EXHIBIT 1.2
NORTHRIDGE CAPITAL CORPORATION
SELECTED DEALER AGREEMENT
August ___, 1997
[Insert Name
and Address of
Additional Selling Agent(s)]
Re: Heartland Communications & Management, Inc.
Ladies and Gentlemen:
Northridge Capital Corporation (the "Selling Agent") has agreed to serve as
exclusive lead placement agent, on a best efforts basis, in connection with the
offer and sale of the common stock (the "Shares") of Heartland Communications &
Management, Inc., a Delaware corporation ("HCMI"). Up to $20,000,000 Shares
shall be offered by the Selling Agent and a selected dealer group in this
offering (the "Offering").
The Selling Agent has entered into a Managing Placement Agent Agreement
(the "Agency Agreement") dated August ___, 1997 with HCMI pursuant to which
the Selling Agent has agreed to use its best efforts to obtain subscribers
for the Shares. A copy of such Agency Agreement has been furnished to you
and is hereby incorporated by reference; you understand the terms used in
this Agreement shall have the meanings ascribed to them in the Agency
Agreement and/or the Prospectus unless the context indicates otherwise. As
provided in such Agency Agreement, HCMI has agreed that the Selling Agent
may, in its discretion, use the services of other members of the National
Association of Securities Dealers, Inc. (the "NASD") or of any foreign
securities firm which is eligible for membership in the NASD and which agrees
to abide by the NASD Rules of Fair Practice (collectively, "Additional
Selling Agents"), in connection with the offer and sale of the Shares. You
are invited to become one of the Additional Selling Agents and, by your best
efforts, to obtain subscribers for the Shares in accordance with the Agency
Agreement and the following terms and conditions.
All Shares, if any, will be offered to members of the general public,
subject to HCMI's right to reject such orders in whole or in part. The
offering to the general public may include the sale by other members of the
National Association of Securities Dealers, Inc. (the "NASD"). Such members
shall be part of a selling group managed by the Selling Agent. All purchases
will be subject to the maximum and minimum purchase limitations and other
terms and conditions described in the Prospectus.
All orders must include acceptable payment (or appropriate instructions
authorizing withdrawal of payment from one or more escrow accounts at the
escrow agent bank described in the Prospectus) and appropriate documentation
including a completed Subscription Agreement and Power of Attorney.
Deposits for the purchase of Shares will earn interest (based upon the
interest
rate received on the escrow account) from receipt of the payment by the
Escrow Agent (described in the Prospectus) to the date on which such sales of
the Shares are actually consummated.
The Selling Agent has been advised by HCMI that the Prospectus was
declared effective by the Securities and Exchange Commission on August ___,
1997 (the "Effective Date"). The Shares will be offered and sold on the
terms and subject to the conditions set forth herein and in the Prospectus.
All Shares will be offered and sold at the same $5.00 price per share
Selling Price (as defined). Following completion of the Initial Offering
Period (as defined) and until the end of this up to eighteen (18) month
Offering Period, subscribers must subscribe for and submit payments for a
specific number of shares at the Selling Price.
You are invited to become one of the selected dealers (a "Dealer") with
respect to the sale of the Shares, and by your confirmation hereof, you agree
to act in the capacity of a selected dealer and to use your best efforts to
find purchasers for the Shares in accordance with the following terms and
conditions:
1. Solicitation and Solicitation Material; Best Efforts.
a. Solicitation and other activities by Dealer hereunder shall be
undertaken only in accordance with applicable laws and regulations and the
terms hereof. Accompanying this letter is a copy of the Prospectus prepared
by HCMI for use in conjunction with the Offering and sale of the Shares.
Additional copies of the Prospectus and of all amendments and supplements
thereto will be furnished to you by the Selling Agent in reasonable
quantities upon your request. Dealer is not authorized to use any
solicitation material other than such Prospectus or such other material as
may be provided by HCMI. Any such other material that is provided by HCMI is
hereinafter referred to as "Supplemental Literature."
b. Dealer agrees to use its best efforts to procure subscribers for
Shares during a period commencing current with the Effective Date and ending
at 5:00 P.M., Eastern Time, on _____________, 1997, subject to an extension
up to _________, 1998, unless earlier terminated or extended at the option of
HCMI.
2. Compensation.
a. As compensation for the services of Dealer in soliciting and
obtaining purchasers of the Shares, unless otherwise agreed in writing by
the Selling Agent, Dealer will receive a selling concession equal to __% of
the aggregate subscription on Shares sold by Dealer. Neither the Selling
Agent nor HCMI shall be responsible for any costs or expenses incurred by
Dealer in connection with the performance of Dealer's obligations under this
Agreement. All such costs and expenses shall be borne by Dealer.
b. Dealer will not be entitled to receive compensation pursuant to
this Section 2 in any case in which it is determined by the Selling Agent
that (i) the solicitation by Dealer was made in violation of applicable law
or the terms of this Agreement; (ii) Dealer is not a member in good
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standing of (or an entity not properly exempt from membership in) the
National Association of Securities Dealers, Inc. (the "NASD") or a licensed
broker_dealer in good standing under applicable laws at the time compensation
would otherwise be payable to Dealer hereunder; or (iii) Dealer has not
delivered to the Selling Agent an executed original of this Agreement signed
by an authorized officer of Dealer.
