Exhibit 1.2
SELLING DEALER AGREEMENT
Invest Linc Securities, LLC, a limited liability company organized
under the laws of Delaware (the "Dealer"), hereby enters into this Selling
Dealer Agreement (the "Agreement") with Rush Financial Technologies (the
"Issuer"). Dealer, together with all other broker-dealers executing this
Agreement, shall be referred to as the "Selling Dealers."
Description of the Offering. This is a "best efforts" offering to sell between
1,000,000 and 10,000,000 shares of Rush Financial Technologies common stock (the
"Securities"). The offering is expected to continue until ____________________,
although the offering may be extended for up to 60 days. Funds will be placed in
escrow until the first purchase of at least 1,000,000 shares is completed
through this offering. If we do not sell 1,000,000 shares of Rush Financial
Technologies' common stock by _________________, we will promptly refund all
proceeds in the escrow account, without interest, unless all prospective
investors agree in writing to waive this financing condition. We will deliver
stock certificates representing shares purchased as soon as practicable, but in
no event later than 30 days after the initial close or any subsequent close of
the offering. The minimum investment will be $1,000. Invest Linc Securities,
LLC, a registered broker-dealer, is serving as the placement agent for this
offering. Broker fees and commissions, in addition to the expenses of this
offering, will be deducted directly from the proceeds of the offering.
I. Representations and Warranties of the Issuer. The Issuer
represents, covenants, warrants and agrees with Dealer for its benefit that:
A. The Issuer has prepared and filed with the Securities
and Exchange Commission (the "Commission"), a Registration Statement
and amendments thereto, on Form SB-2 (File No. 333 ________) covering
the registration of Securities under the Securities Act of 1933 (the
"Securities Act") and the Rules and Regulations of the Commission under
the Securities Act (the "Rules and Regulations"). Such Registration
Statement, as amended, qualifies for use under Form SB-2 at the time it
becomes effective. The registration statement and final prospectus
included therein, are herein respectively called the "Registration
Statement" and the "Prospectus."
B. The Registration Statement and Prospectus, and all
amendments or supplements thereto, will contain all statements which
are required to be stated therein in accordance with the Securities Act
and the Rules and Regulations and will conform in all material respects
with the requirements of the Securities Act and the Rules and
Regulations, and neither the Registration Statement nor the Prospectus,
nor any amendment or supplement thereto, will contain any untrue
statement of a material fact or omit any material fact required to be
stated therein or necessary to make the statements therein not
misleading.
C. The Accountants who have certified or shall certify
the audited financial statements of the Issuer filed and to be filed
with the Commission by being incorporated by reference as part of the
Registration Statement and the Prospectus were independent accountants
as required by the Securities Act and the Rules and Regulations.
D. The financial statements of the Issuer filed with and
as part of the Registration Statement present fairly the financial
position of the Issuer, respectively, as of the dates of such financial
statements, in conformity with generally accepted accounting
principles.
E. Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus,
and except as set forth therein or contemplated thereby: (i) there has
not been any material adverse change in the condition, financial or
otherwise, of the Issuer; and (ii) the Issuer has not incurred any
liability or obligation or entered into any transaction otherwise than
in the ordinary course of business, which change or liability,
obligation or transaction is material to the financial condition of the
Issuer
F. The Securities conform to the description thereof
contained in the Prospectus in all material respects.
G. Neither the issuance nor the sale of the Securities,
nor the consummation of any other of the transactions herein
contemplated, nor the fulfillment of the terms hereof, will conflict
with, result in a breach of or constitute a default under the terms of
any indenture, or other material agreement or instrument to which the
Issuer will be subject, or to the best of their respective knowledge,
any order or regulation applicable to any or all of them of any court,
regulatory or governmental body having jurisdiction over them or any of
their respective properties or operations
H. The Securities, when issued, will be duly authorized,
validly issued, fully paid and nonassessable.
I. The Issuer has been duly formed pursuant to Delaware
and is validly existing as a corporation in good standing under the
laws of the State of Delaware with full power and authority to own
properties (or interest therein) and conduct its business as described
in the Prospectus.
