EXHIBIT 1.2
NORTHRIDGE CAPITAL CORPORATION
SELECTED DEALER AGREEMENT
December___, 1997
[Insert Name
and Address of
Additional Selling Agent(s)]
Re: Heartland Communications & Management, Inc.
Ladies and Gentlemen:
Northridge Capital Corporation (the "Selling Agent") has agreed to serve as
exclusive lead placement agent, on a best efforts basis, in connection with the
offer and sale of the common stock (the "Shares") of Heartland Communications &
Management, Inc., a Delaware corporation ("HCMI"). Up to $12,500,000 Shares
shall be offered by the Selling Agent and a selected dealer group in this
offering (the "Offering").
The Selling Agent has entered into a Managing Placement Agent Agreement
(the "Agency Agreement") dated November ___, 1997 with HCMI pursuant to which
the Selling Agent has agreed to use its best efforts to obtain subscribers for
the Shares. A copy of such Agency Agreement has been furnished to you and is
hereby incorporated by reference; you understand the terms used in this
Agreement shall have the meanings ascribed to them in the Agency Agreement
and/or the Prospectus unless the context indicates otherwise. As provided in
such Agency Agreement, HCMI has agreed that the Selling Agent may, in its
discretion, use the services of other members of the National Association of
Securities Dealers, Inc. (the "NASD") or of any foreign securities firm which is
eligible for membership in the NASD and which agrees to abide by the NASD Rules
of Fair Practice (collectively, "Additional Selling Agents"), in connection with
the offer and sale of the Shares. You are invited to become one of the
Additional Selling Agents and, by your best efforts, to obtain subscribers for
the Shares in accordance with the Agency Agreement and the following terms and
conditions.
All Shares, if any, will be offered to members of the general public,
subject to HCMI's right to reject such orders in whole or in part. The offering
to the general public may include the sale by other members of the National
Association of Securities Dealers, Inc. (the "NASD"). Such members shall be part
of a selling group managed by the Selling Agent. All purchases will be subject
to the maximum and minimum purchase limitations and other terms and conditions
described in the Prospectus.
All orders must include acceptable payment (or appropriate instructions
authorizing withdrawal of payment from one or more escrow accounts at the escrow
agent bank described in the Prospectus) and appropriate documentation including
a completed Subscription Agreement and Power of Attorney. Deposits for the
purchase of Shares will earn interest (based upon the interest
rate received on the escrow account) from receipt of the payment by the Escrow
Agent (described in the Prospectus) to the date on which such sales of the
Shares are actually consummated.
The Selling Agent has been advised by HCMI that the Prospectus was declared
effective by the Securities and Exchange Commission on November ___, 1997 (the
"Effective Date"). The Shares will be offered and sold on the terms and subject
to the conditions set forth herein and in the Prospectus.
All Shares will be offered and sold at the same $5.00 price per share
Selling Price (as defined). Following completion of the Initial Offering Period
(as defined) and until the end of this up to eighteen (18) month Offering
Period, subscribers must subscribe for and submit payments for a specific number
of shares at the Selling Price.
You are invited to become one of the selected dealers (a "Dealer") with
respect to the sale of the Shares, and by your confirmation hereof, you agree to
act in the capacity of a selected dealer and to use your best efforts to find
purchasers for the Shares in accordance with the following terms and conditions:
1. Solicitation and Solicitation Material; Best Efforts.
a. Solicitation and other activities by Dealer hereunder shall be
undertaken only in accordance with applicable laws and regulations and the terms
hereof. Accompanying this letter is a copy of the Prospectus prepared by HCMI
for use in conjunction with the Offering and sale of the Shares. Additional
copies of the Prospectus and of all amendments and supplements thereto will be
furnished to you by the Selling Agent in reasonable quantities upon your
request. Dealer is not authorized to use any solicitation material other than
such Prospectus or such other material as may be provided by HCMI. Any such
other material that is provided by HCMI is hereinafter referred to as
"Supplemental Literature."
b. Dealer agrees to use its best efforts to procure subscribers for
Shares during a period commencing current with the Effective Date and ending at
5:00 P.M., Eastern Time, on _____________, 1998, subject to an extension up to
_________, 1998, unless earlier terminated or extended at the option of HCMI.
2. Compensation.
a. As compensation for the services of Dealer in soliciting and
obtaining purchasers of the Shares, unless otherwise agreed in writing by the
Selling Agent, Dealer will receive a selling concession equal to __% of the
aggregate subscription on Shares sold by Dealer. Neither the Selling Agent nor
HCMI shall be responsible for any costs or expenses incurred by Dealer in
connection with the performance of Dealer's obligations under this Agreement.
