EXHIBIT 1.3
XXXXX AND XXXXX & COMPANY, INC.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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VOICENET, INC.
(a Delaware corporation)
750,000 Shares or None Offering
Up to 1,875,000 Shares
SELECTED DEALER'S AGREEMENT
XXXXX AND HATCH & COMPANY, INC., as Underwriter for VOICENET, INC., a
Delaware corporation (the "Company"), invites your participation as a Selected
Dealer ("Selected Dealer") in an offering of up to 1,875,000 Shares at $8.00 per
Share, par value $.01 per share. The Underwriter is offering the Shares
pursuant to a Registration Statement filed under the Securities Act of1933, as
amended ("the 33 Act"), subject to the terms of (a) its Underwriting Agreement
with the Company, (b) this Agreement and (c) the Underwriter's instructions
which may be forwarded to the Selected Dealers from time to time. This
invitation is made by the Underwriter only if the Shares may be lawfully offered
by dealers in your state. The terms and conditions of this invitation are as
follows:
1. ACCEPTANCE OF ORDERS. Orders received from the Selected Dealers will be
accepted only at the price, in the amounts and on the terms which are set forth
in the Company's current Prospectus.
2. SELLING CONCESSION. All Selected Dealers will be allowed on all Shares
sold by them, a commission of of the total sales price ( of the
full 9% commission or per Share) as shown in the Company's current
Prospectus.
3. SELECTED DEALERS SALES. The Selected Dealer shall purchase the Shares
for its customers only through the Underwriter, and all such purchases shall be
made only upon orders already received by the Selected Dealer from its
customers. No Shares may be purchased for the account of the Selected Dealer or
its principals. In all sales of the Shares to the public, the Selected Dealer
shall confirm as agent for another.
4. DELIVERY OF FUNDS. The Selected Dealer shall promptly transmit to the
escrow agent no later than 12 noon of the day subsequent to the receipt of funds
all funds received from
purchasers and a confirmation or a record of each sale which shall set forth the
name, address and social security number of each individual purchaser, the
number of Shares purchased, and, if there is more than one registered owner,
whether the certificate or certificates evidencing the
securities purchased are to be issued to the purchaser in joint tenancy or
otherwise. Also, each Selected Dealer shall report, in writing, to the
Underwriter the number of persons in each such state who purchase the Shares
from Selected Dealers. Each sale may be rejected by the Underwriter; and if
rejected, the escrow agent will return to the purchaser all funds paid by the
purchaser which have been received by the escrow agent.
5. PAYMENT FOR SALES. Payment for the Company's Shares shall accompany all
confirmations and applications and shall be in clearing house funds. All checks
and other orders for the payment of money shall be made payable to the escrow
agent for deposit into an escrow account maintained at and
entitled "Escrow Account for the Benefit of Subscribers to Voicenet, Inc's
Securities." Shares sold by the Selected Dealer will be available for delivery
at Continental Stock Transfer & Trust Company, unless other arrangements are
made with the Underwriter for delivery.
6. DEPOSIT OF SALES PROCEEDS. The proceeds from the sale of all of the
Shares sold in the offering (the "offering proceeds") will be deposited in the
escrow account mentioned in Paragraph 5 hereof. In the event that offering
proceeds in an amount of $6,000,000 have not been deposited and cleared within
ninety (90) days from the date the Company's Registration Statement is declared
effective (unless extended by mutual written consent for an additional ninety
(90) days) by the Securities and Exchange Commission, the full amount paid will
be refunded to the purchasers. No certificates evidencing the Shares will be
issued unless and until offering proceeds in an amount of $6,000,000 have been
cleared and such funds have been released and the net proceeds thereof delivered
to the Company. If offering proceeds in an amount of $6,000,000 are cleared
within the time period provided above, all amounts so deposited will be
delivered to the Company, except that the Underwriter may deduct its
underwriting commissions from the proceeds of the offering prior to the delivery
of such proceeds to the Company. No commissions will be paid by the Company or
concessions allowed by the Underwriter unless and until offering proceeds in a
minimum amount of $6,000,000 have been cleared and such funds have been released
and the net proceeds thereof delivered to the Company. However, it is
understood that if the required funds relating to the 750,000 Shares are
received and deposited within the Escrow Account referred to in Paragraph 4
hereof, but not cleared within the time set forth above, then up to an
additional ten (10) business days shall be allowed for the sole purpose of
clearance of such funds and the Closing of the offering.