II. Representations, Warranties and Agreements of the Selected
Dealer. Dealer represents and warrants to and agrees with the Issuer as follows:
A. Dealer is registered as a broker-dealer with the
Commission, is a member in good standing of the National Association of
Securities Dealers, Inc. ("NASD") and is duly licensed and authorized
to act as a broker-dealer for the sale of securities in all
jurisdictions in which Dealer intends to or will make offers and/or
sales of the Securities pursuant to this Agreement.
B. In connection with the offer and sale of the
Securities pursuant to this Agreement, Dealer will comply with all
provisions of the Securities Act, the Rules and Regulations and other
federal laws and regulations pertaining to the sales of securities
pursuant to the Offering, the securities or "blue sky" laws and
regulations and other applicable laws and regulations of the states or
other jurisdiction in which Dealer will sell the Securities and the
Bylaws and the Rules of Conduct of the NASD, including all published
NASD interpretations thereof, whether issued by the Board of Governors
of the NASD, contained in any NASD Notice to Members or otherwise (the
"NASD Rules of Conduct").
C. Dealer will make no sales of the Securities unless
such sale is preceded or accompanied by the Prospectus.
D. Dealer will assist the Issuer in qualifying the
Securities for sale under the laws of such states or jurisdiction as
Dealer and the Issuer shall mutually agree and shall make no sale of
the Securities in any state or jurisdiction until Dealer has been
advised by the Issuer that the Securities have been duly qualified for
sale therein.
E. Pursuant to Dealer's appointment as agent for the
Issuer as set forth in Section IV below, insofar as it is within
Dealer's control, Dealer will in good faith use its best efforts to
conduct the Offering in compliance with the Securities Act and the
Rules and Regulations, the NASD Rules of Conduct and the permit(s) or
authorizations issued with respect to the Offering by any state or
other securities regulatory authority and in this regard:
1. Dealer will, during the course of the
Offering, and to the extent Dealer or any person associated
with Dealer makes any representations other than those set
forth in the Prospectus, not make any untrue statement of a
material fact or omit to state a material fact required to be
stated or necessary to make any statement made not misleading
concerning the Offering or any matters set forth in or
contemplated by the Prospectus.
2. Dealer will, prior to the sale of any of the
Securities, make every reasonable effort to determine that an
investment in the Securities is a suitable and appropriate
investment for each prospective Investor and Dealer will
prepare and maintain for Dealer's benefit and for the benefit
of the Issuer and the Issuer file memoranda and other
appropriate records substantiating the foregoing, which
records shall include but not be limited to the prospective
Investor's age, investment objectives, investment experience,
income, net worth, financial situation and other investments.
3. Dealer will, in the event Dealer uses any
sales materials (which, other than any such materials
furnished to Dealer by the Issuer, shall be prepared and
provided solely at Dealer's own expense) other than the
Prospectus, refrain from providing any such materials to any
prospective Shareholder unless such materials have been
approved by the Commission and the securities regulatory
authority of the state or other jurisdiction in which the
materials are to be used, and are accompanied or preceded by
the Prospectus.
4. Until the Termination Date, if any event
affecting the Issuer, or Dealer should occur which the Issuer
or their counsel believe should be set forth in a supplement
or amendment to the Prospectus, Dealer agrees to distribute
such supplement or amendment to persons who have previously
received a copy of the Prospectus from Dealer and continue to
be interested in the Issuer and further agrees to include such
supplement or amendment in all further deliveries of the
Prospectus. The Issuer shall, at its own expense, prepare and
furnish to Dealer a reasonable number of copies of that
supplement or amendment for such distribution.
5. Dealer will implement appropriate procedures
designed to assure that each solicitation and sale made by
Dealer and the persons associated with Dealer, and Dealer's
and their efforts hereunder, will comply with Free-Riding and
Withholding Rules of IM-2110 and will be in accordance with
the terms of this Agreement and the NASD Rules of Conduct and,
particularly with the terms of Rules 2420, 2730, 2740, 2750
and 2780 of the NASD Rules of Conduct.
