
indemnifying party shall not be obligated to pay legal expenses and fees to more
than one law firm in connection with the defense of similar claims arising out
of the same alleged acts or omissions giving rise to such claims notwithstanding
that such actions or claims are alleged or brought by one or more parties
against more than one indemnified party. If such claims or actions
are alleged or brought against more than one indemnified party, then the
indemnifying party shall only be obliged to reimburse the expenses and fees of
the one law firm that has been selected by a majority of the indemnified parties
against which such action is finally brought; and in the event a majority of
such indemnified parties is unable to agree on which law firm for which expenses
or fees will be reimbursable by the indemnifying party, then payment shall be
made to the first law firm of record representing an indemnified party against
the action or claim. Such law firm shall be paid only to the extent of services
performed by such law firm and no reimbursement shall be payable to such law
firm on account of legal services performed by another law firm.
4.6 The
indemnity agreements contained in this Section 4 shall remain operative and in
full force and effect regardless of (a) any investigation made by or on behalf
of any Dealer, or any person controlling any Dealer or by or on behalf of the
Company, the Dealer Manager or any officer or director thereof, or by or on
behalf of the Company or the Dealer Manager, (b) delivery of any Shares and
payment therefore, and (c) any termination of this Agreement. A
successor of any Dealer or of any of the parties to this Agreement, as the case
may be, shall be entitled to the benefits of the indemnity agreements contained
in this Section 4.
5.
Survival of
Provisions
The
respective agreements, representations and warranties of the Company and the
Dealer Manager set forth in this Agreement shall remain operative and in full
force and effect regardless of (a) any termination of this Agreement, (b) any
investigation made by or on behalf of the Dealer Manager or any Dealer or any
person controlling the Dealer Manager or any Dealer or by or on behalf of the
Company or any person controlling the Company, and (c) the acceptance of any
payment for the Shares.
6.
Applicable Law;
Venue
This
Agreement was executed and delivered in, and its validity, interpretation and
construction shall be governed by the laws of, the State of Wisconsin; provided
however, that causes of action for violations of federal or state securities
laws shall not be governed by this Section. Venue for any action brought
hereunder shall lie exclusively in Milwaukee, Wisconsin.
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7.
Counterparts
This
Agreement may be executed in any number of counterparts. Each
counterpart, when executed and delivered, shall be an original contract, but all
counterparts, when taken together, shall constitute one and the same
Agreement.
8.
Successors and
Amendment
This
Agreement shall inure to the benefit of and be binding upon the Dealer Manager
and the Company and their respective successors. Nothing in this Agreement is
intended or shall be construed to give to any other person any right, remedy or
claim, except as otherwise specifically provided herein. This Agreement shall
inure to the benefit of the Dealers to the extent set forth in Sections 1 and 4
hereof. This Agreement may be amended by the written agreement of the Dealer
Manager and the Company.
9.
Term
This
Agreement may be terminated by either party (i) immediately upon notice to the
other party in the event that the other party shall have materially failed to
comply with any of the material provisions of this Agreement on its part to be
performed during the term of this Agreement or if any of the representations,
warranties, covenants or agreements of such party contained herein shall not
have been materially complied with or satisfied within the times specified or
(ii) by either party on 60 days’ written notice.
In any
case, this Agreement shall expire at the close of business on the effective date
that the Offering is terminated. The provisions of Section 4 hereof shall
survive such termination. In addition, 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 Shares into
the appropriate escrow account or, if the minimum number of Shares have been
sold and accepted by the Company, into such other account 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. Upon expiration or
termination of this Agreement, the Company shall promptly pay to the Dealer
Manager all fees to which the Dealer Manager is or becomes entitled under
Section 3 at such time as such fees become payable.
10. Confirmation
The
Company hereby agrees and assumes the duty to confirm on its behalf and on
behalf of dealers or brokers who sell the Shares all orders for purchase of
Shares accepted by the Company. Such confirmations will comply with the rules of
the SEC and FINRA, and will comply with applicable laws of such other
jurisdictions to the extent the Company is advised of such laws in writing by
the Dealer Manager.
11. Suitability of
Investors
The
Dealer Manager will offer Shares, and in its agreements with Dealers will
require that the Dealers 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 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, the Dealer
Manager will, and in its agreements with Dealers, the Dealer Manager will
require that the Dealers will, comply with the provisions of all applicable
rules and regulations relating to suitability of investors.
12. Submission of
Orders
(a) Each
subscriber for Shares shall be required to (i) complete and execute duplicate
originals of the subscription agreement (in the form included as an exhibit to
the Prospectus and the Escrow Agreement) and any purchaser representative
questionnaire or other document(s) which may be required by you or the Company
in connection with such subscription (collectively, “Subscription Documents”)
and (ii) tender payment in full for the Shares subscribed for (“Subscription
Payment”); checks representing Subscription Payments should be made payable to
“▇▇▇▇▇ Retail Centers, Inc. Escrow Account”; all Subscription Payments received
by any Dealer (including you) shall be delivered to Century Bank and Trust
(“Escrow Agent”), at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention:
▇▇▇ ▇▇▇▇▇▇▇, by 12:00, noon, on the business day following such receipt,
together with a schedule setting forth the amount of each such Subscription
Payment and the name, mailing address and state of residence of the subscriber.