All such costs and expenses shall be borne by Dealer.
b. Dealer will not be entitled to receive compensation pursuant to
this Section 2 in any case in which it is determined by the Selling Agent that
(i) the solicitation by Dealer was made in violation of applicable law or the
terms of this Agreement; (ii) Dealer is not a member in good
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standing of (or an entity not properly exempt from membership in) the National
Association of Securities Dealers, Inc. (the "NASD") or a licensed broker-dealer
in good standing under applicable laws at the time compensation would otherwise
be payable to Dealer hereunder; or (iii) Dealer has not delivered to the Selling
Agent an executed original of this Agreement signed by an authorized officer of
Dealer.
c. Dealer will not be entitled to receive compensation pursuant to
this Section 2 with respect to subscriptions obtained by Dealer if such
subscriptions are not accepted by HCMI for any reason, including termination of
the Offering by HCMI prior to subscription of the maximum amount of Shares being
offered. HCMI has the right, to be exercised in its sole discretion, to reject
any subscription for any reason whatsoever.
d. In the event that the Selling Agent delivers compensation to
Dealer and it is subsequently determined by the Selling Agent that all or part
of such compensation violates Subsection (b) or (c) of this Section 2, the
Selling Agent shall notify Dealer of the amount of compensation wrongfully paid.
Dealer shall refund the amount of compensation specified in the notice within
five (5) business days of the day on which Dealer receives such notice.
3. Unauthorized Information and Representations. Neither Dealer nor any
other person is authorized by the Selling Agent or HCMI to give any information
or make any representations in connection with this Agreement or the Offering or
sale of the Shares other than the information or representations contained in
the Prospectus, as supplemented or amended, or any Supplemental Literature.
Dealer agrees not to publish, circulate or otherwise use any advertising or
solicitation material other than the Prospectus, as supplemented or amended, or
any Supplemental Literature.
4. Compliance with Securities Act of 1933 and the Securities Exchange Act
of 1934. In making offers and sales of the Shares, Dealer agrees to comply with
any applicable requirements of the Securities Act of 1993, as amended (the "1933
Act"), and the Securities Exchange Act of 1934, as amended (the "1934 Act"), and
the rules and regulations thereunder.
5. Representations and Warranties of Dealer. Dealer represents and
warrants to, and agrees with, the Selling Agent as follows:
a. Authority and Non-Contravention. Dealer has all requisite
corporate power and authority to enter into this Agreement. The execution,
delivery and performance of this Agreement will not conflict with or result in a
breach of any of the provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any of the
property or assets of Dealer pursuant to the terms of any agreement or
instrument to which Dealer is now a party, or by which Dealer will be bound, and
will not conflict with or result in a violation of any law, governmental or
administrative regulation or court decree applicable to Dealer or of the
provisions of Dealer's Articles of Incorporation, if any.
b. NASD Membership. Except as to foreign brokers properly exempt
from such requirements, Dealer is a member in good standing of the NASD, and in
making the offers and sales of the Shares, Dealer will comply with the NASD's
Interpretation with respect to Free-Riding and Withholding and with the
provisions of Sections 8, 24, 25 and 36 of Article III of the NASD Rules
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of Fair Practice. Neither Dealer nor any of its directors, officers, partners,
affiliates, associates or any person who constitutes a "related person" of
Dealer (as the term "related person" is defined in the NASD Rules of Fair
Practice) (i) has participated in any private placement involving the securities
of HCMI, and/or any affiliate thereof or purchased any such securities in a
private transaction within the 18 months preceding the date hereof; (ii) has
purchased any warrants, options or other securities of HCMI and/or any affiliate
thereof within the 12 months preceding the date hereof or (iii) has had any
other dealings with HCMI or any subsidiary or controlling shareholder thereof,
other than relating to this Agreement, as to which documents or information are
required to be filed with the NASD pursuant to its Interpretation with respect
to Review of Corporate Financing.
c. Licensed Broker-Dealer. Dealer is registered as a broker-dealer
(or any similar term) under the 1934 Act and the securities laws of each state
in which Dealer conducts its solicitation activities (or, if a foreign broker is
properly exempt from such requirements).
d. Employees of Dealer. All employees of Dealer are duly licensed
under applicable law to carry out the transactions contemplated by this
Agreement.
e. Additional Investment Qualifications. Dealer will not offer or
sell the Shares to any pension and profit sharing plans, any individual
retirement account arrangements or any other qualified retirement plans
sponsored by HCMI and/or any other affiliate of such entities that are
ineligible to invest in the Shares because of potential prohibited transaction
issues which may arise in connection with such investment pursuant to Section
4975 of the Internal Revenue Code of 1986, as amended, and Section 406 of the
Employee Retirement Security Act of 1974, as amended.
f. Offers. Dealer will effect offers in compliance with applicable
law and will not make an offer without delivering a copy of the Prospectus, as
supplemented or amended, to the offeree.
g. Delivery of Subscription Agreement. Dealer will cause each
subscriber solicited by Dealer to complete, execute and deliver to the
Subscription Agreement authorized for use by HCMI, together with a check, bank
draft or money order payable, to the order of Heartland Communications &
Management, Inc. -- Escrow Account during both the Initial Offering Period (as
defined) and the balance of this up to nine (9) month Offering Period (as
defined). Such payment shall be in an amount equal to $5.00 per share during
the Initial Offering Period and the Selling Price per share of the Shares
purchased during the balance of the up to nine (9) month Offering Period.