6. Dealer will at all times comply with the
requirements of Rule 15c2-4 of the Commission, and all
interpretations thereof issued by the NASD. In this regard,
upon receipt of any checks from prospective Investors for the
Securities, Dealer shall promptly transmit the same, together
with a copy of such Person's Subscription documents, to the
Escrow Agent by noon of the next business day following
Dealer's receipt thereof, and simultaneously submit a copy of
such documents to the Issuer.
7. Dealer will provide each Investor with a
copy of the final Prospectus at least five (5) business days
prior to completion of a sale of the Securities.
8. Dealer will send each Investor a
confirmation of his or her purchase.
9. Dealer will maintain records of the
information used to determine that an investment in the
Securities is suitable and appropriate for each investor and
Dealer will maintain these records for at least six years.
III. Offering of Securities. On the basis of the representations
and warranties herein contained, but subject to the terms and conditions herein
set forth, Dealer agrees to offer the Securities on a "best efforts" basis, as
agent for the Issuer. As compensation for these services, the Issuer agrees that
the Issuer will pay Dealer a sales commission on all Securities sold as a result
of Dealer's solicitation pursuant to the terms of this Agreement of ten percent
(10%) of the offering price of the Securities (the "Sales Commission"). No fees,
expenses or commissions are payable for any other service such as for the
issuance or distribution of the Securities or the sale of any other security of
the Issuer.
Notwithstanding the foregoing, however, the obligation of the Issuer to
pay the Sales Commission shall be subject to the following conditions and
limitations:
A. The Issuer has reserved the right to accept or reject
any subscriptions for the Securities as set forth in the Prospectus and
no Sales Commission will be payable to Dealer with respect to the
tender of any subscription which is rejected by Dealer or the Issuer as
aforesaid.
B. None of such Sales Commissions will be payable or
paid until released to the Issuer, from the escrow account in which
they are to be deposited,
IV. Certain Covenants of the Issuer. The Issuer covenants and
agrees with Dealer as follows:
A. The Issuer will not at any time file or make any
amendment or supplement to the Registration Statement or Prospectus of
which Dealer shall have not previously been advised and furnished a
copy or promptly advised after filing and provided a copy of same.
B. The Issuer will advise Dealer immediately, and
confirm in writing (i) when the Registration Statement shall have
become effective with the Commission; (iii) when any post-effective
amendment to the Registration Statement shall have become effective, or
any supplement to the Prospectus or any amended Prospectus shall have
been filed; (iv) of any request of the Commission for amendment or
supplementation of the Registration Statement or Prospectus or for
additional information, and (v) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration
Statement or of the suspension of the qualification of the Securities
for offering or sale in any jurisdiction, or of the institution of any
proceedings for any such purposes. The Issuer will use commercially
reasonable efforts to prevent the issuance of any such stop order or of
any order preventing or suspending such use and to obtain as soon as
possible the lifting thereof, if issued.
C. The Issuer will deliver to Dealer without charge, and
when requested, such number of copies of the Prospectus (as
supplemented or amended, if the Issuer shall have made any supplements
or amendments thereto) as Dealer may reasonably request.
D. The Issuer will comply to the best of its ability
with the Securities Act and the Rules and Regulations so as to permit
the continuance of sales of and dealings in the Securities under the
Securities Act. If at any time when a prospectus is required to be
delivered under the Securities Act, an event shall have occurred as a
result of which it is necessary to amend or supplement the Prospectus
in order to make the statements therein not false or misleading or to
make the Prospectus comply with the Securities Act, the Issuer will
notify Dealer promptly thereof and will furnish to Dealer an amendment
or supplement which will correct such statement in accordance with the
requirements of the Securities Act and the Rules and Regulations.
E. The Issuer will use commercially reasonable efforts
to qualify the Securities for sale under the laws of such states or
jurisdictions as the Issuer shall determine and will comply to the best
of its ability with such laws so as to permit the continuance of sales
of and dealings in the Securities thereunder.
F. The Issuer will furnish to Dealer copies of all such
documents, reports and information as shall be of general interest and
are furnished by the Issuer to Investors generally.
