Exhibit 1
Selected Dealers Agreement
Dear Ladies and Gentlemen:
Section 1. Introduction.
The Xxxxxxx Group Career Satisfaction Corporation ("Company"), a Utah
corporation, proposes to issue and sell 2,500,000 of its class A common voting
shares, and certain stockholders of the Company (collectively referred to as the
"Selling Stockholders") propose to sell 181,500 shares of the Company's issued
and outstanding Common Stock, to the general public at the price of $5 per share
through selected dealers named in Schedule A (the "Dealers"), who are acting
severally and not jointly.
Collectively, such total of 2,681,500 shares of Common Stock proposed to be sold
by the Company and the Selling Stockholders is hereinafter referred to as the
"Shares." The Company and each of the Selling Stockholders hereby confirm their
agreements with the Dealers as follows:
Section 2. Representations and Warranties of the Company.
The Company represents and warrants to the several Dealers that:
(a) A registration statement on Form SB-2 (File No. 333-65319) has been
prepared and filed with the Securities and Exchange Commission
("Commission") by the Company in conformity with the requirements of
the Securities Act of 1933, as amended, and the rules and regulations
of the Commission thereunder (collectively, the "1933 Act;" unless
indicated to the contrary, all references herein to specific rules are
rules promulgated under the 0000 Xxx); and the Company has so prepared
and has filed such amendments thereto, if any, and such amended
preliminary prospectuses as may have been required to the date hereof
and will file such additional amendments thereto and such amended
prospectuses as may hereafter be required. There has been or will
promptly be delivered to you a signed copy of such registration
statement and amendments, complete with exhibits.
(b) The Commission has not issued any order preventing or suspending the
use of any preliminary prospectus, and each preliminary prospectus has
conformed in all material respects with the requirements of the 1933
Act and, as of its date, has not included any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein not misleading; and when the Registration Statement
became or becomes effective, and at all times subsequent thereto.
(c) The Company has been duly incorporated and are validly existing as
corporations in good standing, with corporate power and authority to
own their properties and conduct its business as described in the
Prospectus; the Company is duly qualified to do business as a foreign
corporation under the corporation law of, and are in good standing as
such in, each jurisdiction in which it owns or leases substantial
properties, has an office, or in which substantial business is
conducted and such qualification is required.
107
(d) The issued and outstanding shares of capital stock of the Company as
set forth in the Prospectus have been duly authorized and validly
issued, are fully paid and nonassessable, and conform to the
description thereof contained in the Prospectus.
(e) The making and performance by the Company of this Agreement have been
duly authorized by all necessary corporate action and will not violate
any provision of the Company's charter or bylaws and will not result in
the breach, or be in contravention, of any provision of any agreement,
franchise, license, indenture, mortgage, deed of trust, or other
instrument to which the Company is a party or by which the Company may
be bound or affected, or any order, rule or regulation applicable to
the Company of any court or regulatory body, administrative agency or
other governmental body having jurisdiction over the Company or any of
its properties, or any order of any court or governmental agency or
authority entered in any proceeding to which the Company was or is now
a party or by which it is bound. No consent, approval, authorization or
other order of any court, regulatory body, administrative agency or
other governmental body is required for the execution and delivery of
this Agreement or the consummation of the transactions contemplated
herein or therein, except for compliance with the 1933 Act and blue sky
laws applicable to the public offering of the Shares by the several
Dealers and clearance of such offering with the National Association of
Securities Dealers, Inc. ("NASD"). This Agreement has been duly
executed and delivered by the Company.
(f) The accountants who have expressed their opinions with respect to
certain of the financial statements and schedules included in the
Registration Statement are independent accountants as required by the
1933 Act.
(g) The consolidated financial statements and schedules of the Company
included in the Registration Statement present fairly the consolidated
financial position of the Company as of the respective dates of such
financial statements, and the consolidated results of operations and
cash flows of the Company for the respective periods covered thereby,
all in conformity with generally accepted accounting principles
consistently applied throughout the periods involved, except as
disclosed in the Prospectus and the supporting schedules included in
the Registration Statement present fairly the information required to
be stated therein.
(h) The Company is not in violation of its charter or in default under any
consent decree, or in default with respect to any material provision of
any lease, loan agreement, franchise, license, permit or other contract
obligation to which it is a party; and there does not exist any state
of facts which constitutes an event of default as defined in such
documents or which, with notice or lapse of time or both, would
constitute such an event of default, in each case, except for defaults
which immaterial.
(i) There are no material legal or governmental proceedings pending, or to
the Company's knowledge, threatened to which the Company is or may be a
party or of which material property owned or leased by the Company or
any subsidiary is or may be the subject, or related to environmental or
discrimination matters which are not disclosed in the Prospectus, or
which question the validity of this Agreement or any action taken or to
be taken pursuant hereto or thereto.
