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EXHIBIT 1.3
SELECTED DEALERS AGREEMENT
PUBLIC OFFERING OF
1,200,000 SHARES OF COMMON STOCK
1,200,000 REDEEMABLE WARRANTS
OFFERING PRICE OF $_________________ PER SHARE
AND $________ PER WARRANT
FACTUAL DATA CORP.
___________________________, 1998
Xxxxxxxxx Securities, Inc., on behalf of itself and other underwriters
(the "Underwriters") for which it is the representative (the "Representative"),
has severally agreed with Factual Data Corp., a Colorado corporation (the
"Company"), to purchase 1,200,000 shares (the "Firm Shares") of common stock
(the "Common Stock") and 1,200,000 redeemable warrants (the "Firm Warrants";
together with the Firms Shares, the "Firm Securities") of the Company, and the
Representative has been granted the right to purchase up to an additional
180,000 shares and/or warrants (the "Additional Securities") at its option for
the sole purpose of covering over-allotments in the sale of the Firm Shares
(the Firm Securities and Additional Securities being collectively referred to
as the "Securities" or a "Security"). The Underwriters are offering the
Securities to the public at a combined offering price of $ .
Certain other capitalized terms used herein are defined in the Underwriting
Agreement and are used herein as therein defined.
The Representative is offering the Securities to certain selected
dealers (the "Selected Dealers"), when, as and if accepted by the
Representative and subject to withdrawal, cancellation or modification of the
offer without notice and further subject to the terms of (i) the Company's
current Prospectus, (ii) the Underwriting Agreement, (iii) this Agreement, and
(iv) the Representative's instructions which may be forwarded to the Selected
Dealer from time to time. A copy of the Underwriting Agreement will be
delivered to you forthwith for inspection or copying or both, upon your request
therefor. This invitation is made by the Representative only if the Securities
may be offered lawfully to dealers in your state.
The further terms and conditions of this invitation are as follows:
1. Acceptance of Orders. Orders received by the Representative
from the Selected Dealer will be accepted only at the price, in the amounts and
on the terms which are set forth in the Company's current Prospectus, subject
to allotment in the Representative's uncontrolled discretion. The
Representative reserves the right to reject any orders, in whole or in part.
2. Selling Concession. As a Selected Dealer, you will be allowed
on all Securities purchased by you, which the Underwriters have not repurchased
or contracted to repurchase prior to termination of this Agreement at or below
the public offering price, a concession of ______% of the full 10% Underwriting
discount, i.e., $________ per Security as shown in the Company's current
Prospectus. No selling concession will be allowed to any domestic
broker-dealer who is not a member of the National Association of Securities
Dealers, Inc. (the "Association"), or to any foreign
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broker-dealer eligible for membership in the Association who is not a member of
the Association. Payment of such selling concession to you will be made only
as provided in Section 4 hereof. After the Securities are released for sale to
the public, the Representative is authorized to, and may, change the public
offering price and the selling concession.
3. Reoffer of Securities. Securities purchased by you are to be
bona fide reoffered by you in conformity with this Agreement and the terms of
offering set forth in the Prospectus. You agree that you will not bid for,
purchase, attempt to induce others to purchase, or sell, directly or
indirectly, any Securities except as contemplated by this Agreement and except
as a broker pursuant to unsolicited orders. You confirm that you have complied
and agree that you will at all times comply with the provisions of Regulation M
of the Securities Exchange Act of 1934, as amended (the "Exchange Act")
applicable to this offering. In respect of Securities sold by you and
thereafter purchased by the Representative at or below the public offering
price prior to the termination of this Agreement as described hereinafter (or
such longer period as may be necessary to cover any short position with respect
to the offering), you agree at the Representative's option either to repurchase
the Securities at a price equal to the cost thereof to the Representative,
including commissions and transfer taxes on redelivery, or to repay the
Representative such part of your Selected Dealers' concessions on such
Securities as the Representative designates.
4. Payment for Securities. Payment for the Securities purchased
by you is to be made at the net Selected Dealers' price of $______ per
Security, at the offices of Xxxxxxxxx Securities, Inc., Xxxxx 000, 0000 Xxxxxxx
Xxxxxx, Xxxxxx, Xxxxxxxx 00000, Attention: Syndicate Department, at such time
and on such date as the Representative may designate, by certified or official
bank check, payable in clearing house funds to the order of the Representative,
against delivery of certificates for the Securities so purchased. If such
payment is not made at such time and on such date, you agree to pay the
Representative interest on such funds at the current interest rates. The
Representative may in its discretion deliver the Securities purchased by you
through the facilities of the Depository Trust Company or, if you are not a
member, through your ordinary correspondent who is a member unless you promptly
give the Representative written instructions otherwise.