c. Dealer will not be entitled to receive compensation pursuant to this
Section 2 with respect to subscriptions obtained by Dealer if such
subscriptions are not accepted by HCMI for any reason, including termination
of the Offering by HCMI prior to subscription of the maximum amount of Shares
being offered. HCMI has the right, to be exercised in its sole discretion,
to reject any subscription for any reason whatsoever.
d. In the event that the Selling Agent delivers compensation to Dealer
and it is subsequently determined by the Selling Agent that all or part of
such compensation violates Subsection (b) or (c) of this Section 2, the
Selling Agent shall notify Dealer of the amount of compensation wrongfully
paid. Dealer shall refund the amount of compensation specified in the notice
within five (5) business days of the day on which Dealer receives such notice.
3. Unauthorized Information and Representations. Neither Dealer nor any
other person is authorized by the Selling Agent or HCMI to give any
information or make any representations in connection with this Agreement or
the Offering or sale of the Shares other than the information or
representations contained in the Prospectus, as supplemented or amended, or
any Supplemental Literature. Dealer agrees not to publish, circulate or
otherwise use any advertising or solicitation material other than the
Prospectus, as supplemented or amended, or any Supplemental Literature.
4. Compliance with Securities Act of 1933 and the Securities Exchange
Act of 1934. In making offers and sales of the Shares, Dealer agrees to
comply with any applicable requirements of the Securities Act of 1993, as
amended (the "1933 Act"), and the Securities Exchange Act of 1934, as amended
(the "1934 Act"), and the rules and regulations thereunder.
5. Representations and Warranties of Dealer. Dealer represents and
warrants to, and agrees with, the Selling Agent as follows:
a. Authority and Non_Contravention. Dealer has all requisite
corporate power and authority to enter into this Agreement. The execution,
delivery and performance of this Agreement will not conflict with or result
in a breach of any of the provisions of, or constitute a default under, or
result in the creation or imposition of any lien, charge or encumbrance upon
any of the property or assets of Dealer pursuant to the terms of any
agreement or instrument to which Dealer is now a party, or by which Dealer
will be bound, and will not conflict with or result in a violation of any
law, governmental or administrative regulation or court decree applicable to
Dealer or of the provisions of Dealer's Articles of Incorporation, if any.
b. NASD Membership. Except as to foreign brokers properly exempt
from such requirements, Dealer is a member in good standing of the NASD, and
in making the offers and sales of the Shares, Dealer will comply with the
NASD's Interpretation with respect to Free-Riding and Withholding and with
the provisions of Sections 8, 24, 25 and 36 of Article III of the NASD Rules
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of Fair Practice. Neither Dealer nor any of its directors, officers,
partners, affiliates, associates or any person who constitutes a "related
person" of Dealer (as the term "related person" is defined in the NASD Rules
of Fair Practice) (i) has participated in any private placement involving the
securities of HCMI, and/or any affiliate thereof or purchased any such
securities in a private transaction within the 18 months preceding the date
hereof; (ii) has purchased any warrants, options or other securities of HCMI
and/or any affiliate thereof within the 12 months preceding the date hereof
or (iii) has had any other dealings with HCMI or any subsidiary or
controlling shareholder thereof, other than relating to this Agreement, as to
which documents or information are required to be filed with the NASD
pursuant to its Interpretation with respect to Review of Corporate Financing.
c. Licensed Broker-Dealer. Dealer is registered as a broker-dealer
(or any similar term) under the 1934 Act and the securities laws of each
state in which Dealer conducts its solicitation activities (or, if a foreign
broker is properly exempt from such requirements).
d. Employees of Dealer. All employees of Dealer are duly licensed
under applicable law to carry out the transactions contemplated by this
Agreement.
e. Additional Investment Qualifications. Dealer will not offer or
sell the Shares to any pension and profit sharing plans, any individual
retirement account arrangements or any other qualified retirement plans
sponsored by HCMI and/or any other affiliate of such entities that are
ineligible to invest in the Shares because of potential prohibited
transaction issues which may arise in connection with such investment
pursuant to Section 4975 of the Internal Revenue Code of 1986, as amended,
and Section 406 of the Employee Retirement Security Act of 1974, as amended.
f. Offers. Dealer will effect offers in compliance with applicable
law and will not make an offer without delivering a copy of the Prospectus,
as supplemented or amended, to the offeree.
g. Delivery of Subscription Agreement. Dealer will cause each
subscriber solicited by Dealer to complete, execute and deliver to the
Subscription Agreement authorized for use by HCMI, together with a check,
bank draft or money order payable, to the order of Heartland Communications &
Management, Inc. --Escrow Account during both the Initial Offering Period (as
defined) and the balance of this up to nine (9) month Offering Period (as
defined). Such payment shall be in an amount equal to $5.00 per share during
the Initial Offering Period and the Selling Price per share of the Shares
purchased during the balance of the up to nine (9) month Offering Period.
