SPECTRASCIENCE, INC. Maximum of 25,000,000 Shares ($5,000,000) SELECTED DEALERS AGREEMENT
EXHIBIT
10.5
SPECTRASCIENCE,
INC.
Maximum
of 25,000,000 Shares ($5,000,000)
As of
July 2, 2009
Dear
Sirs:
SpectraScience,
Inc. (the “Company”)
is offering for sale the shares of common stock (the “Shares”) and warrants to
purchase common stock (the “Warrants”, together with the Shares, the “Units”)
pursuant to the Company’s Confidential Private Placement Memorandum dated May 8,
2009 (the “Memorandum”)
on a no minimum and 25,000,000 Shares ($5,000,000) maximum (the “Maximum
Amount”) basis (the “Offering”).
Each $25,000 Unit offered will consist of 125,000 Series B Preferred Shares
paying 8% annual interest and 62,500 Warrants as described in the Memorandum.
The Company has the right to accept or reject subscriptions in whole or in part
for any reason or no reason at all.
1. The
Units are to be offered by the Company for an initial Offering period commencing
on the date of the Memorandum and ending on December 31, 2009, subject to the
right of the Company to extend the Offering one or more times to a date not
later than December 31, 2009 solely to “accredited investors” as defined in
Regulation D promulgated by the United States Securities and Exchange Commission
(the “SEC”)
under the Securities Act of 1933, as amended (the “1933
Act”). All purchasers of the Units shall purchase a minimum of $25,000
(125,000 Shares and 62,500 Warrants), unless otherwise agreed upon by the
Company.
2. The
Company is offering, subject to the teaks and conditions hereof, a portion of
the Units for sale by certain dealers which are members of the Financial
Industry Regulatory Authority (the “FINRA”)
and who agree to comply with the provisions of the FINRA Conduct Rules, and
which are registered as broker dealers under the federal and state securities
laws, and to foreign dealers or institutions ineligible for membership in said
Association which agree to comply, as though such foreign dealer or institution
were a member of such Association, with the FINRA’s Conduct Rules (such dealers
and institutions so agreeing being hereinafter referred to as “Selected
Dealers”).
3. All
Selected Dealers will be paid on all Units sold by them, a commission of 10% and
a non-allocable expense reimbursement equal to 2% of the total sales price.
Additionally all Selected Dealers will receive Warrants on all Shares sold
equivalent to 0.1 Warrant for each Share sold.
4. The
Selected Dealer shall arrange for the purchase of the Units for its customers
only through the Company and all such purchases shall be made only upon orders
already received by the Selected Dealer from its customers.
5. The
Selected Dealer shall promptly transmit to the Company no later than 12 noon of
the day subsequent to the receipt of funds received from subscribers all of such
funds and a record of each sale which shall set forth the name, address and
social security number of each individual subscriber, the number of Units
purchased, and, if there is more than one registered owner, whether the
certificate or certificates evidencing the securities comprising the Shares
purchased are to be issued to the subscriber in joint tenancy or otherwise.
Simultaneously, a copy of the completed subscription agreement shall be
delivered to the Company. Also, each Selected Dealer shall report, in writing,
to the Company the number of persons in each such state who purchase the Units
from Selected Dealers. Each sale may be rejected by the Company, and if
rejected, the Company will return funds to the rejected subscriber.
6. All
checks and other orders for the payment of money shall be made payable to the
Company for deposit into its account. All subscribers’ checks are to be made
payable to SpectraScience, Inc.
7. The
proceeds from the sale of all of the Shares sold in the Offering (the “Offering
Proceeds”) will be deposited in the Company’s account. In the event that
the subscription is rejected by the Company, the full amount paid by the
rejected subscriber will be refunded to the subscriber without interest or
deduction. All amounts received from accepted subscriptions will be delivered to
the Company. No commissions will be paid by the Company unless and until the
subscription amount has cleared the banking system and such funds have been
released and delivered to the Company.
8. Your
application should reach us promptly by telephone or facsimile at our office. We
reserve the right to reject all subscriptions in whole or in part, to make
allotments and to terminate the Offering at any time without notice. The Units
sold will be confirmed, subject to the terms and conditions of this Selected
Dealers Agreement (the “Agreement”).
9. The
privilege of offering the Units is extended to you by the Company only if the
Units may lawfully be offered in your state by you.
10. The
Company shall make all necessary Blue Sky or other required filings in a timely
manner when requested by a Select Dealer. The Company may, at its sole
discretion, elect to not file a Blue Sky or other required documents, provided
that the Company shall inform the requesting Select Dealer of such election in a
timely manner.
11. Neither
you nor any other person is or has been authorized to give any information or to
make any representations in connection with the sale of Units other than as
contained in the Memorandum.
12. This
Agreement will terminate upon the earlier (a) the latest date to which the
offering period may be extended (December 31, 2009) (b) the date on which the
Maximum Amount of Units are sold, (c) when the Offering has otherwise been
terminated upon written notice from the Company.
