EXHIBIT 1.04
A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION BUT HAS NOT YET BECOME EFFECTIVE. NO
OFFER TO BUY THE SECURITIES CAN BE ACCEPTED AND NO PART OF THE PURCHASE PRICE
CAN BE RECEIVED UNTIL THE REGISTRATION STATEMENT HAS BECOME EFFECTIVE AND ANY
SUCH OFFER MAY BE WITHDRAWN OR REVOKED, WITHOUT OBLIGATION OR COMMITMENT OF ANY
KIND, AT ANY TIME PRIOR TO NOTICE OF ITS ACCEPTANCE GIVEN AFTER THE EFFECTIVE
DATE.
2,000,000 SHARES
EASYLINK INFORMATION TECHNOLOGY CO., LTD.
(A BRITISH VIRGIN ISLANDS CORPORATION)
COMMON STOCK
(NO PAR VALUE)
SELECTED DEALERS AGREEMENT
September __ 2002
Ladies and Gentlemen:
We have agreed to act as the exclusive agent for Easylink Information
Technology Co., Ltd., a British Virgin Islands corporation (the "Company),
pursuant to an Underwriting Agreement between the Company and us (the
"Underwriting Agreement"), in connection with the offer and sale to the public
of up to an aggregate of 2,000,000 shares of the Company's Common Stock, no par
value (the "Shares"). The Shares and certain of the terms on which they are
being offered are more fully described in the enclosed Prospectus.
We are offering, on behalf of the Company, to certain dealers (the
"Selected Dealers"), among whom we may be included, subject to prior sale, when,
as and if delivered by the Company and accepted by the Underwriters on behalf of
the purchasers thereof and subject to the approval of legal matters by their and
our respective counsel and subject to the other terms and conditions hereof, a
part of the Shares to be offered and sold by such Selected Dealers to the public
on a best efforts basis at the initial public offering price of $5.00 per Share.
Subject to the sale of a minimum
of 1,400,000 of such Shares, you will earn a commission of $0.25 per share for
each share sold by you.
You confirm that you are a Selected Dealer who is actually engaged in
the investment banking or securities business and who is 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 its possessions and not registered under
the Securities Exchange Act of 1934 (the "1934 Act") 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. In making any sales you
hereby agree to comply with the provisions of Rule 2740 of the NASD, and if you
are a foreign dealer and not a member of the NASD you also hereby agree to
comply with the NASD's interpretation IM-2110.1. Free-Riding and Withholding, to
comply, as though you were a member of the NASD, with the provisions of Rules
2730 and 2750 of the NASD, and to comply with Rule 2420 of the NASD as that
section applies to a nonmember foreign dealer. You, by your execution of this
Agreement, represent that neither you nor any of your directors, officers,
partners, or "person associated with you" (as defined in the Bylaws of the NASD)
nor, to your knowledge, any "related person" (as defined by Rule 2710 of the
NASD) have participated or intend to participate in any transaction or dealings
as to which documents or information are required to be filed with the NASD
pursuant to such Rule 2710, and as to which such documents or information have
not been so filed in a timely manner. You also acknowledge and represent that
you have never acquired any unregistered securities of the Company except as may
be disclosed in Part II to the Company's Registration Statement filed with the
United States Securities and Exchange Commission.
The initial public offering price of the Shares is to be $5.00 per
share. Dealers who accept this Agreement may allow a commission of not in excess
of $0.25 per share sold by any other dealers who are either members of the NASD
or foreign dealers who agree to abide by the conditions with respect to foreign
dealers set forth in the preceding paragraph.
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. Neither you nor any
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other person is authorized by the Company or us to give any information or make
any representations other than those contained in the Prospectus in connection
with the sale of any of the Shares. No dealer is authorized to act as agent for
the Underwriter when offering the Shares to the public or otherwise.
Upon release by us, you may offer the Shares at the initial public
offering price, subject to the terms and conditions hereof. The Underwriter and
the Selected Dealers may, with our consent, re- allow Shares from and to each
other at the initial public offering price less a commission no greater than the
commission to Selected Dealers.
You confirm that you will at all times comply with the provisions of
Rule 10b-6 under the 1934 Act applicable to this offering. You agree that you
will not, until advised by us in writing or by wire that the entire offering has
been distributed and closed, bid for or purchase Shares in the open market or
otherwise make a market in the Shares or in any way attempt to induce others to
purchase Shares in the open market. Nothing contained in this paragraph shall,
however, preclude you from acting as agent in the execution of unsolicited
orders of customers in transactions effectuated for them through a market maker.
Payment for Shares purchased by you is to be made by certified or bank
cashier's check at our office at 0000 X. Xxxxxxxx, Xxxxx 000, Xxxxxxxxx, XX
00000 at the initial public offering price less the above concession, on such
date as we may advise, in Denver Clearing House funds to our order against
delivery of the Shares to be purchased by you.