(j) The Company and each of its subsidiaries have good and marketable title
to all the properties and assets reflected as owned in the financial
statements hereinabove described (or elsewhere in the Prospectus),
subject to no lien, mortgage, pledge, charge or encumbrance of any kind
except those, if any, reflected in such financial statements (or
elsewhere in the Prospectus) or which are not material to the Company.
The Company holds its leased properties which are material to the
Company under valid and binding leases.
(k) The Company has not taken and will not take, directly or indirectly,
any action designed to or which has constituted or which might
108
reasonably be expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the Shares.
(l) Subsequent to the respective dates as of which information is given in
the Registration Statement and Prospectus, and except as contemplated
by the Prospectus, the Company has not incurred any material
liabilities or obligations, direct or contingent, nor entered into any
material transactions not in the ordinary course of business and there
has not been any material adverse change in its condition (financial or
otherwise) or results of operations nor any material change in its
capital stock, short-term debt or long-term debt.
(m) There is no material document of a character required to be described
in the Registration Statement or the Prospectus or to be filed as an
exhibit to the Registration Statement which is not described or filed
as required.
(n) The Company owns and possesses all right, title and interest in and to,
or has duly licensed from third parties, all patents, patent rights,
trade secrets, inventions, know-how, trademarks, trade names,
copyrights, service marks and other proprietary rights ("Trade Rights")
material to the business of the Company. The Company has not received
any notice of infringement, misappropriation or conflict from any third
party as to such material Trade Rights which has not been resolved or
disposed of, and the Company has not infringed, misappropriated or
otherwise conflicted with material Trade Rights of any third parties,
which infringement, misappropriation or conflict would have a material
adverse effect upon the condition (financial or otherwise) or results
of operations of the Company.
(o) The conduct of the business of the Company is in compliance in all
respects with applicable federal, state, local and foreign laws and
regulations, except where the failure to be in compliance would not
have a material adverse effect upon the condition (financial or
otherwise) or results of operations of the Company.
(p) All offers and sales of the Company's capital stock prior to the date
hereof were at all relevant times exempt from the registration
requirements of the 1933 Act and were duly registered with or the
subject of an available exemption from the registration requirements of
the applicable state securities or blue sky laws.
(q) The Company has filed all necessary federal and state income and
franchise tax returns and has paid all taxes shown as due thereon, and
there is no tax deficiency that has been, or to the knowledge of the
Company might be, asserted against the Company or any of its properties
or assets that would or could be expected to have a material adverse
affect upon the condition (financial or otherwise) or results of
operations of the Company.
(r) Upon successful completion of this offering, the Company will file an
application to list the Shares on the Nasdaq SmallCap Market. If we
fail to meet these standards, we plan to apply for a listing of our
shares on the NASD OTC Bulletin Board. The Company has received
notification that Nasdaq has reserved for the Company the ticker symbol
"JOBS."
Section 3. Representations, Warranties and Covenants of the Selling Stockholders
Each Selling Stockholder severally represents and warrants to, and agrees with,
the Company and the Dealers that:
(a) Such Selling Stockholder has and will have, valid marketable title to
the Shares proposed to be sold by such Selling Stockholder hereunder on
such date and full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver such Shares
hereunder, free and clear of all voting trust arrangements, liens,
encumbrances, equities, claims and community property rights; and upon
delivery of and payment for such Shares hereunder, the Dealers will
109
acquire valid marketable title thereto, free and clear of all voting
trust arrangements, liens, encumbrances, equities, claims and community
property rights.
(b) Such Selling Stockholder has not taken and will not take, directly or
indirectly, any action designed to or which might be reasonably
expected to cause or result, under the Exchange Act or otherwise, in
stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Shares.
(c) Each preliminary prospectus, insofar as it has related to such Selling
Stockholder and, to the knowledge of such Selling Stockholder in all
other respects, as of its date, has conformed in all material respects
with the requirements of the 1933 Act and, as of its date, has not
included any untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein not misleading.
Section 4. Purchase, Sale and Delivery of Shares
On the basis of the representations, warranties and agreements herein contained,
but subject to the terms and conditions herein set forth, the Company and the
Selling Stockholders, severally and not jointly, agree to sell to the Dealers
named in Schedule A hereto, and the Dealers agree, severally and not jointly, to
devote their "best efforts" to sell Shares on the terms set forth in the
prospectus, receiving as compensation therefore 10% of the price of the Shares
sold by each such Dealer.
Section 5. Expenses
Each party shall pay all expenses of performing the duties allocated to it under
this Agreement.
Section 6. Covenants of the Company
The Company covenants and agrees that:
(a) The Company will advise you and the Selling Stockholders promptly of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of the institution of
any proceedings for that purpose, or of any notification of the
suspension of qualification of the Shares for sale in any jurisdiction
or the initiation or threatening of any proceedings for that purpose,
and will also advise you and the Selling Stockholders promptly of any
request of the Commission for amendment or supplement of the
Registration Statement, of any preliminary prospectus or of the
Prospectus, or for additional information.
