Exhibit 1.2
LADENBURG XXXXXXXX & CO. INC.
000 XXXX 00XX XXXXXX
00XX XXXXX
XXX XXXX, XXX XXXX 00000
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SELECTED DEALERS AGREEMENT
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Dear Sirs:
1. Registration under the Securities Act of 1933, as amended ("Act"),
of the 10,000,000 Units* of Geneva Acquisition Corporation ("Company"), as more
fully described in the Preliminary Prospectus, dated ______________, 2006, and
in the final prospectus ("Prospectus") which will be forwarded to you, will
become effective in the near future. We, as the Underwriters, are offering
certain of the Units for purchase by a selected group of dealers ("Selected
Dealers") on the terms and conditions stated herein.
Authorized Public Offering Price: $6.00 per Unit.
Dealers' Selling Concession: Not to exceed $0.__ per Unit payable upon
termination of this Agreement, except as
provided below. We reserve the right not to
pay such concession on any of the Units
purchased by any of the Selected Dealers
from us and repurchased by us at or below
the price stated above prior to such
termination.
Reallowance: You may reallow not in excess of $0.__ per
Unit as a selling concession to dealers who
are members in good standing of the National
Association of Securities Dealers, Inc.
("NASD") or to foreign dealers who are not
eligible for membership in the NASD and who
have agreed (i) not to sell the Units within
the United States of America, its
territories or possessions or to persons who
are citizens thereof or residents therein,
and (ii) to abide by the applicable Conduct
Rules of the NASD.
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* Plus the over-allotment option available to the Underwriters to purchase up
to an additional 1,500,000 Units.
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Delivery and Payment: Delivery of the Units shall be made on or
about ________, 2006 or such later date as
we may advise on not less than one day's
notice to you, at the office of Ladenburg
Xxxxxxxx & Co. Inc., 000 Xxxx 00xx Xxxxxx,
00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at
such other place as we shall specify on not
less than one day's notice to you. Payment
for the Units is to be made, against
delivery, at the authorized public offering
price stated above, or, if we shall so
advise you, at the authorized public
offering price less the dealers' selling
concession stated above, by wire transfer in
Federal (same day) funds or by certified or
official bank check in New York Clearing
House Funds payable to the order of
Ladenburg Xxxxxxxx & Co. Inc.
Termination: This Agreement shall terminate at the close
of business on the 45th day following the
effective date of the Registration Statement
(of which the enclosed Prospectus forms a
part), unless extended at our discretion for
a period or periods not to exceed in the
aggregate 30 additional days. We may
terminate this Agreement, whether or not
extended, at any time without notice.
2. Any of the Units purchased by you hereunder are to be offered by
you to the public at the public offering price, except as herein otherwise
provided and except that a reallowance from such public offering price not in
excess of the amount set forth on the first page of this Agreement may be
allowed as consideration for services rendered in distribution to dealers that
(a) are actually engaged in the investment banking or securities business; (b)
execute the written agreement prescribed by Rule 2740 of the NASD Conduct Rules;
and (c) are either members in good standing of the NASD or foreign banks,
dealers or institutions not eligible for membership in the NASD that represent
to you that they will promptly reoffer such Units at the public offering price
and will abide by the conditions with respect to foreign banks, dealers and
institutions set forth in paragraph 9 below.
3. You, by becoming a member of the Selected Dealers, agree (a) upon
effectiveness of the Registration Statement and your receipt of the Prospectus,
to take up and pay for the number of Units allotted and confirmed to you, (b)
not to use any of the Units to reduce or cover any short position you may have
and (c) to make available a copy of the Prospectus to all persons who on your
behalf will solicit orders for the Units prior to the making of such
solicitations by such persons. You are not authorized to give any information or
to make any representations other than those contained in the Prospectus or any
supplements or amendments thereto.