5. Offering Representations. The Representative has been
informed that a Registration Statement in respect of the Securities is expected
to become effective under the Securities Act of 1933, as amended (the "Act").
You are not authorized to give any information or to make any representations
other than those contained in the Prospectus or to act as agent for the Company
or for the undersigned when offering the Securities to the public or otherwise.
6. Blue Sky. Neither the Representative nor the Underwriters
assume any responsibility or obligations as to your right to sell the
Securities in any jurisdiction, notwithstanding any information furnished in
that connection. The Selected Dealer shall report in writing to the
Representative the number of Securities which have been sold by it in each
state and the number of transactions made in each such state. This state
report shall be submitted to the Representative as soon as possible after
completion of billing, but in any event not more than three days after the
closing.
7. Dealer Undertakings. By accepting this Agreement, the
Selected Dealer in offering and selling the Securities in the Public Offering
(i) acknowledges its understanding of (a) the Conduct Rules (the "Rules") of
the Association and the interpretations of such Rules promulgated by the Board
of Governors of the Association (the "Interpretations") including, but not
limited to the Rule and
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Interpretation with respect to "Free-Riding and Withholding" defined therein,
(b) Rule 174 of the rules and regulations promulgated under the Act, (c)
Regulation M promulgated under the Exchange Act, (d) Release No. 3907 under the
Act, (e) Release No. 4150 under the Act, and (f) Sections 2730, 2740, 2420 and
2750 of the Rules and Interpretations thereunder, and (ii) represents,
warrants, covenants and agrees that it shall comply with all applicable
requirements of the Act and the Exchange Act in addition to the specific
provisions cited in subparagraph (i) above and that it shall not violate,
directly or indirectly, any provision of applicable law in connection with its
participation in the Public Offering of the Securities.
8. Conditions of Public Offering. All sales shall be subject to
delivery by the Company of certificates evidencing the Securities against
payment therefore.
9. Failure of Order. If an order is rejected or if a payment is
received which proves insufficient or worthless, any compensation paid to the
Selected Dealer shall be returned by (i) restoration by the Representative to
the Selected Dealer of the latter's remittance or (ii) a charge against the
account of the Selected Dealer with the Representative, as the latter may elect
without notice being given of such election.
10. Additional Representations, Covenants and Warranties of
Selected Dealer. By accepting this Agreement, the Selected Dealer represents
that it is registered as a broker-dealer under the Exchange Act; is qualified
to act as a dealer in the states or the jurisdictions in which it shall offer
the Securities; is a member in good standing of the Association; and shall
maintain such registrations, qualifications and membership in full force and
effect and in good standing throughout the term of this Agreement. If the
Selected Dealer is not a member of the Association, it represents that it is a
foreign dealer not registered under the Exchange Act and agrees to make no
sales within the United States, its territories or its possessions or to
persons who are citizens thereof or residents therein, and in making any sales
to comply with the Association's Rules and Interpretations with respect to
Free-Riding and Withholding. Further, the Selected Dealer agrees to comply
with all applicable federal laws including, but not limited to, the Act and
Exchange Act and the rules and regulations of the Commission thereunder; the
laws of the states or other jurisdictions in which Securities may be offered or
sold by it; and the Constitution, Bylaws, and rules of the Association.
Further, the Selected Dealer agrees that it will not offer or sell the
Securities in any state or jurisdiction except those in which the Securities
have been qualified or qualification is not required. The Selected Dealer
acknowledges its understanding that it shall not be entitled to any
compensation hereunder for any period during which it has been suspended or
expelled from membership in the Association.
11. Employees and other Agents of the Selected Dealer. By
accepting this Agreement, the Selected Dealer assumes full responsibility for
thorough and proper training of its employees and other agents and
representatives concerning the selling methods to be used in connection with
the Public Offering of the Securities, giving special emphasis to the
principles of full and fair disclosure to prospective investors and the
prohibitions against "Free-Riding and Withholding" as set forth in Section 2110
of the Rules and the Interpretations thereunder.
