EXHIBIT 1.3
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Xxxxx & Xxxxx and Company, Inc.
Wall Xxxxxx Xxxxx
00 Xxxxxxxx Xxxxx
49th Floor
New York, New York 10005
AquaCell Technologies, Inc.
1,750,000 Shares of Common Stock
SELECTED DEALER AGREEMENT
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Dear Sirs: _________, 2000
We, as the Underwriter named in the Prospectus dated ___________, 2000 have
agreed, subject to the terms and conditions of the Underwriting Agreement dated
this date (the "Underwriting Agreement") to purchase from AquaCell Technologies,
Inc. (the "Company"), at the prices set forth on the cover of such Prospectus,
the above referred to 1,750,000 Shares of Common Stock and, at our option, up to
an additional 262,500 shares of Common Stock to cover over-allotments
(collectively being called the "Shares"). The Shares and certain of the terms
on which they are being purchased and offered are more fully described in the
enclosed Prospectus. Additional copies of the Prospectus will be supplied to
you in reasonable quantities upon request.
We, as the Underwriter, are offering to certain dealers ("Selected
Dealers"), among whom we are pleased to include you, part of the Shares, at the
public offering price less a concession of $.____ per Share of Common Stock.
The offering to Selected Dealers is made subject to the issuance and delivery of
the Shares to us and their acceptance by us, to the approval of legal matters by
our counsel, and to the terms and conditions hereof, and may be made by us on
the basis of the reservation of Shares or an allotment against subscription, or
otherwise in our discretion.
The initial public offering prices of the Shares are as set forth in the
Prospectus. With our consent, Selected Dealers may allow a re-allowance of not
in excess of $ -0- per Share of Common Stock in selling the Shares of Common
Stock to other dealers meeting the requirements of the specifications set forth
in the affirmation of dealers contained in the attached Acceptance and Order.
Upon our request, you will notify us of the identity of any dealer to whom you
allow such a reallowance and any Selected Dealer from whom you receive such a
re-allowance.
All orders will be strictly subject to confirmation and we reserve the
right in our uncontrolled discretion to reject any order in whole or in part, to
accept or reject orders
in the order of their receipt or otherwise, and to allot. You are not authorized
to give any information or make any representation other than as set forth in
the Prospectus in connection with the sale of any of the Shares. No dealer is
authorized to act as agent for the Underwriter, or for the Company, when
offering any of the Shares. Nothing contained herein shall constitute the
Selected Dealers partners with us or with one another.
Upon release by us, you may offer the Shares at the public offering price,
subject to the terms and conditions hereof. We may, and the Selected Dealers
may, with our consent, purchase Shares from and sell Shares to each other at the
public offering price less a concession not in excess of the concession to
Selected Dealers.
Payment for Shares purchased by you is to be made at our office (or at such
other place as instructed) at the public offering price, on such date as we may
advise, on one day's notice to you, by certified or official bank check in New
York Clearing House funds payable to our order. Delivery to you of certificates
for the Shares will be made as soon as is practicable thereafter. Unless
specifically authorized by us, payment by you may not be deferred until delivery
of certificates to you. The concession payable to you will be paid as soon as
practicable after the closing.
This Agreement shall terminate at the close of business on the 30th day
after the effective date of the Registration Statement. We may terminate this
Agreement at any time prior thereto by notice to you. Notwithstanding the
termination of this Agreement, you shall remain liable for your proportionate
share of any transfer tax or any liability which may be asserted or assessed
against us or Selected Dealers based upon the claim that the Underwriter and the
Selected Dealers, or any of them, constitute a partnership, association,
unincorporated business or other entity, including in each case your
proportionate share of expenses incurred in defending against any such claim or
liability.
In the event that, prior to the termination of this Agreement we purchase
in the open market or otherwise any Shares delivered to you, you agree to repay
to us for the account of the Underwriter the amount of the above concession to
Selected Dealers plus brokerage commissions and any transfer taxes paid in
connection with such purchase; which amounts can be withheld from the concession
otherwise payable to you hereunder. Certificates for Shares delivered on any
such purchase need not be the identical certificates originally issued to you.