G. The Issuer will pay and bear all costs and expenses
in connection with the preparation, printing and filing of the
Registration Statement, the Prospectus and amendments or supplements
thereto, including fees of legal counsel for the Issuer and the Dealer,
the qualifying of the Securities under the laws of certain
jurisdictions as aforesaid, including filing fees and fees and
disbursements of counsel in connection therewith, and the cost of
furnishing to Dealer and other Selling Dealers copies of the
Registration Statement and the Prospectus and amendments or supplements
thereto as herein provided.
V. Conditions to Dealer's Obligations. Dealer's obligations
hereunder shall be subject to the accuracy of and compliance with, as of the
date hereof and through the Termination Date, the representations, warranties
and covenants of the Issuer, contained in Sections I and IV above, to the
performance by the Issuer of their obligations to be performed thereunder, and
to the receipt by Dealer of the following:
A certificate dated as of the later of the effective date of the
Registration Statement, or the date of this Agreement, signed by the Issuer to
the effect that, as of such date (i) the representations and warranties of the
Issuer contained in the Agreement are correct; and (ii) it has carefully
examined the Registration Statement and the Prospectus, and in its opinion (a)
neither the Registration Statement nor the Prospectus nor any amendment or
supplement thereto contains any untrue statement of a material fact or omits to
state any material fact required to be stated therein or necessary to make the
statements therein not misleading, and (b)there are no material legal or
governmental proceedings to which the Issuer is party or of which the business
or the property of the Issuer is the subject which are not disclosed in the
Registration Statement and Prospectus.
VI. Conditions to Issuer's Obligations. The obligations of the
Issuer shall be subject to the accuracy as of the date hereof, through the
Termination Date, of the representations and warranties contained in Section II
hereof, to the performance by Dealer of its obligations hereunder required to be
performed on or before the Termination Date, and to the following further
conditions, namely, that it is understood and agreed that neither Dealer nor any
of its representatives is authorized to make any representations on behalf of
the Issuer, other than those contained in the Prospectus, or to act as the agent
of the Issuer in any other capacity except as expressly set forth herein, and
each time Dealer submits a subscription of a potential Investor, Dealer shall be
deemed to have represented to the Issuer that Dealer has complied with the
foregoing conditions.
VII. Indemnification.
A. The Issuer will indemnify and hold Dealer harmless
against any losses, claims, damages, or liabilities, joint or several:
1. to which Dealer may become subject under the
Securities Act, any state securities laws or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, the Prospectus
or any amendment or supplement thereto, any other document
filed by the Issuer with any state securities regulatory
authority in connection with the Offering or any sales
literature prepared by the Issuer, or arise out of or are
based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to
make the statements therein not misleading, unless the
statement or omission was the direct result of information
provided to the Issuer or their agents by Dealer; or
2. to which Dealer may become subject due to
any misrepresentation by the Issuer or their agents (other
than Dealer or any other Selling Dealer) of a material fact in
connection with the sale of the Securities, unless the
misrepresentation of such material facts was the direct result
of information provided to the Issuer or their agents by
Dealer; or
3. to which Dealer may become subject as a
result of any breach by the Issuer of the representations and
warranties contained herein.
The Issuer will reimburse Dealer for any legal or other expenses
reasonably incurred in connection with investigating or defending any such loss,
claim, damage or liability (or actions in respect thereof); provided, however,
that the Issuer shall not be required to so reimburse Dealer in any such case to
the extent that such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement or Prospectus, or any amendment or
supplement thereto, any other document filed by the Issuer with any state
securities regulatory authority in connection with the Offering or in any sales
literature that was prepared by the Issuer in reliance upon and in conformity
with written information furnished to the Issuer by Dealer specifically for use
therein. This indemnity agreement shall be in addition to any liabilities which
the Issuer may otherwise have in connection with the Offering.
The foregoing indemnity agreement shall extend upon the same terms and
conditions to, and shall inure to the benefit of, each Person, if any, who
controls Dealer within the meaning of the Securities Act.