This Agreement shall terminate at the close of business on the 90th day
after the effective date of the Registration Statement, unless earlier
terminated by us. We may terminate this Agreement at any time by written
facsimile or telegraphic notice to you.
In the event that prior to the termination of this Agreement we
purchase, or contract to purchase, for our account, in the open market or
otherwise, any Shares delivered to you, you agree to repay to us for our account
the amount of the above commission to Selected Dealers plus brokerage
commissions and transfer taxes paid in connection with such purchase or contract
to purchase.
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You agree that at any time or times prior to the termination of this
Agreement you will, upon our request report to us the number of Shares sold to
members of the public by you under this Agreement and the number of Shares which
then remains unsold by you and will, upon our request, at any such time or times
allow us to sell the number of such unsold Shares as we may designate, at the
initial public offering price less an amount to be determined by us not in
excess of the commission paid to you.
You agree to indemnify us and to hold us harmless and each person, if
any, who controls us, within the meaning of Section 15 of the Securities Act of
1933 (the "1933 Act"), against any and all losses, claims, damages, or
liabilities to which we may become subject as a result of your breach of this
Agreement or of your failure to perform any of the promises contained herein,
and will also reimburse us, or any controlling person thereof, for any legal or
other expenses reasonably incurred in connection with investigating or defending
any such action or claim.
We shall have full authority to take such action as we may deem
advisable in respect of all matters pertaining to the offering. We shall be
under no liability to you except for lack of good faith and for obligations
expressly assumed by us in this Agreement. Nothing contained in this paragraph
is intended to operate as, and the provisions of this paragraph shall not in any
way whatsoever constitute, a waiver by you of compliance with any provision of
the Securities Act of 1933, as amended (the "1933 Act"), or of the rules and
regulations of the Securities and Exchange Commission (the "Commission") issued
thereunder.
Upon application to us, we will inform you as to the jurisdictions in
which we believe the Shares have been qualified for sale under, or are exempt
from the requirements of, the respective securities laws of such jurisdictions,
but we assume no responsibility or obligation as to your right to sell Shares in
any jurisdiction.
You confirm that you are familiar with Securities Act Release No. 4968
and Rule 15c2-8 under the 1934 Act relating to the distribution of preliminary
and final prospectuses 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
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request for the purposes contemplated by the 1933 Act, or the 1934 Act or the
rules and regulations of the Commission thereunder.
The undersigned hereby confirms that it is in compliance with
subsections (c)2 and (c)3 of Rule 2720 of the NASD, and therefore is eligible to
participate in this Offering.
Any notice from us to you shall be deemed to have been duly given if
mailed, telegraphed, or transmitted via facsimile to you at the address to which
this Agreement is mailed.
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Please confirm your agreement hereto and indicate the number of Shares
ordered by completing the Offer to Participate included herewith and by
completing the information requested at the bottom of this page, signing in the
space provided and by telegraphing or transmitting via facsimile the completed
Agreement at once to us at 0000 Xxxxx Xxxxxxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxx
00000, Fax ___________ Attention: Syndicate Department, the enclosed duplicate
of this letter. Upon receipt thereof this letter and such signed duplicate copy
will evidence the agreement between us.
Very truly yours,
XXXXXXX XXXXXXX INVESTMENTS, INC.
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By Xxxxxx Xxxxx
Confirmed as of the date first above written:
(Firm Name)
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By (Authorized Representative)
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( )
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(Address)
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(Telephone Number)
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(Tax I.D. Number)
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(Number of shares indicated for)
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OFFER TO PARTICIPATE
Xxxxxxx Xxxxxxx Investments Inc, Inc.
0000 Xxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
We hereby enter our order for _____________ shares of Common Stock of
Easylink Information Technology Co., Ltd., a British Virgin Island corporation,
under the terms and conditions of the foregoing letter.
We hereby confirm our agreement to all the terms and conditions stated
in the foregoing letter. 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 confirm that we are actually engaged in the investment banking or securities
business and we are either a member in good standing of the National Association
of Securities Dealers, Inc. (the "NASD"), or a dealer with its principal place
of business located outside the United States, its territories or its
possessions and not registered under the Securities Exchange Act of 1934 who
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 sale we agree to comply with the provisions of Rule 2740 of the NASD,
and if we are a foreign dealer and not a member of the NASD also to comply with
the NASD's interpretation IM-2110.1. Free-Riding and Withholding, to comply, as
though we were a member of the NASD, with the provisions of Rules 2730 and 2750
of the NASD, and to comply with Rule 2420 of the NASD as that section applies to
a nonmember foreign dealer.
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(Firm Name)
By
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(Authorized Representative)
Dated: , 2001
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