[_________] Shares
OMNICORDER TECHNOLOGIES, INC.
Common Stock
SELECTED DEALERS AGREEMENT
Garden City, New York
[________], 1998
Dear Sir or Madam:
SECTION 1. Purchase of Shares by Underwriter. We, the
Underwriter named in the enclosed Prospectus (the "Underwriter"), have agreed to
purchase from Omnicorder Technologies, Inc. (the "Company"), a Delaware
corporation, an aggregate of [_________] shares of the Common Stock, $0.01 par
value ("Common Stock"), of the Company an aggregate of [___________] shares of
Common Stock, and the Underwriter has been granted an option by the Company to
purchase all or part of an additional [________] shares of the Common Stock,
subject to the terms of an agreement (the "Underwriting Agreement") among the
Underwriter and the Company. Such [__________] shares and such aggregate of
[____________] shares of the Common Stock (collectively referred to as the
"Shares") are described in the Prospectus, additional copies of which will be
supplied in reasonable quantities upon request to us.
SECTION 2. Offering to Selected Dealers. (a) The Underwriter
is offering a portion of the Shares to certain dealers (the "Selected Dealers")
as principals, subject to the terms and conditions hereof and of the
Underwriting Agreement and to modification or cancellation of the offering
without notice, at the public offering price set forth on the cover page of the
Prospectus (the "Offering Price"), less a concession not exceeding [$_______]
per share for each Share (the "Selling Concession"). The Offering Price may be
changed at any time or from time to time in our discretion without notice to the
extent permitted by applicable laws, rules and regulations. Shares purchased by
the Underwriter and not sold to the Selected Dealers as aforesaid may be sold by
the Underwriter, who has agreed with respect to the sale of the Shares to be
bound by the terms and provisions of this Agreement. The Underwriter may be
included among the Selected Dealers.
(b) The offering of a portion of the Shares to Selected
Dealers may be made on the basis of reservations or allotments against
subscriptions. We are advising you by telegram of the method and terms of the
offering. Acceptance of any
reserved Shares received by us, at the offices of Cambridge Capital, LLC, 0000
Xxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department,
after the time specified therefor in the telegrams and any application for
additional shares will be subject to rejection in whole or in part. The offering
may be withdrawn by us at any time without notice and the right is reserved to
reject any subscription in whole or in part. Any offering or invitation to you
pursuant to the terms hereof is conditioned on your being qualified under
applicable securities laws, if any, to act as a dealer or broker in securities.
(c) Any Selected Dealer may buy Shares from or sell Shares to
any other Selected Dealer at the Offering Price, less all or any part of a
concession not exceeding the Reallowance (which term is hereinafter defined).
(d) The Selling Concession payable to you for the Shares
purchased and paid for by you may be held by us as a deposit for your account
and will be payable after the termination of this Agreement, except that we
shall have the right to cancel the Selling Concession in respect of any Shares
(including Shares which may have been issued on transfer of or in exchange for
such first mentioned Shares) delivered to you which we may purchase or contract
to purchase for our account at or below the Offering Price prior to the
termination of this Agreement, or which may be delivered against purchase
contracts made prior to termination of this Agreement at or below the Offering
Price, 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.
SECTION 3. Offering to Public by Selected Dealers. (a) Subject
to the terms hereof, you may reoffer the Shares purchased by you in conformity
with the terms of offering set forth in the Prospectus and at the Offering Price
immediately upon receipt of telegraphic release by us. Without our approval, the
Shares shall not be offered or sold by you below the Offering Price before the
termination of this Agreement, except that a concession not exceeding [$_______]
(the "Reallowance") for each Share may be allowed by you to dealers who are
members in good standing of the National Association of Securities Dealers, Inc.
(the "NASD") or to foreign dealers who are not eligible for membership in the
NASD and who have agreed not to sell the shares of Common Stock (i) to
purchasers in, or to persons who are nationals of the United States of America,
and (ii) except in compliance with the NASD Interpretation with respect to Free
Riding and Withholding of the NASD as to sales outside the United States.
(b) You agree to advise us from time to time upon request,
prior to the termination of this Agreement, of the amount of Shares purchased by
you hereunder remaining unsold, and to sell to us such amount of any unsold
Shares as we may designate, at the Offering Price, less an amount determined by
us not in excess of the Selling Concession.
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(c) Neither you nor any other person is, or has been,
authorized by the Company or us to give any information or to make any
representations in connection with the sale of the Shares other than those
contained in the Prospectus.
SECTION 4. Payment and Delivery. Payment for the Shares which
you shall have agreed to purchase shall be made by you on such date and at such
time as we may advise you, at the offices of Cambridge Capital, LLC, 0000
Xxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx Xxxx 00000, by immediately available funds to
our order, against delivery of such Shares. Delivery instructions must be in our
hands at said address at such time as we request. Additional Shares confirmed to
you shall be delivered on such date or dates as we shall advise you.
Notwithstanding the foregoing, payment for and delivery of Shares purchased by
you hereunder will be made through the facilities of The Depository Trust
Company, if you are a member, unless you have otherwise notified us prior to the
date specified in our telex or telegram to you, or, if you are not a member,
settlement may be through a correspondent who is a member pursuant to
instructions you may send to us prior to such specified date.
SECTION 5. Blue Sky Matters. We shall not have any obligation
or responsibility with respect to the right of any dealer to sell the Shares in
any jurisdiction, notwithstanding any information which may be furnished as to
the jurisdictions under the securities laws of which it is believed the Shares
may be sold.
SECTION 6. Termination. This Agreement shall terminate at the
close of business 30 days after the date hereof, but may be extended for a
period or periods not exceeding in the aggregate 30 days, as we may determine.