B. Dealer agrees to indemnify and hold harmless the
Issuer against any losses, claims, damages or liabilities, joint or
several, to which any or all of them may become subject, under the
Securities Act, any state securities laws or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon (A) any untrue statements or alleged
untrue statement of any material fact contained in: (i) the
Registration Statement, the Prospectus, or any amendment or supplement
thereto, (ii) any other document filed by the Issuer with any state
securities regulatory authority in connection with the Offering or
(iii) any sales literature prepared by the Issuer, or (B) the omission
or the alleged omission to state in the Registration Statement or
Prospectus or any amendment or supplement thereto, any other document
filed by the Issuer with any state securities regulatory authority in
connection with the Offering or in any sales literature prepared by the
Issuer a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement or Prospectus, or amendment or supplement thereto, any other
document filed by the Issuer with any state securities regulatory
authority in connection with the Offering or in any sales literature,
in reliance upon and in conformity with written information furnished
to the Issuer by Dealer specifically for use therein (or with respect
to sales literature, to the extent that such sales literature either
was prepared by Dealer or contained information furnished by Dealer);
and Dealer will reimburse the Issuer for any legal or other expenses
reasonably incurred in connection with investigating or defending any
such loss, claim, damage or liability(or action in respect thereof).
This indemnity agreement shall be in addition to any liabilities to the
Issuer or any other Person which Dealer may otherwise have in
connection with this Offering.
The foregoing indemnity agreement shall extend upon the same terms and
conditions to, and shall inure to the benefit of, each Person, if any, who
controls the Issuer within the meaning of the Securities Act and its agents,
attorneys and independent auditors.
C. Promptly after receipt by a party hereto of notice of
the commencement of any action for which such party is eligible to be
indemnified hereunder (the "Indemnified Party"), such Indemnified Party
shall, if a claim in respect thereof is to be made against the party
required under this Agreement to indemnify the Indemnified Party (the
"Indemnifying Party") notify the Indemnifying Party in writing of the
commencement thereof, within 15 days of receipt of any complaint, claim
or other notice of commencement of an action; but the omission so to
notify the Indemnifying Party shall not relieve it from any liability
which it may have to any Indemnified Party otherwise than under this
Section VIII. In case any such action shall be brought against an
Indemnified Party, such party shall notify the Indemnifying Party of
the commencement thereof, and the Indemnifying Party shall be entitled
to participate in, and, to the extent it shall wish, jointly with any
other Indemnifying Party similarly notified, to assume the defense
thereof, with counsel satisfactory to such Indemnifying and Indemnified
Parties. After the Indemnified Party shall have received notice from
the agreed-upon counsel that the defense has been so assumed, in the
event that the Indemnified Party nonetheless elects to participate in
the defense of any such action for any reason other than the presence
of a conflict of interest, the Indemnifying Party shall not be
responsible for any legal or other expenses subsequently incurred by
the Indemnified Party in connection with the defense thereof.
VIII. Termination. This Agreement shall automatically be terminated,
and the Issuer shall have no liability for the payment of any commissions or
fees hereunder 30 days after the termination of the offering, as described in
the Prospectus.
IX. Applicable Law. This Agreement shall be construed in
accordance with the laws of the State of Illinois.
X. Notices. All notices or communications hereunder, except as
herein otherwise specifically provided, shall be in writing and if sent to
Dealer shall be mailed, delivered or telegraphed and confirmed to Dealer at its
address set forth above. Dealer and the Issuer may change Dealer's or their
address for receiving notices by written notice to the other parties hereto.
XI. Parties. This Agreement shall inure to the benefit of and be
binding upon Dealer, the Issuer, and each of Dealer's and their respective
successors and assigns.
XII. Severability. If any term or provision hereof is illegal or
invalid for any reason whatsoever, such provision shall be deemed stricken from
this Agreement and such illegality or invalidity shall not affect the validity
of the remainder hereof.
XIII. Headings. The headings in this Agreement are provided for
convenience only and are in no way intended to describe, interpret, define, or
limit the scope, extent, or intent of this Agreement or any provisions thereof.
If the foregoing correctly sets forth our understanding, please so
indicate in the space provided below for that purpose whereupon this letter
shall constitute a binding agreement among us.
Very truly yours,
INVEST LINC SECURITIES, LLC
By:____________________________________
Title:_________________________________
Dated:_________________________________
RUSH FINANCIAL TECHNOLOGIES, INC.
By:____________________________________
Its President
