EXHIBIT 1.2
n-Gen Xxxxxxxxx.Xxx, Inc.
1,600,000 Shares of Common Stock and
1,600,000 Common Stock Purchase Warrants
SELECTED DEALER AGREEMENT
-------------------------
Boca Raton, Florida
_____________, 2000
Gentlemen:
1. Xxxxxx Xxxxx Securities, Inc. (the "Underwriter") is offering for
sale an aggregate of 1,600,000 Shares of Common Stock (the "Shares") and
1,600,000 Warrants (the "Warrants") (collectively the "Firm Securities")
of n-Gen Xxxxxxxxx.Xxx, Inc. . (the "Company"), which the Underwriter has
agreed to purchase from the Company, and which are more particularly
described in the Registration Statement, Underwriting Agreement and
Prospectus. In addition, the Underwriter has been granted an option to
purchase from the Company up to an additional 240,000 Shares and an
additional 240,000 Warrants (the "Option Securities") to cover
overallotments in connection with the sale of the Firm Securities. The
Firm Securities and any Option Securities purchased are herein called the
"Securities". The Securities and the terms under which they are to be
offered for sale by the Underwriter is more particularly described in the
Prospectus.
2. The Securities are to be offered to the public by the Underwriter
at the price per Share and price per Warrant set forth on the cover page of
the Prospectus (the "Public Offering Price"), in accordance with the terms
of offering set forth in the Prospectus.
3. The Underwriter, subject to the terms and conditions hereof, is
offering a portion of the Securities for sale to certain dealers who are
actually engaged in the investment banking or securities business and who
are either (a) members in good standing of the National Association of
Securities Dealers, Inc. (the "NASD"), or (b) dealers with their principal
places of business located outside the United States, its territories and
its possessions and not registered as brokers or dealers under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), who have
agreed not to make any sales within the United States, its territories or
its possessions or to persons who are nationals thereof or residents
therein (such dealers who shall agree to sell Securities hereunder being
herein called "Selected Dealers") at the public offering price, less a
selling concession (which may be changed) of not in excess of $________ per
Share and/or $________ per Warrant payable as hereinafter provided, out of
which concession an amount not exceeding $___________ per Share and/or
$__________ per
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Warrant may be reallowed by Selected Dealers to members of the NASD or
foreign dealers qualified as aforesaid. The Selected Dealers who are
members of the NASD agree to comply with all of the provisions of the NASD
Conduct Rules. Foreign Selected Dealers agree to comply with the
provisions of Rule 2740 of the NASD Conduct Rules, and, if any such dealer
is a foreign dealer and not a member of the NASD, such Selected Dealer also
agrees to comply with the NASD's Interpretation with Respect to Free-Riding
and Withholding, and to comply, as though it were a member of the NASD,
with the provisions of Rules 2730 and 2750 of the NASD Conduct Rules, and
to comply with Rule 2420 thereof as that Rule applies to non-member foreign
dealers. The Underwriter has agreed that, during the term of this
Agreement, it will be governed by the terms and conditions hereof.
4. The Underwriter shall act as Underwriter and shall have full
authority to take such action as it may deem advisable in respect to all
matters pertaining to the public offering of the Securities.
5. If you desire to act as a Selected Dealer and purchase any of the
Securities, your application should reach us promptly by facsimile or
letter at the offices of Xxxxxx Xxxxx Securities, Inc., 0000 Xxxx Xxxxxx
Xxxx, Xxxx Xxxxx, Xxxxxxx 00000, Attention: Xxxxxx X. Xxxx. We reserve the
right to reject subscriptions in whole or in part, to make allotments, and
to close the subscription books at any time without notice. The Securities
allotted to you will be confirmed, subject to the terms and conditions of
this Selected Dealers Agreement (the "Agreement").
6. The privilege of subscribing for the Securities is extended to
you only on the condition that the Underwriter may lawfully sell the
Securities to Selected Dealers in your state or other applicable
jurisdiction.
7. Any Securities to be purchased by you under the terms of this
Agreement may be immediately reoffered to the public in accordance with the
terms of offering as set forth herein and in the Prospectus, subject to the
securities or Blue Sky laws of the various states or other jurisdictions.
You agree to pay us on demand for the account of the Underwriter an
amount equal to the Selected Dealer concession as to any Securities
purchased by you hereunder which, prior to the completion of the public
offering as defined in paragraph 8 below, we may purchase or contract to
purchase for our account and, in addition, we may charge you with any
broker's commission and transfer tax paid in connection with such purchase
or contract to purchase. In short, in the event that, prior to the
completion of the distribution of the securities covered by this Agreement,
we purchase in the open market or otherwise any securities delivered to
you, if we are acting as the Underwriter, you agree to repay to
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us for the account of the Underwriter, the amount of the concession allowed
to you plus brokerage commissions and any transfer taxes paid in connection
with such purchase.
You agree to advise us from time to time, upon request, of the number
of Securities purchased by you hereunder and remaining unsold at the time
of such request, and, if in our opinion any such Securities shall be needed
to make delivery of the Securities sold or overallotted for the account of
the Underwriter, you will, forthwith upon our request, grant to us for the
account of the Underwriter the right, exercisable promptly after receipt of
notice from you that such right has been granted, to purchase, at the
Public Offering Price less the selling concession or such part thereof as
we shall determine, such number of Securities owned by you as shall have
been specified in our request.