Checks shall be delivered to the Escrow Agent by 12:00_p.m. of the next
business day after receipt by Dealer.
h. Reports. Dealer will advise the Selling Agent on a daily basis
of the amount of Shares sold by Dealer.
6. Blue Sky Matters. Dealer will be informed as to the states in which
HCMI's counsel has advised the Selling Agent that the Shares have been
registered or otherwise qualified for sale or exempt under the respective
states' securities laws. The Selling Agent has not assumed and will not
assume any obligation or responsibility as to whether the Shares is so
registered or otherwise qualified or exempt or whether the Shares can be
offered and sold in any such state.
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7. Liability. As manager of the Offering, the Selling Agent shall have
full authority to take such action as it may deem advisable in respect to all
matters pertaining to the Offering or arising thereunder. The Selling Agent
shall be under no liability to Dealer, except such as may be incurred under
the 1933 Act and except for lack of good faith and for obligations expressly
assumed by Selling Agent in this Agreement. No obligation on the part of the
Selling Agent shall be implied or inferred herefrom. Nothing will constitute
the Dealers as an association or separate entity or partners with the Selling
Agent, or with each other, but Dealer will be responsible for its share of
any liability or expense based on any claim to the contrary.
8. Effective Date of This Agreement and Termination. Provided that
Dealer has executed and delivered one copy of this Agreement to the Selling
Agent, this Agreement shall become effective at McLean, Virginia, concurrent
with the Offering's Effective Date. This Agreement will terminate at the
earlier of (i) the expiration of the Offering Period, (ii) the day and time
HCMI, in its sole discretion, terminates the Offering or (iii) the day and
time the Selling Agent, in its sole discretion, terminates this Agreement;
provided, however, any termination under clause (ii) or (iii) of this Section
8 must be preceded by a written notice to Dealer that specifies the time and
date of termination and is received by Dealer at least three (3) business
days before the date of termination; provided, further, that any such
termination pursuant to this Section 8 shall not affect any previously
incurred obligation hereunder to pay compensation pursuant to this Agreement.
9. Survival of Representations and Warranties. The representations and
warranties set forth in Section 5 hereof shall remain in full force and
effect and survive the termination of this Agreement.
10. Parties. This Agreement shall be binding upon, and inure solely to
the benefit of HCMI, the Selling Agent and Dealer and their respective
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Shares
shall be deemed a successor or assign solely by reason of such purchase.
11. Partial Invalidity. The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other Section, paragraph or provision
hereof. If any Section, paragraph or provision of this Agreement is for any
reason determined to be invalid or unenforceable, there shall be deemed to be
made such minor changes (and only such minor changes) as are necessary to
make it valid and enforceable.
12. Entire Agreement. This Agreement constitutes the entire agreement of
the parties to this Agreement and supersedes all prior written or oral and
all contemporaneous oral agreements, understandings and negotiations with
respect to the subject matter hereof. This Agreement may be executed in
several counterparts, each one of which shall be an original, and all of
which shall constitute one and the same document.
13. Notices. Any notice from the Selling Agent to Dealer shall be deemed
to have been duly given if mailed or faxed (with original to follow) to
Dealer at the address set forth herein. Any notice from Dealer to the
Selling Agent shall be deemed to have been duly given if mailed or
telegraphed to the Selling Agent at 000 Xxxxxxxx Xxxx Xxxxx -- Xxxxx 000,
Xxxxxxx, Xxxxxxx 00000 (Attn: Xxxxxxx Xxxxx, President).
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14. Attorney's Fees. In the event that any party hereto must resort to
legal action in order to enforce the provisions of this Agreement or to
defend any such suit, the prevailing party shall be entitled to reimbursement
from the other party for all reasonable attorney's fees and other costs
incurred in commencing or defending such suit.
15. Headings. The headings herein are for convenience of reference only,
do not constitute a part of this Agreement and shall not be deemed to limit
or affect any of the provisions hereof.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia.
17. Confirmation. Please confirm your agreement to become a soliciting
dealer under the terms and conditions set forth herein by executing and
returning the enclosed duplicate copy of this Agreement at once to the
Selling Agent at 000 Xxxxxxxx Xxxx Xxxxx -- Xxxxx 000, Xxxxxxx, Xxxxxxx 00000.
Very truly yours,
NORTHRIDGE CAPITAL CORPORATION
By:____________________________
Xxxxxxx Xxxx Xxxxx, President
This Selected Dealer Agreement is
accepted and confirmed this
______ day of ___________, 199__.
DEALER/NAME:_____________________
By:______________________________
Name:____________________________
Title:___________________________
Address:_________________________
_________________________________
Telephone No. (____)_____________
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EXHIBIT A
HEARTLAND COMMUNICATIONS & MANAGEMENT, INC.
MANAGING PLACEMENT AGENT AGREEMENT
[TO BE ATTACHED.]