At any time prior to the termination of this Agreement, you will, upon our
request, report to us the number of Shares purchased by you under this Agreement
which then remain unsold and will, upon our request, sell to us for the account
of the Underwriter the number of such unsold Shares that we may designate, at
the public offering price less an amount to be determined by us not in excess of
the concession allowed you.
We shall have full authority to take such action as we may deem advisable
in respect of all matters pertaining to the offering, including, without
limitation, stabilization and over-allotment. We shall be under no liability to
you except for our lack of good
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faith and for obligations assumed by us in this Agreement, except that you do
not waive any rights that you may have under the Securities Act of 1933 (the
"1933 Act") or the rules and regulations thereunder.
Upon application to us, we will inform you of the states and other
jurisdictions of the United States in which it is believed that the Shares are
qualified for sale under, or are exempt from the requirements of, their
respective securities laws, but we assume no responsibility with respect to your
right to sell Shares in any jurisdiction. We have filed a Further State Notice
with respect to the Shares with the Department of State of the State of New
York.
You confirm that you are familiar with Rule 15c2-8 under the Securities
Exchange Act of 1934 (the "1934 Act"), relating to the distribution of
preliminary and final prospectuses, and confirm that you have complied and will
comply therewith (whether or not the Company is subject to the reporting
requirements of Section 13 or 15(d) of the 1934 Act). We will make available to
you, to the extent made available to us by the Company such number of copies of
the Prospectus as you may reasonably request for purposes contemplated by the
1933 Act, the 1934 Act, and the rules and regulations thereunder.
Your attention is directed to Regulation M under the 1934 Act, which
contains certain prohibitions against trading by a person interested in a
distribution until such person has completed its participation in the
distribution. You confirm that you will at all times comply with the provisions
of such Regulation M in connection with this offering.
Any notice from us shall be deemed to have been duly given if telephoned,
and subsequently mailed or transmitted by any standard form of written tele-
communication to you at the address to which this Agreement is mailed, or if so
mailed or transmitted in the first instance.
Please advise us promptly by telephone or any standard form of written
telecommunication of the principal amount of Shares ordered by you and confirm
your agreement hereto by signing the Acceptance and Order on the enclosed
duplicate hereof and resuming promptly such signed duplicate copy to Xxxxx &
Xxxxx and Company, Inc., 00 Xxxxxxxx Xxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000.
Upon receipt thereof, this instrument and such signed duplicate copy will
evidence the agreement between us.
Very truly yours,
Xxxxx & Hatch and Company, Inc.
By:_________________________________
(authorized officer)
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ACCEPTANCE AND ORDER
Xxxxx & Xxxxx and Company, Inc.
00 Xxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
We hereby enter our order for ______ Shares of Common Stock of AquaCell
Technologies, Inc. under the terms and conditions of the foregoing Agreement.
We agree to all the terms and conditions stated in the foregoing Agreement.
We acknowledge receipt of the Prospectus relating to the above Shares and we
further state that in entering this order we have relied upon said Prospectus
and no other statements whatsoever, written or oral. We affirm that we are
either (i) a member in good standing of the National Association of Securities
Dealers, Inc. (the "NASD") or (ii) a dealer with its principal place of business
located outside the United States, its territories, or possessions and not
registered under the Securities Exchange Act of 1934 and not eligible for
membership in the NASD, who hereby agrees to make no sales within the United
States, its territories or its possessions or to persons who are nationals
thereof or residents therein, and in making any sales, to comply with the NASD's
interpretation with respect to free-riding and withholding, as well as all other
pertinent interpretations of the NASD that may be applicable to us. We also
affirm and agree that we will promptly re-offer any Shares purchased by us in
conformity with the terms of the offering and in conformity with Rules 2730,
2740, 2420 and 2750 of the NASD Conduct Rules and all applicable Rules and
Regulations promulgated under the Securities Exchange Act of 1934.
Date: ____________, 2000 _______________________________________________
(Name of Selected Dealer)
By:____________________________________________
(Authorized Signature)
Address:_______________________________________
_______________________________________________
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