Checks shall be delivered to the Escrow Agent by 12:00 p.m. of the next business
day after receipt by Dealer.
h. Reports. Dealer will advise the Selling Agent on a daily basis of
the amount of Shares sold by Dealer.
6. Blue Sky Matters. Dealer will be informed as to the states in which
HCMI's counsel has advised the Selling Agent that the Shares have been
registered or otherwise qualified for sale or exempt under the respective
states' securities laws. The Selling Agent has not assumed and will not assume
any obligation or responsibility as to whether the Shares is so registered or
otherwise qualified or exempt or whether the Shares can be offered and sold in
any such state.
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7. Liability. As manager of the Offering, the Selling Agent shall have
full authority to take such action as it may deem advisable in respect to all
matters pertaining to the Offering or arising thereunder. The Selling Agent
shall be under no liability to Dealer, except such as may be incurred under the
1933 Act and except for lack of good faith and for obligations expressly assumed
by Selling Agent in this Agreement. No obligation on the part of the Selling
Agent shall be implied or inferred herefrom. Nothing will constitute the
Dealers as an association or separate entity or partners with the Selling Agent,
or with each other, but Dealer will be responsible for its share of any
liability or expense based on any claim to the contrary.
8. Effective Date of This Agreement and Termination. Provided that
Dealer has executed and delivered one copy of this Agreement to the Selling
Agent, this Agreement shall become effective at McLean, Virginia, concurrent
with the Offering's Effective Date. This Agreement will terminate at the
earlier of (i) the expiration of the Offering Period, (ii) the day and time
HCMI, in its sole discretion, terminates the Offering or (iii) the day and time
the Selling Agent, in its sole discretion, terminates this Agreement; provided,
however, any termination under clause (ii) or (iii) of this Section 8 must be
preceded by a written notice to Dealer that specifies the time and date of
termination and is received by Dealer at least three (3) business days before
the date of termination; provided, further, that any such termination pursuant
to this Section 8 shall not affect any previously incurred obligation hereunder
to pay compensation pursuant to this Agreement.
9. Survival of Representations and Warranties. The representations and
warranties set forth in Section 5 hereof shall remain in full force and effect
and survive the termination of this Agreement.
10. Parties. This Agreement shall be binding upon, and inure solely to
the benefit of HCMI, the Selling Agent and Dealer and their respective
successors and assigns, and no other person shall acquire or have any right
under or by virtue of this Agreement. No purchaser of any of the Shares shall
be deemed a successor or assign solely by reason of such purchase.
11. Partial Invalidity. The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the validity
or enforceability of any other Section, paragraph or provision hereof. If any
Section, paragraph or provision of this Agreement is for any reason determined
to be invalid or unenforceable, there shall be deemed to be made such minor
changes (and only such minor changes) as are necessary to make it valid and
enforceable.
12. Entire Agreement. This Agreement constitutes the entire agreement of
the parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof. This Agreement may be executed in several
counterparts, each one of which shall be an original, and all of which shall
constitute one and the same document.
13. Notices. Any notice from the Selling Agent to Dealer shall be deemed
to have been duly given if mailed or faxed (with original to follow) to Dealer
at the address set forth herein. Any notice from Dealer to the Selling Agent
shall be deemed to have been duly given if mailed or telegraphed to the Selling
Agent at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ -- ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇, President).
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14. Attorney's Fees. In the event that any party hereto must resort to
legal action in order to enforce the provisions of this Agreement or to defend
any such suit, the prevailing party shall be entitled to reimbursement from the
other party for all reasonable attorney's fees and other costs incurred in
commencing or defending such suit.
15. Headings. The headings herein are for convenience of reference only,
do not constitute a part of this Agreement and shall not be deemed to limit or
affect any of the provisions hereof.
16. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Georgia.
17. Confirmation. Please confirm your agreement to become a soliciting
dealer under the terms and conditions set forth herein by executing and
returning the enclosed duplicate copy of this Agreement at once to the Selling
Agent at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ -- ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇.
Very truly yours,
NORTHRIDGE CAPITAL CORPORATION
By:_____________________________
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, President
This Selected Dealer Agreement is
accepted and confirmed this
______ day of ___________, 199 .
DEALER/NAME:___________________________
By:____________________________________
Name:__________________________________
Title:_________________________________
Address:_______________________________
_______________________________________
Telephone No. ( )____________________
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