EXHIBIT 1.2
XXXXXX, XXXXX XXXXX, INCORPORATED
000 XXXXX XXXXXX
XXXXXXXXX, XXXXXXXX 00000
--------------------------
SELECTED DEALERS AGREEMENT
----------------------------
Dear Sirs:
1. Registration under the Securities Act of 1933, as amended ("Act"), of the
10,000,000 Units* of Harbor Acquisition Corporation ("Company"), as more fully
described in the Preliminary Prospectus, dated ______________, 2005 and in the
final prospectus ("Prospectus") which will be forwarded to you, will become
effective in the near future. We, as the Underwriters, are offering certain of
the Units for purchase by a selected group of dealers ("Selected Dealers") on
the terms and conditions stated herein.
Authorized Public Offering Price: $6.00 per Unit.
Dealers' Selling Concession: Not to exceed $0. per Unit payable upon termination of this Agreement, except as provided
below. We reserve the right not to pay such concession on any of the Units purchased by any
of the Selected Dealers from us and repurchased by us at or below the price stated above
prior to such termination.
Reallowance: You may reallow not in excess of $0. per Unit as a selling concession to dealers who are
members in good standing of the National Association of Securities Dealers, Inc. ("NASD")
or to foreign dealers who are not eligible for membership in the NASD and who have agreed
(i) not to sell the Units within the United States of America, its territories or possessions
or to persons who are citizens thereof or residents therein, and (ii) to abide by the
applicable Conduct Rules of the NASD.
Delivery and Payment: Delivery of the Units shall be made on or about ___________, 2005 or such later date as we
may advise on not less than one day's notice to you, at the office of Xxxxxx, Xxxxx Xxxxx,
Inc., 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000 or at such other place as we shall specify
on not less than one day's notice to you. Payment for the Units is to be made, against
delivery, at the authorized public offering price stated above, or, if we shall so advise you,
at the authorized public offering price less the dealers' selling concession stated above, by
a certified or official bank check in New York Clearing House Funds payable to the order of
Xxxxxx, Xxxxx Xxxxx, Inc. or wire transfer pursuant to instructions provided by Xxxxxx, Xxxxx
Xxxxx, Inc.
ermination: This Agreement shall terminate at the close of business on the 45th day following the
effective date of the Registration Statement (of which the enclosed Prospectus forms a part),
unless extended at our discretion for a period or periods not to exceed in the aggregate 30
additional days. We may terminate this Agreement, whether or not extended, at any time without
notice.
* Plus the over-allotment option available to the Underwriters to purchase up to
an additional 1,500,000 Units.
2. Any of the Units purchased by you hereunder are to be offered by you to the
public at the public offering price, except as herein otherwise provided and
except that a reallowance from such public offering price not in excess of the
amount set forth on the first page of this Agreement may be allowed as
consideration for services rendered in distribution to dealers that (a) are
actually engaged in the investment banking or securities business; (b) execute
the written agreement prescribed by Rule 2740 of the NASD Conduct Rules; and (c)
are either members in good standing of the NASD or foreign banks, dealers or
institutions not eligible for membership in the NASD that represent to you that
they will promptly reoffer such Units at the public offering price and will
abide by the conditions with respect to foreign banks, dealers and institutions
set forth in paragraph 9 below.
3. You, by becoming a member of the Selected Dealers, agree (a) upon
effectiveness of the Registration Statement and your receipt of the Prospectus,
to take up and pay for the number of Units allotted and confirmed to you, (b)
not to use any of the Units to reduce or cover any short position you may have,
(c) upon our request, to advise us of the number of Units purchased from us as
manager of the Selected Dealers remaining unsold by you and to resell to us any
or all of such unsold Units at the public offering price stated above, less all
or such part of the concession allowed you as we may determine, and (d) to make
available a copy of the Prospectus to all persons who on your behalf will
solicit orders for the Units prior to the making of such solicitations by such
persons. You are not authorized to give any information or to make any
representations other than those contained in the Prospectus or any supplements
or amendments thereto.
4. As contemplated by Rule l5c2-8 under the Securities Exchange Act of 1934, as
amended, we agree to mail a copy of the Prospectus to any person making a
written request therefor during the period referred to in the rules and
regulations adopted under such Act, the mailing to be made to the address given
in the request. You confirm that you have delivered all preliminary prospectuses
and revised preliminary prospectuses, if any, required to be delivered under the
provisions of Rule 15c2-8 and agree to deliver all copies of the Prospectus
required to be delivered thereunder. We have heretofore delivered to you such
preliminary prospectuses as have been required by you, receipt of which is
hereby acknowledged, and will deliver such further prospectuses as may be
requested by you.
5. You agree that until termination of this Agreement you will not make
purchases or sales of the Units except (a) pursuant to this Agreement, (b)
pursuant to authorization received from us, or (c) in the ordinary course of
business as broker or agent for a customer pursuant to any unsolicited order.
6. Additional copies of the Prospectus and any supplements or amendments thereto
shall be supplied in reasonable quantity upon request.