12. Indemnification by the Company. The Company has agreed in
Section 8 of the Underwriting Agreement to indemnify and hold harmless the
Underwriters, the Representative and each person if any, who controls the
Representative or any one of the Underwriters within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act against any and all loss,
liability, claim, damage, and expense whatsoever (which shall include, for all
purposes of Section
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8 of the Underwriting Agreement, but not be limited to, attorneys' fees and any
and all expense whatsoever incurred in investigating, preparing, or defending
against any litigation, commenced or threatened, or any claim whatsoever and
any and all amounts paid in settlement of any claim or litigation) as and when
incurred arising out of, based upon, or in connection with (i) any untrue
statement or alleged untrue statement of a material fact contained (A) in any
Preliminary Prospectus, the Registration Statement, or the Prospectus (as from
time to time amended and supplemented), or any amendment or supplement thereto,
or (B) in any application or other document or communication (in the
Underwriting Agreement collectively called an "application") in any
jurisdiction in order to qualify the Securities under the "blue sky" or
securities laws thereof or filed with the Commission or any securities
exchange; or any omission or alleged omission to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, or (ii) any breach of any representation, warranty, covenant, or
agreement of the Company contained in the Underwriting Agreement. The
Representative has agreed to give the Company an opportunity and the right to
participate in the defense or preparation of the defense of any action brought
against the Representative, any Underwriter or any controlling person thereof
to enforce any such loss, claim, demand, liability or expense. The agreement
of the Company under this indemnity is conditioned upon notice of any such
action having been promptly given by the indemnified party to the Company.
Failure to notify the Company as provided in the Underwriting Agreement shall
not relieve the Company of its liability which it may have to the
Representative, the Underwriters, or any controlling person thereof other than
pursuant to Section 8(a) of the Underwriting Agreement. This agreement is
subject in all respects, especially insofar as the foregoing description of the
indemnification provisions set forth in the Underwriting Agreement is
concerned, to the terms and provisions of the Underwriting Agreement, a copy of
which will be made available for inspection or copying or both to the Selected
Dealer upon written request to the Representative therefor. The Selected
Dealer acknowledges and confirms that, by signing a counterpart of this
Agreement, it shall be deemed an agent of the Underwriters or a
"Representative" for all purposes of Section 8 of the Underwriting Agreement,
as expressly set forth therein.
13. Indemnification by the Selected Dealer. The Selected Dealer
shall indemnify and hold harmless the Company, each director of the Company,
each officer of the Company who shall have signed the Registration Statement,
each other person, if any, who controls the Company within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act, to the same extent
as the indemnity from the Company to the Underwriters in Section 8(a) of the
Underwriting Agreement, but only with respect to statements or omissions, if
any, made in any Preliminary Prospectus, the Registration Statement, or the
Prospectus (as from time to time amended and supplemented), or any amendment or
supplement thereto, or in any application, in reliance upon and in conformity
with information furnished to the Representative or the Company with respect to
the Selected Dealer by or on behalf of the Selected Dealer expressly for
inclusion in any Preliminary Prospectus, the Registration Statement, or the
Prospectus, or any amendment or supplement thereto, or in any application, as
the case may be, or are based upon alleged misrepresentations or omissions to
state material facts in connection with statements made by the Selected Dealer
or the Selected Dealer's employees or other agents to the Company or the
Representative orally or by any other means; provided, however, that the
obligation of the Selected Dealer to provide indemnity hereunder shall be
limited to the amount which represents the product of the number of Firm
Securities and Additional Securities sold and the initial public offering price
per Security set forth on the cover page of the Prospectus. If any action
shall be brought against the Company or any other person so indemnified in
respect of which indemnity may be sought against the Selected Dealer pursuant
to this provision, the Selected Dealer shall have the rights and duties given
to the Company in the
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Underwriting Agreement, and the Company and each other person so indemnified
shall have the rights and duties given to the indemnified parties, by the
provisions of Section 8(a) of the Underwriting Agreement; and the Selected
Dealer shall reimburse the Company and the Representative for any legal or
other expenses reasonably incurred by them in connection with the investigation
of or the defense of any such action or claim. The Representative shall, after
receiving the first summons or other legal process disclosing the nature of the
action being brought against it or the Company in any proceeding with respect
to which indemnity may be sought by the Company or the Representative
hereunder, notify promptly the Selected Dealer in writing of the commencement
thereof; and the Selected Dealer shall be entitled to participate in (and, to
the extent the Selected Dealer shall wish, to direct) the defense thereof at
the expense of the Selected Dealer, but such defense shall be conducted by
counsel satisfactory to the Company and the Representative. If the Selected
Dealer shall fail to provide such defense, the Company or the Representative
may defend such action at the cost and expense of the Selected Dealer. The
Selected Dealer's obligation under this Section 13 shall survive any
termination of this Agreement, the Underwriting Agreement and the delivery of
and payment for the Securities under the Underwriting Agreement, and shall
remain in full force and effect regardless of the investigation made by or on
behalf of any Representative within the meaning of Section 15 of the Act.
