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EXHIBIT 1.2
DIDAX INC.
2,000,000 Shares of Common Stock and
2,000,000 Common Stock Purchase Warrants
SELECTED DEALER AGREEMENT
Boca Raton, Florida
, 1997
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Gentlemen:
1. Xxxxxx Xxxxx Securities, Inc. (the "Representative")
and the other Underwriters named in the Prospectus (collectively the
"Underwriters"), acting through us as the Representative, are severally
offering for sale an aggregate of 2,000,000 Shares of Common Stock (the
"Shares") and 2,000,000 Warrants (the "Warrants") (collectively the "Firm
Securities") of DIDAX INC (the "Company"), which we have agreed to purchase
from the Company, and which are more particularly described in the Registration
Statement, Underwriting Agreement and Prospectus. In addition, the several
Underwriters have been granted an option to purchase from the Company up to an
additional 300,000 Shares and an additional 300,000 Warrants (the "Option
Securities") to cover overallotments in connection with the sale of the Firm
Securities. The Firm Securities and any Option Securities purchased are herein
called the "Securities". The Securities and the terms under which they are to
be offered for sale by the several Underwriters are more particularly described
in the Prospectus.
2. The Securities are to be offered to the public by the
several Underwriters at the price per Share and price per Warrant set forth on
the cover page of the Prospectus (the "Public Offering Price"), in accordance
with the terms of offering set forth in the Prospectus.
3. Some or all of the several Underwriters are severally
offering, subject to the terms and conditions hereof, a portion of the
Securities for sale to certain dealers who are actually engaged in the
investment banking or securities business and who are either (a) members in
good standing of the National Association of Securities Dealers, Inc. (the
"NASD"), or (b) dealers with their principal places of business located outside
the United States, its territories and its possessions and not registered as
brokers or dealers under the Securities Exchange Act of 1934, as amended (the
"1934 Act"), who have agreed not to
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make any sales within the United States, its territories or its possessions or
to persons who are nationals thereof or residents therein (such dealers who
shall agree to sell Securities hereunder being herein called "Selected
Dealers") at the public offering price, less a selling concession (which may be
changed) of not in excess of $______ per Share and/or $_________ per Warrant
payable as hereinafter provided, out of which concession an amount not
exceeding $__________ per Share and/or $_________ per Warrant may be reallowed
by Selected Dealers to members of the NASD or foreign dealers qualified as
aforesaid. The Selected Dealers who are members of the NASD agree to comply
with all of the provisions of the NASD Conduct Rules. Foreign Selected Dealers
agree to comply with the provisions of Rule 2740 of the NASD Conduct Rules,
and, if any such dealer is a foreign dealer and not a member of the NASD, such
Selected Dealer also agrees to comply with the NASD's Interpretation with
Respect to Free-Riding and Withholding, and to comply, as though it were a
member of the NASD, with the provisions of Rules 2730 and 2750 of the NASD
Conduct Rules, and to comply with Rule 2420 of the NASD Conduct Rules as that
Rule applies to non-member foreign dealers. Some or all of the Underwriters may
be included among the Selected Dealers. Each of the Underwriters has agreed
that, during the term of this Agreement, it will be governed by the terms and
conditions hereof whether or not such Underwriter is included among the
Selected Dealers.
4. Xxxxxx Xxxxx Securities, Inc. shall act as
Representative on behalf of the Underwriters and shall have full authority to
take such action as we may deem advisable in respect to all matters pertaining
to the public offering of the Securities.
5. If you desire to act as a Selected Dealer, and
purchase any of the Securities, your application should reach us promptly by
facsimile or telegraph at the offices of Xxxxxx Xxxxx Securities, Inc., 0000
Xxxx Xxxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx 00000, Attention: Xxxxxx X. Xxxx. We
reserve the right to reject subscriptions in whole or in part, to make
allotments, and to close the subscription books at any time without notice.
The Securities allotted to you will be confirmed, subject to the terms and
conditions of this Agreement.