No expenses shall be charged to Selected Dealers. A single transfer
tax, if payable, upon the sale of the Securities by the Underwriter to you
will be paid when such Securities are delivered to you. However, you shall
pay any transfer tax on sales of Securities by you and you shall pay your
proportionate share of any transfer tax (other than the single transfer tax
described above) in the event that any such tax shall from time to time be
assessed against you and other Selected Dealers as a group or otherwise.
Neither you nor any other person is or has been authorized to give any
information or to make any representation in connection with the sale of
the Securities other than as contained in the Prospectus.
8. By accepting this Agreement, the Selected Dealer has assumed full
responsibility for proper training and instruction of its representatives
concerning the selling methods to be used in connection with the offer and
sale of the Company's Securities, giving special emphasis to the principles
of suitability and full disclosure to prospective investors and
prohibitions against "free-riding and withholding".
9. For the purpose of stabilizing the market in the Securities, we
have been authorized to make purchases and sales of the Securities of the
Company, in the open market or otherwise, for long or short account, and,
in arranging for sales, to overallot.
10. On becoming a Selected Dealer, and in offering and selling the
Securities, you agree to comply with all the applicable requirements of the
Securities Act of 1933, as amended (the "1933 Act"), and the 1934 Act. You
confirm that you are familiar with Rule 15c2-8 under the 1934 Act relating
to the distribution of preliminary and final prospectuses for securities of
an issuer (whether or not the issuer is subject to the reporting
requirements of Section 13 or 15(d) of the 0000 Xxx) and confirm that you
have complied and will comply therewith.
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We hereby confirm that we will make available to you such number of
copies of the Prospectus (as amended or supplemented) as you may reasonably
request for the purposes contemplated by the 1933 Act or the 1934 Act, or
the rules and regulations thereunder.
11. Upon request, you will be informed as to the states and other
jurisdictions in which we have been advised that the Securities are
qualified for sale under the respective securities or Blue Sky laws of such
states and other jurisdictions, but we shall not assume any obligation or
responsibility as to the right of any Selected Dealer to sell the
Securities in any state or other jurisdiction or as to the eligibility of
the Securities for sale therein. We will, if requested, file a Further
State Notice in respect of the Securities pursuant to Article 23-A of the
General Business Law of the State of New York.
12. No Selected Dealer is authorized to act as agent for the
Underwriter, or otherwise to act on our behalf, in offering or selling the
Securities to the public or otherwise or to furnish any information or make
any representation except as contained in the Prospectus.
13. Nothing will constitute the Selected Dealers an association or
other separate entity or partners with the Underwriter, or with each other,
but you will be responsible for your share of any liability or expense
based on any claim to the contrary. We shall not be under any liability
for or in respect of value, validity or form of the Securities, or the
delivery of the certificates for the Securities, or the performance by
anyone of any agreement on its part, or the qualification of the Securities
for sale under the laws of any jurisdiction, or for or in respect of any
other matter relating to this Agreement, except for lack of good faith and
for obligations expressly assumed by us or by the Underwriter in this
Agreement and no obligation on our part shall be implied herefrom. The
foregoing provisions shall not be deemed a waiver of any liability imposed
under the 1933 Act.
14. Payment for the Securities sold to you hereunder is to be made at
the Public Offering Price less the above-mentioned selling concession on
such time and date as we may advise, at the office of Xxxxxx Xxxxx
Securities, Inc., 0000 Xxxx Xxxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx 00000,
Attention: Xxxxxx X. Xxxx, by wire transfer to the account of the
Underwriter, against delivery of certificates for the Securities so
purchased. If such payment is not made at such time, you agree to pay us
interest on such funds at the prevailing broker's loan rate.
15. Notices to us should be addressed to us at the offices of Xxxxxx
Xxxxx Securities, Inc., 0000 Xxxx Xxxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx 00000,
Attention: Xxxxxx X. Xxxx. Notices to you shall be deemed to have been
duly given if telephoned, telefaxed or mailed
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to you at the address to which this Agreement or accompanying Selected
Dealer Letter is addressed.
16. This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida without giving effect to the choice
of law or conflicts of law principles thereof.
17. If you desire to purchase any Securities and 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, telefax, or letter. Our signature hereon may be by facsimile.
Very truly yours,
XXXXXX XXXXX SECURITIES, INC.
BY:____________________________________
Authorized Officer
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SELECTED DEALER LETTER
----------------------
Xxxxxx X. Xxxx, President
Xxxxxx Xxxxx Securities, Inc.
0000 Xxxx Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
We hereby subscribe for _______________ Shares and/or ______________
Warrants of n-Gen Xxxxxxxxx.Xxx, 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 Prospectus
referred to in the Selected Dealers Agreement and Selected Dealer letter.
We further state that in purchasing said Shares and/or Warrants we have
relied upon said Prospectus 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 National Association of Securities Dealers,
Inc. ("NASD"); 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 NASD, we hereby agree to
comply with all of the provisions of NASD Conduct Rules. If we are a
foreign Selected Dealer, we agree to comply with the provisions of Rule
2740 of the NASD Conduct Rules, and if we are a foreign dealer and not a
member of the NASD, we agree to comply with the NASD's interpretation with
respect to free-riding and withholding, and agree to comply, as though we
were a member of the NASD, with provisions of Rules 2730 and 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.
Firm:_________________________________
By:_________________________________
(Name and Position)
Address:_________________________________
_________________________________
Telephone No.:_________________________________
Dated: ____________________, 2000
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