7. FAILURE OF ORDER. If an order is rejected or if a payment is received
which proves insufficient, any compensation paid to the Selected Dealer shall be
returned either by the Selected Dealer in cash or by a charge against the
account of the Selected Dealer, as the Underwriter may elect.
8. CONDITIONS OF OFFERING. All sales will be subject to delivery by the
Company of
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certificates evidencing the securities.
9. SELECTED DEALER'S UNDERTAKINGS. No person is authorized to make any
representations concerning the Company's Shares except those contained in the
Company's then current Prospectus. The Selected Dealer will not sell the
Company's Shares pursuant to this Agreement unless the Prospectus is furnished
to the purchaser at least forty-eight (48) hours prior to the mailing of the
confirmation of sale, or is sent to such persons under such circumstances that
it would be received by him 48 hours prior to his receipt of a confirmation of
the sale. The Selected Dealer agrees not to use any supplemental sales
literature of any kind without prior written approval of the Underwriter unless
it is furnished by the Underwriter for such purpose. In offering and selling
the Company's Shares, the Selected Dealer will rely solely on the
representations contained in the Company's then current Prospectus. Additional
copies of the then current Prospectus will be supplied by the Underwriter in
reasonable quantities upon request.
The Selected Dealer understands that during the ninety (90) day period
after the first date upon which the Company's Shares are bona fide offered to
the public, all dealers effecting transactions in the Company's Shares may be
required to deliver the Company's current Prospectus to any purchaser thereof
prior to or concurrent with the receipt of the confirmation of sale. Additional
copies of the then current Prospectus will be supplied by the Underwriter in
reasonable quantities upon request.
10. REPRESENTATIONS AND AGREEMENTS OF SELECTED DEALERS. By accepting this
Agreement, the Selected Dealer represents that either (a) it is registered as a
broker-dealer under the Securities Exchange Act of 1934, as amended; is
qualified to act as a dealer in the states or other jurisdictions in which it
offers the Company's Shares; is a member in good standing with the National
Association of Securities Dealers, Inc. ("NASD"), and will maintain such
registrations, qualifications and memberships throughout the term of this
Agreement, or (b) is a foreign bank, dealer or institution not eligible for
membership in the NASD which agrees to make no sales in the United States, its
territories or possessions or to persons who are citizens thereof or residents
therein, and in making other sales to comply with the NASD's interpretation with
respect to free-riding and withholding. Further, the Selected Dealer agrees to
comply with all applicable Federal laws, the laws of the states or other
jurisdictions concerned and the Rules and Regulations of the NASD, and in
particular the Selected Dealer agrees that in connection with any purchase or
sale of the Company's Shares wherein a selling concession, discount or other
allowance is received or granted (1) that it will comply with the decisions of
Conduct Rule 2740 of the NASD or (2) if a non-NASD member, broker or dealer in a
foreign country, it will also comply with the provisions of Conduct Rules 2730
and 2750 thereof as though it were a NASD member and with the provisions of
Conduct Rule 2420 as such Conduct Rule 2420 applies to a non-NASD member, broker
or dealer in a foreign country. Further, the Selected Dealer agrees that it
will not offer to sell the Company's Shares in any state or jurisdiction except
the states in which it is licensed as a broker-dealer under the laws of such
states. The Selected Dealer shall not be entitled to any compensation during
any period in which it has been suspended or expelled from membership in the
NASD.
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11. SELECTED DEALER'S EMPLOYEES. 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 Shares, giving special emphasis to the
principles of suitability and full disclosure to prospective investors and
prohibitions against "free-riding and withholding."
