SUNRISE SECURITIES CORP. 25TH FLOOR NEW YORK, NEW YORK 10022 SELECTED DEALERS AGREEMENT
Exhibit
1.2
SUNRISE
SECURITIES CORP.
000
XXXXXXXXX XXXXXX
00XX
XXXXX
XXX
XXXX, XXX XXXX 00000
Dear
Sirs:
1.
Registration under the Securities Act of 1933, as amended (“Act”), of the
7,000,000 Units* of
Fortress America Acquisition Corporation (“Company”), as more fully described in
the Preliminary Prospectus, dated
,
2005, 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.
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Authorized
Public Offering Price: |
$6.00
per Unit. | |
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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. | |
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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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Delivery
and Payment: |
Delivery
of the Units shall be made on or about
,
2005 or such later date as we may advise on not less than one day’s notice
to you, at the office of Sunrise Securities Corp., 000 Xxxxxxxxx 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 or a certified or official bank check in New York
Clearing House Funds payable to the order of Sunrise Securities
Corp. | |
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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. |
* Plus the
over-allotment option available to the Underwriters to purchase up to an
additional 1,050,000 Units.
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. 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.
5. 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.
6.
Additional copies of the Prospectus and any supplements or amendments thereto
shall be supplied in reasonable quantity upon request.
7. 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.
8. 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
acknowledge that you have advised us that sales of the Company’s securities
cannot be made from the state of New Jersey. We represent to you that all
sales by us of the Company’s securities will be made by our offices outside the
state of New Jersey. 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.
9. 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 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 2110-01 of the NASD’s Conduct Rules; (iii) to comply, as though it were a
member of 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.
10.
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.
11.
Sunrise Securities Corp. 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.
12. 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.
13. All
communications from you shall be addressed to Sunrise Securities Corp., 000
Xxxxxxxxx Xxxxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxx Low, President. 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.
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Very
truly yours, | |||
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SUNRISE
SECURITIES CORP. | |||
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By: |
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Xxxxxx
Low | |||
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President | |||
We accept
membership in the Selected Dealers on the terms specified above.
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Dated:
,
2005 | |||||
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(Selected
Dealer) | |||||
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