EXHIBIT 1.3
SELLING AGREEMENT
This SELLING AGREEMENT made and entered into this _____ day of September,
2000, by and between Futurus Financial Services, Inc. a Georgia corporation (the
"Company") and Midsouth Capital, Inc., a South Carolina corporation and
registered securities broker-dealer ("Selling Agent").
IN CONSIDERATION OF the promises herein contained, the Company and the
Selling Agent agree as follows:
1. EMPLOYMENT OF SELLING AGENT. The Company hereby employs the Selling
Agent as its non-exclusive agent to sell for its account up to shares of its
authorized but unissued common stock (the "Shares") at a price of $10.00 per
share (the "Offering").
1.1 The Selling Agent shall use its best efforts as agent,
promptly following the receipt of written notice of the effective date of the
Offering, to sell the Common Stock subject to the terms, provisions and
conditions herein.
1.2 This Agreement shall terminate120 days after the effective
date of the Offering, or upon the sale of the Shares that are the subject of
this Agreement, whichever occurs first, unless the parties agree to extend this
Agreement.
1.3 The Selling Agent shall sell the Shares only in states in
which the Offering has been qualified or is determined by the Company to be
exempt from qualification. Those states are listed on Exhibit "A" attached.
1.4 The Selling Agent may offer the shares through securities
dealers selected by it and to pay such dealers out of the commissions received
by the Selling Agent whatever compensation the Selling Agent may determine.
2. SUBSCRIPTIONS AND SUITABILITY. The Company shall accept each
subscription for Shares sent to the Company by the Selling Agent , subject to
the terms and conditions specified in the Company's Registration Statement on
Form SB-2, as amended (Registration No. 333-30144) (the "Registration
Statement," with part I thereof being the "Prospectus"), if (a) such
subscription is accompanied by a subscription agreement and, if required for
exemption from qualification, an investor questionnaire in acceptable form and
by full payment for the Shares subscribed, (b) the subscription is for a
minimum of 100 Shares, (c) the subscriber lives in a state in which the Offering
has been qualified or determined to be exempt from qualification, (d) to the
extent an exemption from qualification is being relied upon, the subscriber
meets any and all exemption requirements as determined by the Company, and (d)
the subscriber meets the Company's suitability standards for purchasers.
3. COMPENSATION. The Selling Agent shall receive a commission of five
percent (5%) of the net proceeds of the Shares subscribed for, funded and
accepted in accordance with this Agreement and the Company's Registration
Statement and for which the subscriber has designated the Selling Agent by
completing the "Broker-Dealer Name and Address" section of the subscription
forms received by the escrow agent. The Selling Agent and the Company may agree
in writing that compensation shall be payable in a mix of cash and shares of
Common Stock of the Company. Payment of the commission shall be made at such
times as the Shares sold are accepted by and payment in full is received
therefor by the escrow agent and released to the Company and in no event later
than ten (10) days after the subscription proceeds are released to the Company.
4. DUTIES OF THE COMPANY. The Company agrees, at its sole expense, to
the following:
4.1 The Company will promptly advise Selling Agent of any filing
with the Securities and Exchange Commission (the "Commission") of the
Registration Statement or any amendment or supplement to the Registration
Statement, and will provide Selling Agent with at least two (2) business days to
review any such amendment or supplement prior to its filing with the Commission
if such amendment or supplement concerns this Agreement, or any of the services
to be provided by Selling Agent under this Agreement, or the use of any name or
recognized trademark of Selling Agent. The Company will use its best efforts to
cause any such amendment to the Registration Statement to be declared effective
as promptly as possible. The Company will advise Selling Agent, promptly after
receiving notice thereof, of the time when the Registration Statement or any
amendment thereto has been filed or declared effective.
4.2 The Company will advise the Selling Agent promptly after
receiving notice or obtaining knowledge of (i) the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement or any
part thereof or any order preventing or suspending the use of any the Prospectus
or any amendment or supplement thereto, (ii) the suspension of the qualification
of the Shares for offer or sale in any jurisdiction or of the initiation or
threatening of any proceeding for any such purpose, or (iii) any request made by
the Commission or any securities authority of any other jurisdiction for
amending the Registration Statement, for amending or supplementing the
Prospectus or for additional information. The Company will use its best efforts
to prevent the issuance of any such stop order and, if any such stop order is
issued, to obtain the withdrawal thereof as promptly as possible.
4.3 To use its best efforts to cause the securities covered hereby
to be qualified for sale, and continue its qualification, under the Blue Sky
laws in the states listed on Exhibit "A" and any other states in which the
Company, in its sole discretion, may decide to qualify the Shares.