14. No Authority to Act as Partner or Agent. Nothing herein shall
constitute the Selected Dealers as an association or other separate entity or
partners with or agents of the Representative or with each other, but each
Selected Dealer shall be responsible for its pro rata share of any liability or
expense based upon any claims to the contrary. The Representative shall not be
under any liability for or in respect of the value, validity or form of the
Securities, or the delivery of certificates for the Securities or the
performance by any person 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 matter in connection with this Agreement, except for lack of
good faith and for obligations expressly assumed by the Representative in this
Agreement.
15. Expenses. No expenses incurred in connection with offers and
sales of the Securities under the Public Offering will be chargeable to the
Selected Dealers. A single transfer tax, if any, on the sale of Securities by
the Selected Dealer to its customers will be paid when such Securities are
delivered to the Selected Dealer for delivery to its customers.
Notwithstanding the foregoing, the Selected Dealer shall pay its proportionate
share of any transfer tax or any other tax (other than the single transfer tax
described above) if any such tax shall at any time be assessed against the
Representative and other Selected Dealers.
16. Notices. All notices, demands or requests required or
authorized hereunder shall be deemed given sufficiently if in writing and sent
by registered or certified mail, return receipt requested and postage prepaid,
or by tested telex, telegram, cable or facsimile to, in the case of the
Representative, the address set forth above directed to the attention of the
President of the Representative, and in the case of the Selected Dealer, to the
address provided below by the Selected Dealer, directed to the attention of the
President.
17. Termination. This Agreement may be terminated by the
Representative with or without cause upon written notice to Selected Dealer to
such effect; and such notice having been given, this Agreement shall terminate
at the time specified therein. Additionally, this Agreement shall terminate
upon the earlier of the termination of the Underwriting Agreement, or at the
close of business thirty days after the Securities are released by the
Representative for sale to the public.
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18. General Provisions. This Agreement shall be construed and
enforced in accordance with and governed by the laws of the State of Colorado.
This Agreement embodies the entire agreement and understanding between the
Representative and the Selected Dealer and supersedes all prior agreements and
understandings related to the subject matter hereof, and this Agreement may not
be modified or amended or any term or provision hereof waived or discharged
except in writing signed by the party against whom such amendment,
modification, waiver or discharge is sought to be enforced. All the terms of
this Agreement, whether so expressed or not, shall be binding upon, and shall
inure to the benefit of, the respective successors, legal representatives and
assigns of the parties hereto; provided, however, that none of the parties
hereto can assign this Agreement or any of its rights hereunder without the
prior written consent of the other party hereto, and any such attempted
assignment or transfer without the other party's prior written consent shall be
void and without force or effect. The headings of this Agreement are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument.
If the foregoing correctly sets forth the terms and conditions of your
agreement to purchase the Securities allotted to you, please indicate your
acceptance thereof by signing and returning to Xxxxxxxxx Securities, Inc. the
duplicate copy of this Agreement, whereupon this letter and your acceptance
shall become and evidence a binding contract between you and the
Representative.
XXXXXXXXX SECURITIES, INC.
By:
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Title:
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Gentlemen:
The undersigned confirms its agreement to purchase ____________ shares
of Common Stock and Redeemable Warrants of Factual Data Corp., upon the terms
and subject to the conditions of the foregoing Selected Dealers Agreement, and
further agrees that any agreement by it to purchase additional Securities
during the life of such Agreement will be upon the same terms and subject to
the same conditions. The undersigned acknowledges receipt of the Prospectus
relating to the public offering of the Securities and confirms that in agreeing
to purchase such Securities it has relied on such Prospectus and not on any
other statement whatsoever written or oral.
Firm Name:
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(Print or Type name of Firm)
By:
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(Authorized Agent)
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(Print or Type Name and Title of
Authorized Agent)
Address:
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Telephone No.
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IRS Employer Identification No.:
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Dated: , 1998
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