6. The privilege of subscribing for the Securities is
extended to you only on behalf of such of the Underwriters, if any, as may
lawfully sell the Securities to Selected Dealers in your state or other
applicable jurisdiction.
7. Any Securities to be purchased by you under the terms
of this Agreement may be immediately reoffered to the public in accordance with
the terms of offering as set forth herein and in
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the Prospectus, subject to the securities or Blue Sky laws of the various
states or other jurisdictions.
You agree to pay us on demand for the accounts of the several
Underwriters an amount equal to the Selected Dealer concession as to any
Securities purchased by you hereunder which, prior to the completion of the
public offering as defined in paragraph 8 below, we may purchase or contract to
purchase for the account of any Underwriter 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. Certificates for Securities delivered on
such repurchases need not be the identical certificates originally purchased.
You agree to advise us from time to time, upon request, of the
number of Securities purchased by you hereunder and remaining unsold at the
time of such request, and, if in our opinion any such Securities shall be
needed to make delivery of the Securities sold or overallotted for the account
of one or more of the Underwriters, you will, forthwith upon our request, grant
to us for the account or accounts of such Underwriter or Underwriters the
right, exercisable promptly after receipt of notice from you that such right
has been granted, to purchase, at the Public Offering Price less the selling
concession or such part thereof as we shall determine, such number of
Securities owned by you as shall have been specified in our request.
No expenses shall be charged to Selected Dealers. A single
transfer tax, if payable, upon the sale of the Securities by the respective
Underwriters to you will be paid when such Securities are delivered to you.
However, you shall pay any transfer tax on sales of Securities by you and you
shall pay your proportionate share of any transfer tax (other than the single
transfer tax described above) in the event that any such tax shall from time to
time be assessed against you and other Selected Dealers as a group or
otherwise.
Neither you nor any other person is or has been authorized to
give any information or to make any representation in connection with the sale
of the Securities other than as contained in the Prospectus.
8. The first three paragraphs of Section 7 hereof will
terminate when we shall have determined that the public offering of the
Securities has been completed and upon telefax notice to you of such
termination, but, if not theretofore terminated, they will terminate at the
close of business on the 30th full business day after the date hereof;
provided, however, that we shall have the right to extend such provisions for a
further period or
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periods, not exceeding an additional 30 days in the aggregate upon facsimile
notice to you.
9. For the purpose of stabilizing the market in the
Securities, we have been authorized to make purchases and sales of the
Securities of the Company, in the open market or otherwise, for long or short
account, and, in arranging for sales, to overallot.
10. On becoming a Selected Dealer, and in offering and
selling the Securities, you agree to comply with all the applicable
requirements of the Securities Act of 1933, as amended (the "1933 Act"), and
the 1934 Act. You confirm that you are familiar with Rule 15c2-8 under the
1934 Act relating to the distribution of preliminary and final prospectuses for
securities of an issuer (whether or not the issuer is subject to the reporting
requirements of Section 13 or 15(d) of the 0000 Xxx) and confirm that you have
complied and will comply therewith.
We hereby confirm that we will make available to you such
number of copies of the Prospectus (as amended or supplemented) as you may
reasonably request for the purposes contemplated by the 1933 Act or the 1934
Act, or the rules and regulations thereunder.
11. Upon request, you will be informed as to the states
and other jurisdictions in which we have been advised that the Securities are
qualified for sale under the respective securities or Blue Sky laws of such
states and other jurisdictions, but neither we nor any of the Underwriters
assume any obligation or responsibility as to the right of any Selected Dealer
to sell the Securities in any state or other jurisdiction or as to the
eligibility of the Securities for sale therein. We will, if requested, file a
Further State Notice in respect of the Securities pursuant to Article 23-A of
the General Business Law of the State of New York.
12. No Selected Dealer is authorized to act as our agent
or as agent for the Underwriters, or otherwise to act on our behalf or on
behalf of the Underwriters, in offering or selling the Securities to the public
or otherwise or to furnish any information or make any representation except as
contained in the Prospectus.