5. INDEMNIFICATION BY COMPANY. The Company shall and hereby does
indemnify, defend and hold the Selling Agent and each person, if any, who is an
associated person of the Selling Agent within the meaning of Section 3(18) of
the Securities Exchange Act of 1934 ("Associated Person") free and harmless from
and against any and all losses, claims, demands, liabilities, and expenses,
including reasonable legal expenses incurred by the Selling Agent and any
Associated Person in connection with defending any claims or liabilities(whether
or not resulting in any liability to the Selling Agent or to any Associated
Person), which the Selling Agent or Associated Person may incur under the
Securities Act of 1933, as amended (the "Act"), or at common law or otherwise,
but only to the extent that the losses, claims, demands, liabilities, and
expense arise out of or are based upon (a) any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement and
Prospectus, any amendments thereto; (b) any omission or alleged omission to
state in the Registration Statement and Prospectus a material fact required to
be stated in them or necessary to make the statements in them not misleading;
(c) any other breach by the Company of its duties under this Agreement.
5.1 The indemnity in this Section 5 shall (a) not apply to any
losses, claims, demands, liabilities, or expenses arising out of or based upon
any untrue statement or alleged statement of a material fact furnished to the
Company by any Selling Agent in writing expressly for use in connection with the
Offering, or made by Selling Agent not in reliance upon written information
furnished by the Company, and (b) protect the Selling Agent against any
liability to which the Selling Agent would otherwise be subject by reason of
willful misfeasance or malfeasance, bad faith or gross negligence in the
performance of its duties, or by reason of reckless disregard of its obligations
and duties under this Agreement or any obligations or duties arising from the
Selling Agent's status as a broker-dealer under any laws, regulations or rules
promulgated by any federal or state government, or self-governing body to which
the Selling Agent is a member of or should be a member of.
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5.2 In the event that indemnity is properly sought by the Selling
Agent or any Associated Person under this Section 5, the Selling Agent or the
Associated Person, as the indemnified party, shall notify the Company in writing
of the indemnified action as soon as practicable; whereupon the Company shall
have the right to participate therein and, to the extent that it shall wish, to
assume the defense thereof, with counsel satisfactory to such indemnified party
(who shall not, except with the consent of the indemnified party, be counsel to
the indemnifying party); provided, however, that if the defendants in any such
action included both the indemnified party and the indemnifying party, and the
indemnified party shall have reasonably concluded that there may be one or more
legal defenses available to it or other indemnified parties which are different
from or additional to those available to the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such action
on behalf of such indemnified party and such indemnified party shall have the
right to select separate counsel to defend such action on behalf of such
indemnified party. After such notice from the indemnifying party to such
indemnified party of the indemnifying party's election so to assume the defense
of any action and approval by such indemnified party of counsel appointed to
defend such action, the indemnifying party will not be liable to such
indemnified party under this Section 5 for any legal or other expenses, other
than reasonable costs of investigation, subsequently incurred by such
indemnified party in connection with the defense of the action, unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence (it being understood, however, that in
connection with such action the indemnifying party shall not be liable for the
expenses of more than one separate counsel (in addition to local counsel) in any
one action or separate but substantially similar actions in the same
jurisdiction arising out of the same general allegations or circumstances, which
separate counsel shall be designated by the Selling Agent in the case of
indemnity arising under this Section 5) or (ii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense of
the indemnifying party. Nothing in this Section 5 shall preclude an indemnified
party from participating at its own expense in the defense of any such action so
assumed by the indemnifying party.
5.3 The Company's indemnity in this Section 5 is expressly
conditioned upon notice of any action being sent by the Selling Agent or
Associated Person, as the case may be, to the Company, by letter or facsimile
(addressed as provided herein), promptly after the commencement of the action
against the Selling Agent or Associated Person. Such notice must either be
accompanied by copies of papers served or filed in connection with the action or
by a statement of the nature of the action to the extent known to the Selling
Agent or Associated Person. Failure to notify the Company within a reasonable
time of an action shall relieve the Company of its liabilities under this
Section 5, but failure to notify the Company shall not relieve the Company from
any direct liability that the Company may have to the Selling Agent otherwise
than on account of the indemnity agreement contained in this Section 5
5.4 The provisions of this Section 5 shall not prejudice any right
or rights that the Selling Agent may have against the Company under any statute
other than the Act, at common law or otherwise.
5.5 The indemnity agreements contained in this Section 5 shall
survive the termination of the Offering.
6. INDEMNIFICATION BY SELLING AGENT. The Selling Agent shall and
hereby does indemnify, defend and hold harmless the Company against and each
person, if any, who is an affiliate or an associate of the Company within the
meaning of Rule 405 promulgated under the Act (collectively, an "Affiliated
Person") free and harmless from and against any and all losses, claims, demands,
liabilities, and expenses, including reasonable legal expenses incurred by the
Company and any Affiliated Person in connection with defending any claims or
liabilities (whether or not resulting in any liability to the Company or to any
Affiliated Person), which the Company or Affiliated Person may incur under any
federal or state securities laws, or at common law, or otherwise, for (a) any
untrue statement or alleged .untrue statement of a material fact used, issued,
published, or put forth by the Selling Agent that was not an authorized, written
statement by the Company, or (b) an omission or alleged omission of any
material fact required to be stated or necessary to make any statements made by
the Selling Agent not misleading.
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6.1 The indemnity in this Section 6 shall not protect the Company
against any liability to which the Company would otherwise be subject by reason
of willful misfeasance or malfeasance, bad faith or gross negligence in the
performance of its duties, or by reason of reckless disregard of its obligations
and duties under this Agreement or the Act.