4. We may be authorized to over-allot in arranging sales to Selected
Dealers, to purchase and sell Units, and to stabilize or maintain the market
price of the Units. You agree to advise us at any time and from time to time
upon our request, prior to the termination of this Agreement, of the number of
Units purchased by you remaining unsold by you, and you will, upon our request
at any such time, sell to us, for our account or the account of one or more of
the Underwriters, such amount of such unsold Units as we may designate, at the
public offering price thereof less an amount to be determined by us not in
excess of the concession to dealers. In the event that prior to the later of (i)
the termination of this Agreement or (ii) the covering by us of any short
position created by us in connection with the offering of the Units, for our
account or the account of one or more Underwriters, we purchase or contract to
purchase for our account or the account of any of the Underwriters, in the open
market or otherwise, any Units theretofore delivered to you, we reserve the
right to withhold the above-mentioned concession to dealers on such Units if
sold to you at the public offering price, or if such concession has
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been allowed to you through your purchase at a net price, you agree to repay
such concession upon our demand, plus, in each case, any taxes on redelivery,
commissions, original issue discount, accrued interest and dividends paid in
connection with such purchase or contract to purchase.
5. As contemplated by Rule 15c2-8 under the Securities Exchange Act of
1934, as amended, we agree to mail a copy of the Prospectus to any person making
a written request therefor during the period referred to in the rules and
regulations adopted under such Act, the mailing to be made to the address given
in the request. You confirm that you have delivered all preliminary prospectuses
and revised preliminary prospectuses, if any, required to be delivered under the
provisions of Rule 15c2-8 and agree to deliver all copies of the Prospectus
required to be delivered thereunder. We have heretofore delivered to you such
preliminary prospectuses as have been required by you, receipt of which is
hereby acknowledged, and will deliver such further prospectuses as may be
requested by you. You agree to keep an accurate record of your distribution
(including dates, number of copies and persons to whom sent) of copies of the
Prospectus or any preliminary prospectus (or any amendment or supplement to any
thereof), and promptly upon request by us to bring all subsequent changes to the
attention of anyone to whom such material shall have been furnished. You agree
to furnish to persons who receive a confirmation of sale a copy of the
Prospectus filed pursuant to Rule 424(b) or Rule 424(c) under the Securities
Act.
6. You agree that until termination of this Agreement you will not
make purchases or sales of the Units except (a) pursuant to this Agreement, (b)
pursuant to authorization received from us, or (c) in the ordinary course of
business as broker or agent for a customer pursuant to any unsolicited order.
7. Additional copies of the Prospectus and any supplements or
amendments thereto shall be supplied in reasonable quantity upon request.
8. The Units are offered by us for delivery when, as and if sold to,
and accepted by, us and subject to the terms herein and in the Prospectus or any
supplements or amendments thereto, to our right to vary the concessions and
terms of offering after their release for public sale, to approval of counsel as
to legal matters and to withdrawal, cancellation or modification of the offer
without notice.
9. Upon written application to us, you shall be informed as to the
jurisdictions under the securities or blue sky laws of which we believe the
Units are eligible for sale, but we assume no responsibility as to such
eligibility or the right of any member of the Selected Dealers to sell any of
the Units in any jurisdiction. We have caused to be filed a Further State Notice
relating to such of the Units to be offered to the public in New York in the
form required by, and pursuant to, the provisions of Article 23A of the General
Business Law of the State of New York. Upon the completion of the public
offering contemplated herein, each member of the Selected Dealers agrees to
promptly furnish to us, upon our request, territorial distribution reports
setting forth each jurisdiction in which sales of the Units were made by such
member, the number of Units sold in such jurisdiction, and any further
information as we may request, in order to permit us to file on a timely basis
any report that we as the Underwriters of the offering or manager of the
Selected Dealers may be required to file pursuant to the securities or blue sky
laws of any jurisdiction.