13. Nothing will constitute the Selected Dealers an
association or other separate entity or partners with the Underwriters, or with
each other, but you will be responsible for your share of any liability or
expense based on any claim to the contrary. We and the several Underwriters
shall not be under any liability for or in respect of value, validity or form
of the
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Securities, or the delivery of the certificates for the Securities, or the
performance by anyone of any agreement on its part, or the qualification of the
Securities for sale under the laws of any jurisdiction, or for or in respect of
any other matter relating to this Agreement, except for lack of good faith and
for obligations expressly assumed by us or by the Underwriters in this
Agreement and no obligation on our part shall be implied herefrom. The
foregoing provisions shall not be deemed a waiver of any liability imposed
under the 1933 Act.
14. Payment for the Securities sold to you hereunder is
to be made at the Public Offering Price less the above-mentioned selling
concession on such time and date as we may advise, at the office of Xxxxxx
Xxxxx Securities, Inc., 0000 Xxxx Xxxxxx Xxxx, Xxxx Xxxxx, Xxxxxxx 00000,
Attention: Xxxxxx X. Xxxx, by wire transfer to the account of the
Representative or by a certified or official bank check in current New York
Clearing House funds, payable to the order of Xxxxxx Xxxxx Securities, Inc., as
Representative, against delivery of certificates for the Securities so
purchased. If such payment is not made at such time, you agree to pay us
interest on such funds at the prevailing broker's loan rate.
15. Notices to us should be addressed to us at the
offices of Xxxxxx Xxxxx Securities, Inc., 0000 Xxxx Xxxxxx Xxxx, Xxxx Xxxxx,
Xxxxxxx 00000, Attention: Xxxxxx X. Xxxx. Notices to you shall be deemed to
have been duly given if telephoned, telefaxed, telegraphed or mailed to you at
the address to which this letter is addressed.
16. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida without giving effect to the
choice of law or conflicts of law principles thereof.
17. If you desire to purchase any Securities and act as a
Selected Dealer, please confirm your application by signing and returning to us
your confirmation on the duplicate copy of this letter enclosed herewith, even
though you may have previously advised us thereof by telephone or telegraph.
Our signature hereon may be by facsimile.
Very truly yours,
XXXXXX XXXXX SECURITIES, INC.
As Representative of the Several
Underwriters
BY:
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Authorized Officer
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Xxxxxx X. Xxxx, President
Xxxxxx Xxxxx Securities, Inc.
0000 Xxxx Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
We hereby subscribe for __________ Shares and/or ___________
Warrants of DIDAX INC. in accordance with the terms and conditions stated in
the foregoing Selected Dealers Agreement and letter. We hereby acknowledge
receipt of the Prospectus referred to in the Selected Dealers Agreement and
letter. We further state that in purchasing said Shares and/or Warrants we
have relied upon said Prospectus and upon no other statement whatsoever,
whether written or oral. We confirm that we are a dealer actually engaged in
the investment banking or securities business and that we are either (i) a
member in good standing of the National Association of Securities Dealers, Inc.
("NASD"); or (ii) a dealer with its principal place of business located outside
the United States, its territories and its possessions and not registered as a
broker or dealer under the Securities
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Exchange Act of 1934, as amended, who hereby agrees not to make any sales
within the United States, its territories or its possessions or to persons who
are nationals thereof or residents therein. As a member of the NASD, we hereby
agree to comply with all of the provisions of NASD Conduct Rules. If we are a
foreign Selected Dealer, we agree to comply with the provisions of Rule 2740 of
the NASD Conduct Rules, and if we are a foreign dealer and not a member of the
NASD, we agree to comply with the NASD's interpretation with respect to
free-riding and withholding, and agree to comply, as though we were a member of
the NASD, with provisions of Rules 2730 and 2750 of the NASD Conduct Rules, and
to comply with Rule 2420 of the NASD Conduct Rules as that Rule applies to
non-member foreign dealers.
Firm:
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By:
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(Name and Position)
Address:
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Telephone No.:
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Dated: , 1997
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