6.2 The Selling Agent shall have the same rights and obligations
of the indemnifying party set forth in Section 5.2 hereof, and the Company shall
have the same rights and obligations of the indemnified party also set forth in
Section 5.2 hereof, with respect to the foregoing indemnification by the Selling
Agent.
6.3 This indemnity is expressly conditioned upon notice of any
action being sent by the Company to the Selling Agent, by letter or by facsimile
(addressed as provided in this Agreement), promptly after the commencement of
the action against the Company. The notice must either be accompanied by copies
of papers served or filed in connection with the action or by a statement of the
nature of the action to the extent known to the Company. Failure to notify the
Selling Agent of any action shall relieve the Selling Agent of its liability
under the foregoing indemnity, but failure to notify the Selling Agent shall not
relieve the Selling Agent from any direct liability which the Selling Agent may
have to the Company or its stockholders otherwise than on account of the
indemnity agreement contained in this Section 6.
6.4 The provisions of this Section 6 shall not in any way
prejudice any right or rights that the Company may have against the Selling
Agent under any statute other than the Act, at common law or otherwise.
6.5 The Indemnity agreements contained in this Section 6 shall
survive the termination of the Offering.
7. PAYMENT OF EXPENSES. The Company shall, at its own expense and
without expense to the Selling Agent, pay all costs and expenses incident to the
Offering, including but without limitation, (a) all expenses in connection with
the preparation and printing of any Prospectus, as well as all amendments to
it; and (b) all filing fees and costs, original issue taxes, transfer agent's
fees, charges, or disbursements connected with the issue and delivery of the
securities covered by this Agreement.
8. CONDITIONS PRECEDENT TO SELLING AGENT'S OBLIGATIONS. The obligations
hereunder of the Selling Agent are conditioned upon:
8.1 The approval by the Selling Agent of the organization and present
legal standing of the Company, and of the legality and validity of the
authorization and issuance of the issued and outstanding stock of the Company
and of the securities to be offered hereunder, which approval shall not be
unreasonably withheld.
8.2 The Company's performance of all the obligations required by
it to be performed hereunder and the truth, completeness and accuracy of all
statements and representations contained herein or of any financial statements
furnished hereunder.
8.3 No material adverse change occurring in the properties and
assets of the Company, other than changes occurring in the ordinary course of
business.
8.4 No substantial claim being made or legal action for
substantial amounts being instituted against the Company, and no reasonable
basis for a claim or an action of this nature being discovered.
8.5 The Company not sustaining any loss on account of fire, flood,
accident, or calamity of a character that materially adversely affects its
business or property, regardless of whether the loss is insured; no litigation
being instituted or threatened against the Company of a character required to be
disclosed that is not disclosed and that shall materially adversely affect the
Company, its business or its property; and no substantial adverse change
occurring in the operations or financial condition or credit of the Company or
in any conditions affecting the prospects or business of the Company.
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8.6 The Selling Agent determining, in its sole and uncontrolled
discretion, that there has been no substantial change in the financial,
political or market conditions or circumstances where the Shares are actively
being sold by the Selling Agent that makes it undesirable, impracticable or
inadvisable to proceed as a sales agent of the Company.
9. MISCELLANEOUS.
9.1 This Agreement shall inure to the benefit of, and be binding
upon, the Company and its directors, officers and Affiliated Persons, and the
Selling Agent and its Associated Persons, and their representative successors.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person other than the persons mentioned in the preceding
sentence any legal or equitable right, remedy or claim under or with respect
hereto, or any provisions contained herein. This Agreement and all of its
conditions and provisions are for the sole and exclusive benefit of the
foregoing persons and for the benefit of no other person.
9.2 This writing sets forth the entire agreement between the
parties hereto, and no representation, warranty, understanding, or agreement not
specifically set forth herein shall be binding upon either party hereto.
9.3 Any notice required or permitted to be given under or pursuant
to this Agreement may be given in writing by depositing the notice in the United
States mail, postage prepaid, addressed as follows:
To the Selling Agent:
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Midsouth Capital, Inc.
000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
attn: Xxxx X. Xxxxxxxx. Jr.
or by facsimile, receipt confirmed by the sending machine, to (000)000-0000
To the Company:
----------------
Futurus Financial Services, Inc.
000 Xxxxx Xxxx Xxxxxx, Xxxxx 000X
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx
or by facsimile, receipt confirmed by the sending machine, to (000)000-0000
9.4 This Agreement is made in, intended to be performed
substantially within, and interpreted and enforced in accordance with, the laws
of the State of Georgia without giving effect to any conflict of laws doctrine.
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9.5 This Agreement may be signed in one or more counterparts, each
signed copy of which shall be deemed to be an original, but which together shall
constitute one and the same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
day, month and year first written above.
FUTURUS FINANCIAL SERVICES, INC.
By:
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Xxxxxxx X. Xxxxxx
President and CEO
MIDSOUTH CAPITAL, INC.
By:
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Name:
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Title:
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