We may terminate this Agreement at any time without notice. Notwithstanding the
termination of this Agreement, you shall remain liable for your proportion of
any transfer tax or any liability which may be asserted or assessed against us
of Selected Dealers based upon the claim that the Selected Dealers or any of
them constitute a partnership, association, unincorporated business or other
separate entity.
SECTION 7. Stabilization. You represent that you have not
effected and will not effect any transaction in violation of the provisions of
the Securities Exchange Act of 1934, as amended (the "1934 Act"), applicable to
this offering, and you agree that you will not, until the completion of the
distribution by you of the Shares which you acquired pursuant to this Agreement,
bid for, purchase, sell or deal in, or attempt to induce others to purchase,
Shares, except (i) as provided for in this Agreement and the Underwriting
Agreement or as otherwise provided to us and (ii) in brokerage transactions not
involving solicitation of the customer's order.
SECTION 8. Obligations of Selected Dealers. (a) Your
acceptance hereof will constitute an obligation on your part to purchase, upon
the terms and conditions hereof, the number of Shares reserved for and accepted
by you (including
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any Shares subscribed for and allotted to you) and to perform and observe all of
the terms and conditions hereof.
(b) In acting as a Selected Dealer under this Agreement and in
offering and selling Shares hereunder, you agree to comply with all applicable
rules of the Securities Act of 1933, as amended (the "1933 Act"), the 1934 Act
and all applicable state securities laws. You represent that you are familiar
with Rule l5c2-8 under the 1934 Act relating to the distribution of preliminary
and final prospectuses and agree that you will comply therewith. In addition,
you are familiar with the requirements of the NASD Conduct Rules and agree to
comply with the requirements in such Rules as applicable to you.
(c) You are not authorized to act as agent for the Underwriter
in offering Shares to the public or otherwise. Nothing contained herein shall
constitute the Selected Dealers a partnership, association, unincorporated
business or other separate entity, or shall constitute the Selected Dealers, or
any of them, partners with us.
SECTION 9. Position of the Underwriter. We shall have full
authority to take such action as we may deem advisable in respect of all matters
pertaining to the offering or arising hereunder. We shall not be under any
liability to you, except for our own lack of good faith, obligations expressly
assumed in this Agreement and any liabilities arising under the 1933 Act. No
obligations not expressly assumed by us in this Agreement shall be implied
hereby or inferred herefrom.
SECTION 10. Notices. All communications from you shall be
addressed to Cambridge Capital, LLC, 0000 Xxxxxxxx Xxxxxx, Xxxxxx Xxxx, Xxx
Xxxx, 00000, Attention: Syndicate Department. Any notice from us to you shall be
deemed to have been duly given if mailed or telegraphed to you at the address at
which this letter is mailed.
SECTION 11. Reports. You agree to furnish us, for statistical
purposes and with the understanding that we will not make the same public, a
report, in such form as we may request, showing the number of Shares sold by you
in each jurisdiction and showing the distribution of the purchasers classified
by the number of Shares purchased, but no such report shall require you to
inform us of the names of any purchaser of any of the Shares from you.
SECTION 12. Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of New York.
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Please confirm this Agreement by signing and returning at once
the duplicate copy enclosed herewith.
Very truly yours,
CAMBRIDGE CAPITAL, LLC
By:
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Name:
Title:
Accepted and Agreed to:
By:
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Name:
Title:
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XXXXXXXXX CAPITAL, LLC
0000 Xxxxxxxx Xxxxxx
Xxxxxx Xxxx, Xxx Xxxx 00000
Dear Sir or Madam:
The undersigned hereby confirms its agreement to purchase
Shares referred to in the foregoing Selected Dealers Agreement, subject to your
acceptance or rejection in whole or in part in case of a subscription in excess
of any reservation, and acknowledges that such purchase and any purchase of
additional Shares made during the term of said Agreement are subject to all the
applicable terms and conditions set forth in said Agreement, and agrees to take
up and pay for such Shares at the price and upon the terms and conditions stated
in said Agreement.
The undersigned hereby confirms that (a) it is a member in
good standing of the National Association of Securities Dealers, Inc. (the
"NASD") and, in connection with the sale of such Shares, it agrees to comply
with Rule 2740 of the NASD Conduct Rules (formerly Section 24 of Article III of
the Rules of Fair Practice of the NASD) and to obtain a written agreement
similar to this clause (a) or to the succeeding clause (b) from any person to
whom it grants a selling concession, discount or other allowance, or (b) it is a
foreign bank, dealer or institution not eligible for such membership and agrees
(i) to conform to the NASD Conduct Rules (formerly the Rules of Fair Practice of
the NASD) in making sales to purchasers outside of the United States as though
it were a member of the NASD, including, without limitation, NASD's
Interpretation with Respect to Free-Riding and Withholding, the provisions of
Rules 2730, 2740 and 2750 of such Conduct Rules (formerly Sections 8, 24 and 36
of such Rules of Fair Practice) and Rule 2420 (formerly Section 25) of such
Conduct Rules as that Rule applies to a nonmember broker-dealer in a foreign
country and (ii) not to offer or sell any of such Shares in the United States or
to persons it has reason to believe are citizens or residents of the United
States.
The undersigned hereby acknowledges receipt of the Prospectus
relating to such Shares, and confirms that, in agreeing to purchase such Shares,
it has relied on said Prospectus and not on any other statement whatsoever,
written or oral.
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The undersigned further confirms that copies of the latest
preliminary prospectus with respect to such Shares have been mailed, at least
two days prior to the date hereof, to all persons to whom it is presently
expected it will sell such Shares and that, if it expects to mail a confirmation
of any such sale to any person by airmail, said preliminary prospectus has been
sent to such person by airmail.
Dated:_________________, 1998
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By:
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Name:
Title:
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