13. On
becoming a Selected Dealer in the Offering, you agree to comply with all
applicable requirements of the 1933 Act, the Securities Exchange Act of 1934, as
amended (the “1934
Act”) and all applicable rules and regulations of the FINRA and any state
securities commission.
14. Upon
request, you will be informed as to the jurisdictions in which we have been
advised that the Units have been qualified for sale or are exempt from such
registration or qualification under the respective securities or blue sky laws
of such jurisdictions, but we assume no obligation or responsibility as to the
right of any Selected Dealer to offer or sell the Units in any jurisdiction or
as to any sale therein, for the failure of the Select Dealer to be properly
registered as a broker dealer.
15. Additional
copies of the Memorandum will be supplied to you in reasonable quantities upon
request.
16. No
Selected Dealer is authorized to act as our agent or to make any representation
as to the existence of an agency relationship or otherwise to act on our behalf
in offering or selling the Units.
17. We
shall not be under any liability for or in respect of the value, validity or
form of the certificates for any securities sold in the Offering, or delivery of
the certificates for any securities sold in the Offering, or the performance by
anyone of any agreement on his or its part, or the qualification of any
securities sold in the Offering under the laws of any jurisdiction, or for or in
respect of any matter connected with this Agreement, except for lack of good
faith and for obligations expressly assumed by us in writing this Agreement. The
foregoing provisions shall be deemed a waiver of any liability imposed under the
1933 Act.
18. Notice
to us should be addressed to us at our office, as follows, SpectraScience, Inc.,
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▇▇▇-▇▇▇-▇▇▇▇. Notices to you shall be deemed to have been duly given if
telefaxed or mailed to you at the address to which this letter is
addressed.
19. This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of New York without regard to the conflicts of laws principles
thereof. The parties hereto hereby irrevocably agree that any suit or proceeding
arising directly and/or indirectly pursuant to or under this Agreement shall be
brought solely in a federal or state court located in the City, County and State
of New York. By its execution hereof, the parties hereby covenant and
irrevocably submit to the in
personam jurisdiction of the federal and state courts located in the
City, County and State of New York and agree that any process in any such action
may be served upon any of them personally, or by certified mail or registered
mail upon them or their agent, return receipt requested, with the same full
force and effect as if personally served upon them in New York City. The parties
hereto waive any claim that any such jurisdiction is not a convenient forum for
any such suit or proceeding and any defense or lack of in personam jurisdiction with
respect thereto. In the event of any such action or proceeding, the party
prevailing therein shall be entitled to payment from the other party hereto of
its reasonable counsel fees and disbursements in an amount judicially
determined.
20. If
you desire to act as a Selected Dealer, please confirm your application by
signing and returning to us your confirmation on the duplicate copy of the
Selected Dealer Letter enclosed herewith, even though you may have previously
advised us thereof by telephone, letter or telegraph. Our signature hereon may
be by facsimile.
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Very
truly yours,
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SPECTRASCIENCE,
INC.
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By:/s/ ▇▇▇ ▇▇▇▇▇▇▇
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An
Authorized Officer
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SELECTED DEALER
LETTER
SpectraScience,
Inc.
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Attention:
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We hereby
request to become a Selected Dealer in the offering of the Units of
SpectraScience, Inc. in accordance with the terms and conditions stated in the
foregoing Selected Dealers Agreement and this Selected Dealer Letter. We hereby
acknowledge receipt of the Memorandum referred to in the Selected Dealers
Agreement and Selected Dealer Letter. We further state that in seeking
purchasers for said Units we will rely solely upon said Memorandum and upon no
other statement whatsoever, whether written or oral. We confirm that we are a
dealer actually engaged in the investment banking or securities business and
that we are either (i) a member in good standing of the Financial Industry
Regulatory Authority (“FINRA”);
or (ii) a dealer with its principal place of business located outside the United
States, its territories and its possessions and not registered as a broker or
dealer under the Securities Exchange Act of 1934, as amended, who hereby agrees
not to make any sales within the United States, its territories or its
possessions or to persons who are nationals thereof or residents therein. As a
member of the FINRA, we hereby agree to comply with all of the provisions of
FINRA Conduct Rules. If we are a foreign Selected Dealer, we agree to comply
with the provisions of the FINRA Conduct Rules, and if we are a foreign dealer
and not a member of the FINRA, we agree to comply with the FINRA’s
interpretation with respect to free-riding and withholding, and agree to comply,
as though we were a member of the FINRA, with provisions of Rule 2750 of the
NASD Conduct Rules, and to comply with Rule 2420 of the NASD Conduct Rules as
that Rule applies to non-member foreign dealers.
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Firm:
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By:
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Name: ▇▇▇▇▇
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Title: President
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Address:
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Telephone No:
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Dated:
July 2, 2009