10. You, by becoming a member of the Selected Dealers, represent that
you are actually engaged in the investment banking or securities business and
that you are (a) a member in good standing of the NASD and will comply with all
applicable rules of the NASD, including but not limited to NASD Conduct Rule
2740, or (b) a foreign dealer or institution that is not eligible for membership
in the NASD and that has agreed (i) not to sell Units within the United States
of America, its territories or possessions or to persons who are citizens
thereof or residents therein; (ii) that any and all sales shall be in compliance
with Rule 2790 of the NASD's Conduct Rules; (iii) to comply, as though it were a
member of
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the NASD, with Rules 2730, 2740 and 2750 of the NASD's Conduct Rules, and to
comply with Rule 2420 thereof as that Rule applies to a non-member broker or
dealer in a foreign country. You represent that neither you nor any of your
directors, officers, partners, or persons associated with you (as defined in the
By-Laws of the NASD) nor, to your knowledge, any "related person" (as defined by
the NASD in its Interpretation Relating to Review of Corporate Financing, which
term includes counsel, financial consultants and advisors, finders, members of
the selling or distribution groups, and any other persons associated with or
related to any of the foregoing) or any other broker-dealer has had, within the
last twelve months, any dealings with the Company or any controlling
shareholders 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 Relating to Review of Corporate Financing.
11. You are not authorized to act as agent for any Underwriter or the
Company in offering the Units to the public otherwise. Neither we not any
Underwriter shall be under any obligation to you except as specifically set
forth herein. Nothing herein shall constitute any members of the Selected
Dealers partners with us or with each other, but you agree, notwithstanding any
prior settlement of accounts or termination of this Agreement, to bear your
proper proportion of any tax or other liability based upon the claim that the
Selected Dealers constitute a partnership, association, unincorporated business
or other separate entity and a like share of any expenses of resisting any such
claim.
12. Ladenburg Xxxxxxxx & Co. Inc. shall be the Managing Underwriter of
the offering and manager of the Selected Dealers and shall have full authority
to take such action as we may deem advisable in respect of all matters
pertaining to the offering or the Selected Dealers or any members of them.
Except as expressly stated herein, or as may arise under the Act, we shall be
under no liability to any member of the Selected Dealers as such for, or in
respect of (i) the validity or value of the Units (ii) the form of, or the
statements contained in, the Prospectus, the Registration Statement of which the
Prospectus forms a part, any supplements or amendments to the Prospectus or such
Registration Statement, any preliminary prospectus, any instruments executed by,
or obtained or any supplemental sales data or other letters from, the Company,
or others, (iii) the form or validity of the Underwriting Agreement or this
Agreement, (iv) the eligibility of any of the Units for sale under the laws of
any jurisdiction, (v) the delivery of the Units, (vi) the performance by the
Company, or others of any agreement on its or their part, or (vii) any matter in
connection with any of the foregoing, except our own want of good faith.
13. If for federal income tax purposes the Selected Dealers, among
themselves or with the Underwriters, should be deemed to constitute a
partnership, then we elect to be excluded from the application of Subchapter K,
Chapter 1, Subtitle A of the Internal Revenue Code of 1986, as amended, and we
agree not to take any position inconsistent with such selection. We authorize
you, in your discretion, to execute and file on our behalf such evidence of such
election as may be required by the Internal Revenue Service.
14. All communications from you shall be addressed to Ladenburg
Xxxxxxxx & Co. Inc. at 000 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Xxxxx X. Xxxx. Any notice from us to you shall be deemed to
have been fully authorized by the Underwriters and to have been duly given if
mailed, telegraphed or sent by confirmed facsimile transmittal to you at the
address to which this letter is mailed. This Agreement shall be construed in
accordance with the laws of the State of New York without giving effect to
conflict of laws. Time is of the essence in this Agreement.
If you desire to become a member of the Selected Dealers, please
advise us to that effect immediately by facsimile transmission and sign and
return to us the enclosed counterpart of this letter.
Very truly yours,
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LADENBURG XXXXXXXX & CO. INC.
By:
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We accept membership in the Selected Dealers on the terms specified
above.
Dated: ___________ __, 2006
(Selected Dealer)
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By:
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Name:
Title:
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