7. The Units are offered by us for delivery when, as and if sold to, and
accepted by, us and subject to the terms herein and in the Prospectus or any
supplements or amendments thereto, to our right to vary the concessions and
terms of offering after their release for public sale, to approval of counsel as
to legal matters and to withdrawal, cancellation or modification of the offer
without notice.
8. Upon written application to us, you shall be informed as to the jurisdictions
under the securities or blue sky laws of which we believe the Units are eligible
for sale, but we assume no responsibility as to such eligibility or the right of
any member of the Selected Dealers to sell any of the Units in any jurisdiction.
We acknowledge that you have advised us that sales of the Company's securities
cannot be made from the state of New Jersey. We represent to you that all sales
by us of the Company's securities will be made by our offices outside the state
of New Jersey. We have caused to be filed a Further State Notice relating to
such of the Units to be offered to the public in New York in the form required
by, and pursuant to, the provisions of Article 23A of the General Business Law
of the State of New York. Upon the completion of the public offering
contemplated herein, each member of the Selected Dealers agrees to
2
promptly furnish to us, upon our request, territorial distribution reports
setting forth each jurisdiction in which sales of the Units were made by such
member, the number of Units sold in such jurisdiction, and any further
information as we may request, in order to permit us to file on a timely basis
any report that we as the Underwriters of the offering or manager of the
Selected Dealers may be required to file pursuant to the securities or blue sky
laws of any jurisdiction.
9. You, by becoming a member of the Selected Dealers, represent that you are
actually engaged in the investment banking or securities business and that you
are (a) a member in good standing of the NASD and will comply with NASD Conduct
Rules 2720 and 2740, or (b) a foreign dealer or institution that is not eligible
for membership in the NASD and that has agreed (i) not to sell Units within the
United States of America, its territories or possessions or to persons who are
citizens thereof or residents therein; (ii) that any and all sales shall be in
compliance with Rule 2110-01 of the NASD's Conduct Rules; (iii) to comply, as
though it were a member of the NASD, with Rules 2720, 2730, 2740 and 2750 of the
NASD's Conduct Rules, and to comply with Rule 2420 thereof as that Rule applies
to a non-member broker or dealer in a foreign country.
10. Nothing herein shall constitute any members of the Selected Dealers partners
with us or with each other, but you agree, notwithstanding any prior settlement
of accounts or termination of this Agreement, to bear your proper proportion of
any tax or other liability based upon the claim that the Selected Dealers
constitute a partnership, association, unincorporated business or other separate
entity and a like share of any expenses of resisting any such claim.
11. Xxxxxx, Xxxxx Xxxxx, Inc. shall be the Representative of the several
underwriters of the offering and manager of the Selected Dealers and shall have
full authority to take such action as we may deem advisable in respect of all
matters pertaining to the offering or the Selected Dealers or any members of
them. Except as expressly stated herein, or as may arise under the Act, we shall
be under no liability to any member of the Selected Dealers as such for, or in
respect of (i) the validity or value of the Units (ii) the form of, or the
statements contained in, the Prospectus, the Registration Statement of which the
Prospectus forms a part, any supplements or amendments to the Prospectus or such
Registration Statement, any preliminary prospectus, any instruments executed by,
or obtained or any supplemental sales data or other letters from, the Company,
or others, (iii) the form or validity of the Underwriting Agreement or this
Agreement, (iv) the eligibility of any of the Units for sale under the laws of
any jurisdiction, (v) the delivery of the Units, (vi) the performance by the
Company, or others of any agreement on its or their part, or (vii) any matter in
connection with any of the foregoing, except our own want of good faith.
12. If for federal income tax purposes the Selected Dealers, among themselves or
with the Underwriters, should be deemed to constitute a partnership, then you
elect to be excluded from the application of Subchapter K, Chapter 1, Subtitle A
of the Internal Revenue Code of 1986, as amended, and you agree not to take any
position inconsistent with such selection. You authorize us, in our discretion,
to execute and file on your behalf such evidence of such election as may be
required by the Internal Revenue Service.
13. All communications from you shall be addressed to Xxxxxx, Xxxxx Xxxxx, Inc.
at 000 Xxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxxxxx X. Xxxxx,
Senior Vice President. Any notice from us to you shall be deemed to have been
fully authorized by the Underwriters and to have been duly given if mailed,
telegraphed or sent by confirmed facsimile transmittal to you at the address to
which this letter is mailed. This Agreement shall be construed in accordance
with the laws of the State of Maryland without giving effect to conflict of
laws. Time is of the essence in this Agreement.
3
If you desire to become a member of the Selected Dealers, please advise us
to that effect immediately by facsimile transmission and sign and return to us
the enclosed counterpart of this letter.
Very truly yours,
XXXXXX, XXXXX XXXXX, INCORPORATED
By:
By:
--------------------------------------------
Name:
Title:
We accept membership in the Selected Dealers on the terms specified above.
Dated: , 2005
-----------------
(Selected Dealer)
By:
--------------------------------
Name:
Title:
4