(b) The Company will give you and the Selling Stockholders notice of its
intention to file or prepare any amendment to the Registration
Statement (including any post-effective amendment) or any Rule 462(b)
Registration Statement or any amendment or supplement to the Prospectus
(including any revised prospectus which the Company proposes for use by
the Dealers in connection with the offering of the Shares which differs
from the prospectus on file at the Commission at the time the
Registration Statement became or becomes effective, whether or not such
revised prospectus is required to be filed pursuant to Rule 424(b) and
any term sheet as contemplated by Rule 434) and will furnish you and
the Selling Stockholders with copies of any such amendment or
supplement a reasonable amount of time prior to such proposed filing or
use, as the case may be, and will not file any such amendment or
supplement or use any such prospectus to which you or counsel for the
Dealers shall reasonably object.
(c) If at any time when a prospectus relating to the Shares is required to
be delivered under the 1933 Act any event occurs as a result of which
110
the Prospectus, including any amendments or supplements, would include
an untrue statement of a material fact, or omit to state any material
fact required to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they were made,
not misleading, or if it is necessary at any time to amend the
Prospectus, including any amendments or supplements thereto and
including any revised prospectus which the Company proposes for use by
the Dealers in connection with the offering of the Shares which differs
from the prospectus on file with the Commission at the time of
effectiveness of the Registration Statement, whether or not such
revised prospectus is required to be filed pursuant to Rule 424(b) to
comply with the 1933 Act, the Company promptly will advise you thereof
and will promptly prepare and file with the Commission an amendment or
supplement which will correct such statement or omission or an
amendment which will effect such compliance; and, in case any Dealer is
required to deliver a prospectus nine months or more after the
effective date of the Registration Statement, the Company upon request,
but at the expense of such Dealer, will prepare promptly such
prospectus or prospectuses as may be necessary to permit compliance
with the requirements of Section 10(a)(3) of the 1933 Act.
(d) The Company will not incur any liability or obligation, direct or
contingent, or enter into any material transaction, other than in the
ordinary course of business, except as contemplated by the Prospectus.
(e) During such period as a prospectus is required by law to be delivered
in connection with offers and sales of the Shares by an Dealer or
dealer, the Company will furnish to you at its expense, subject to the
provisions of subsection (d) hereof, copies of the Registration
Statement, the Prospectus, each preliminary prospectus and all
amendments and supplements to any such documents in each case as soon
as available and in such quantities as you may reasonably request, for
the purposes contemplated by the 1933 Act.
(f) The Company will cooperate with the Dealers in qualifying or
registering the Shares for sale under the blue sky laws of such
jurisdictions as the Company and the Dealer may agree, and will
continue such qualifications in effect so long as reasonably required
for the distribution of the Shares.
(g) The Company will use the net proceeds received by it from the sale of
the Shares being sold by it in the manner specified in the Prospectus.
(h) The Company will comply with all applicable registration, filing and
reporting requirements of the Exchange Act and the Nasdaq SmallCap
Market and will file with the Commission in a timely manner all reports
on Form SR required by Rule 463 and will furnish you copies of any such
reports you may request as soon as practicable after the filing
thereof.
Section 7. Indemnification
The Company and Selling Shareholders agree to indemnify and hold harmless each
Dealer, and each Dealer agrees to indemnify the Company and the Selling
Shareholders, against any losses, claims, damages or liabilities, joint or
several, to which such party may become subject under the 1933 Act, the Exchange
Act or other federal or state statutory law or regulation, at common law or
otherwise, arising out of such party's own conduct with respect to this
offering. The provisions of this Section shall survive any termination of this
Agreement.
Section 8. Termination
Without limiting the right to terminate this Agreement pursuant to any other
provision hereof, this agreement may be terminated by any party at any time for
any reason. The respective indemnities, agreements, representations, warranties
111
and other statements of the Company, of its officers, of the Selling
Stockholders and of the several Dealers set forth in or made pursuant to this
Agreement will remain in full force and effect, and will survive delivery of and
payment for the Shares sold hereunder.
Section 9. Applicable Law
This Agreement shall be governed by and construed in accordance with the laws of
the State of Utah.
Section 10. Signatures
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed duplicates hereof, whereupon it will
become a binding agreement among the Company, the Selling Stockholders and the
several Dealers including you, all in accordance with its terms.
Very truly yours,
The Xxxxxxx Group Career Satisfaction Corporation
By /s/ XX Xxxxxx
----------------------------------
XX Xxxxxx, Chief Executive Officer
Selling Stockholders
By /s/ XX Xxxxxx
----------------------------------
KC Homes, Agent and Attorney-in-Fact
Selected Dealer Agreement
112