12. INDEMNIFICATION. The Company has agreed in the Underwriting Agreement
to indemnify and hold harmless the Underwriter (including within the definition
of Underwriter, any member of the Selected Dealer group) and each person, if
any, who controls the Underwriter within the meaning of Section 15 of the 33 Act
or under any other statute or at common law and will reimburse the Underwriter
and each such person specified as above for any legal or other expenses
(including the cost of any investigation and preparation) reasonably incurred by
them or any of them in connection with any litigation or claim whether or not
resulting in any liability, but only insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any post-effective amendment thereto or in any Blue Sky application
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein necessary to make the
statements therein not misleading, all as of the date when the Registration
Statement or such post-effective amendment, or the filing of any such Blue Sky
application as the case may be, becomes effective or any untrue statement or
alleged untrue statement of a material fact contained in any preliminary
prospectus or final prospectus (as amended or as supplemented thereto), or arise
out of or are based upon the omission to state therein a material fact required
to be stated therein or necessary in order to make the statements therein, not
misleading; provided however, that the indemnity agreement contained in this
paragraph 12 shall not apply to amounts paid in settlement of any such
litigation if such settlement is effected without the consent of the Company nor
shall it extend to the Underwriter or any person controlling the Underwriter in
respect of any such losses, claims, damages, liabilities or actions arising out
of, or based upon any such untrue statement or alleged untrue statement, or any
such omission, if such statement or omission was made in reliance upon and in
conformity with written information furnished to the Company by the Underwriter
on behalf of such Underwriter specifically for use in connection with the
preparation of the Registration Statement, the Prospectus or any such amendment
thereof or supplement thereto or Blue Sky application.
13. SELECTED DEALER'S INDEMNIFICATION. The Selected Dealer agrees to
indemnify and hold harmless the Company, the Underwriter, each of the Company's
officers and directors who signed the Registration Statement, and each person,
if any, who controls the Company and the Underwriter within the meaning of
Section 15 of the 33 Act, against any and all loss, liability, claim, damage
and expense (a) described in the indemnity contained in Paragraph 12 of this
Agreement, but only with respect to untrue statements or omissions or alleged
untrue statements or omissions, made in the Registration Statement or the
Prospectus or any amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the
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Company by such Selected Dealer expressly for use in the Registration Statement
(or any amendment thereto) or the Prospectus (or any amendment or supplement
thereto) or (b) based upon alleged misrepresentations or omissions to state
material facts in connection with statements made by the Selected Dealer or the
Selected Dealer's salesmen orally or by other means; and the Selected Dealer
will reimburse the Company, the Underwriter, each of the Company's officers and
directors who signed the Registration Statement and each person, if any, who
controls the Company and the Underwriter within the meaning of Section 15 of the
33 Act, for any legal or other expenses reasonably incurred in connection with
the investigation of or the defending of any such action or claim.
14. REQUIRED NOTICES AND CLAIMS. Each indemnified party is required to
give prompt notice to each indemnifying party of any action commenced against it
in respect of which indemnity may be sought hereunder, but failure to so notify
an indemnifying party shall not relieve it from any liability which it may
otherwise have on account of the indemnification provisions hereof. Any
indemnifying party may participate at its own expense in the defense of such
action. If it so elects within a reasonable time after receipt of such notice,
an indemnifying party, jointly with any other indemnifying parties receiving
such notice, may assume the defense of such action with counsel chosen by it and
approved by the indemnified parties defendant in such action, unless such
indemnified parties reasonably object to such assumption on the ground that
there may be legal defenses available to them which are different from or in
addition to those available to such indemnifying parties and shall not be liable
for any fees and expenses of counsel for the indemnified parties incurred
thereafter in connection with such action. In no event shall the indemnifying
parties be liable for the fees and expenses of more than one counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances.
15. EXPENSES. No expenses will be charged to Selected Dealers. A
single transfer tax, if any, on the sale of the Shares by the Selected Dealer to
its customers will be paid when such Shares are delivered to the Selected Dealer
for delivery to its customers. However, the Selected Dealer will pay its
proportionate share of any transfer tax or any other tax (other than the single
transfer tax described above) if any such tax shall be from time to time
assessed against the Underwriter and other Selected Dealers.
16. COMMUNICATIONS. All communications to the Underwriter should be sent
to the address shown in the first page of this Agreement. Any notice to the
Selected Dealer shall be properly given if mailed or telephoned to the Selected
Dealer at the address given below. This Agreement shall be construed according
to the laws of the State of New York.
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17. ASSIGNMENT AND TERMINATION. This Agreement may not be assigned by the
Selected Dealer without the Underwriter's written consent. This Agreement will
terminate upon the termination of the offering of the Shares except that either
party may terminate this Agreement at any time by giving written notice to the
other.
XXXXX AND XXXXX & COMPANY, INC.
By:
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Date of Acceptance:
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Dealer Name:
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Address:
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Accepted:
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Telephone No.
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IRS Employer I.D. No.:
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Share Allocation:
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