Subscription Payments received by the Escrow Agent shall be deposited and
administered by it pursuant to the terms of the agreement by and among the
Company, you and the Escrow Agent (“Escrow Agreement”). Concurrently with your
delivery of each Subscription Payment to the Escrow Agent, you shall forward to
the Company, at the address appearing in Section 13 hereof, two (2) executed
originals of all related Subscription Documents, retaining copies of all such
Subscription Documents for your records.
-7-
(b)
Within thirty (30) days following receipt by it of executed Subscription
Documents, the Company shall determine to accept or reject each subscription and
shall notify you and the Escrow Agent orally (to be confirmed in writing). If
the Company elects to accept a subscription, it shall, within forty-five (45)
following receipt by it of executed Subscription Documents relating thereto,
countersign and forward to the subscriber a counterpart original of the
subscription agreement at the mailing address set forth therein. If the Company
elects to reject a subscription, the related Subscription Payment shall, upon
receipt by the Escrow Agent of oral notice (to be confirmed in writing) from the
Company of such rejection, be returned within ten (10) business days following
such notice, directly to the subscriber by the Escrow Agent, without interest
thereon or deduction there from, pursuant to the terms of the Escrow Agreement.
The Company reserves the right, in its sole discretion for any reason, to refuse
to sell Shares to any person at any time.
(c) The
Company may continue the Offering until (i) 3,000,000 Shares are sold or (ii)
____________, 20__, whichever first occurs; the Offering may be terminated at
any time prior thereto at the discretion of the Company, or extended by
amendment to this Agreement.
(d)
Subject to the terms hereof and of the Escrow Agreement, the first disbursement
of subscription proceeds (including disbursement of amounts due to you
hereunder) shall take place not less than five (5) days nor more than fifteen
(15) days following the date upon which cleared funds representing payment in
full for the Shares purchased therewith have been received by the Escrow Agent
under the terms of the Escrow Agreement, unless otherwise agreed in writing
between you and the Company; such initial disbursement is referred to herein as
the “Initial Closing,” and the date thereof is referred to as the “Initial
Closing Date.” Following the Initial Closing, subscription proceeds shall be
disbursed from time to time as agreed between the Company and the Placement
Agent, but not less frequently than monthly; each such further disbursement of
subscription proceeds is referred to herein as an “Additional Closing” and the
date thereof as an “Additional Closing Date.” The Initial Closing and Additional
Closings are sometimes referred to herein as a “Closing” or “Closings”; the
Initial Closing Date and Additional Closing Dates are sometimes referred to
herein as a “Closing Date” or “Closing Dates.” The last Closing Date hereunder
is referred to herein as the “Final Closing Date”. The date, upon which the
Offering shall terminate, for any reason, is referred to herein as the
“Termination Date.”
(e) Each
Closing shall take place at the offices of the Company or, at your option, at
such other place as you may agree upon in writing with the Company.
(f) On or
before each Closing Date, you shall supply to the Company a list setting forth
the name and state of residence of each person to whom you have then distributed
a Memorandum, together with the serial number of the Memorandum so distributed
to each such person and an accounting for each serially-numbered Memorandum not
distributed by you.
(g) After
the Final Closing Date, you will not be considered to have any continuing or
future duty or obligation of any kind to the Company. You have not
assumed, nor will you assume or be permitted to assume, any duties,
responsibilities, or obligations with regard to the management, operations or
any of the business affairs of the Company after the final Closing
(h) You
will maintain in your files documents disclosing the basis upon which the
determination of suitability was reached as to each potential investor. You
hereby represent that you will communicate to each of your sales agents,
representatives and other appropriate persons associated with you the
above-referenced suitability standards. Notwithstanding the provisions of this
Section 12, you shall not execute any transaction in the Company in a
discretionary account without prior written approval of the transaction by the
potential investor.
(i) Prior
to participating in the Offering, you or a person associated with you shall have
reasonable grounds to believe, based on information made available to you or
such person by the Company through the Prospectus or other materials, that all
material facts are adequately and accurately disclosed and provide a basis for
evaluating the Company.
-8-
13
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:
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If
to the Company:
|
▇▇▇▇▇
Retail Centers, Inc.
|
|
▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
|
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|
▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
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Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
|
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If
to the Dealer Manager:
|
▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇▇▇, President
|
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Freedom
Investors Corp.
|
|
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▇▇▇
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
|
|
|
▇▇▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
Any party
may change its address specified above by giving the other party notice of such
change in accordance with this Section 13.
This
agreement may be executed in counterparts, including electronically transmitted
counterparts, each of which shall be deemed an original and together shall be a
single agreement. If the foregoing correctly sets forth our understanding,
please indicate your acceptance thereof in the space provided below for that
purpose, whereupon this letter and your acceptance shall constitute a binding
agreement between us as of the date first above written.
Very
truly yours,
|
▇▇▇▇▇
RETAIL CENTERS, INC.
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|
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By:
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▇▇▇▇▇▇▇
▇. ▇▇▇▇▇,
President
|
|
Accepted
and agreed to as of the day and year first above written.
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By:
|
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▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇▇▇,
President
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-9-