CHOICETEL COMMUNICATIONS, INC.
800,000 UNITS(1)
CONSISTING OF 800,000 SHARES OF COMMON STOCK AND
800,000 REDEEMABLE COMMON STOCK PURCHASE WARRANTS
SELECTED DEALER AGREEMENT
__________, 1997
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Ladies and Gentlemen:
1. We are the Underwriter named in the Prospectus relating to the above
securities (the "Underwriter"). As the Underwriter, we have agreed, on certain
terms and subject to certain conditions, to purchase from ChoiceTel
Communications, Inc., a Minnesota corporation (the "Company"), an aggregate of
800,000 Units (the "Units"), each Unit consisting of one share of the Company's
common stock, $0.01 par value per share ("Common Stock"), and one redeemable
common stock purchase warrant of the Company, and, for purposes of covering
over-allotments in connection with the sale of the Firm Units, up to 120,000
additional Units (the "Option Units"), all as set forth in the Prospectus. The
Firm Units and any Option Units purchased by us are referred to herein as the
"Units." The Units and the shares of Common Stock and the common stock purchase
warrants comprising the Units are collectively referred to herein as the
"Securities." The Securities and the terms under which they are to be offered
for sale are more particularly described in the Prospectus.
2. As the Underwriter, we are offering to you and certain other
securities dealers ("Selected Dealers") the right as set forth herein to
purchase, as principals, from us, certain of the Units subject to their receipt
and acceptance by us and upon the terms and subject to the conditions set forth
herein and in the Prospectus, at the Price to Public (as set forth on the cover
page of the Prospectus) for such Units, less a selling concession of $____ per
Unit, payable as herein provided. Each Selected Dealer shall be a member of the
National Association of Securities Dealers, Inc. (the "NASD") who has agreed to
comply with the provisions of Rule 2740 of the NASD's Conduct Rules (or a
foreign dealer who is not eligible for membership in the NASD but who agrees to
conform to the NASD's Conduct Rules and agrees in writing to comply with the
NASD's Interpretation on "Free-Riding and Withholding" (IM-2110-1) and with the
provisions of Rules 2730, 2740, 2750 and 2420 (as such Rule applies to foreign
nonmembers) of the NASD's Conduct Rules), acting as principal or as buyer's
agent.
3. All orders are subject to confirmation and allotment by us. We
reserve the right to reject any order in whole or in part, or to allot less than
the amount applied for, and to close the subscription books at any time without
notice. The number of Units allotted to you will be confirmed, subject to the
terms and conditions of this Agreement.
4. Please confirm your agreement to purchase Units on the terms and
subject to the conditions hereof by completing and signing the form for that
purpose on the enclosed counterpart of this Agreement and returning such
counterpart to us, even though you may have previously advised us thereof by
telephone or telegraph. Our signatures herein may be by facsimile.
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(1) Plus an option to purchase up to 120,000 additional Units to cover over-
allotments.
5. Any Securities purchased by you under the terms of this Agreement may
immediately be re-offered to the public in accordance with the terms of the
offering thereof set forth herein and in the Prospectus, subject to the
securities or Blue Sky laws of the various states or other jurisdictions.
Neither you nor any other person is or has been authorized to give any
information or to make any representation in connection with the sale of the
Securities other than as contained in the Prospectus. You will not bid for,
purchase or attempt to induce others to purchase or sell, directly or
indirectly, any Securities except as contemplated by this Agreement.
6. You agree, upon our request, to deliver to us payment in the form and
at the time, date and place specified in such request, for the Units to be
purchased by you under this Agreement. Units accepted or allotted hereunder
shall be paid for in full at the Price to Public less the above-mentioned
selling concession, by certified or official bank check payable in Minneapolis
clearing house funds or the equivalent thereof, to our order against delivery of
certificates for the Securities. If you are a member of, or clear through a
member of, The Depository Trust Company ("DTC"), we may, in our discretion,
deliver your Securities through the facilities of DTC. If you are not a member
of DTC, such delivery shall be made through a correspondent who is such a
member, if you shall have furnished instructions to us naming such
correspondent, unless you are otherwise notified by us in our discretion.
7. You agree to pay us on demand an amount equal to the above-mentioned
selling concession as to Units purchased by you hereunder which, prior to the
termination of this Agreement, we may purchase or contract to purchase and, in
addition, we may charge you with any broker's commission and transfer tax paid
in connection with such purchase or contract to purchase. Certificates for
Securities delivered on such repurchases need not be the identical certificates
originally purchased.
8. For the purpose of stabilizing the market in the Units, we have been
authorized to make purchases and sales of the Securities, in the open market or
otherwise, and, in arranging for sales, to over-allot.
9. You agree to advise us from time to time, upon request, of the
aggregate number of Units purchased by you hereunder and remaining unsold at the
time of such request, and, if in our opinion any such Units shall be needed to
make delivery of the Units sold or over-allotted, you will, forthwith upon our
request, grant to us the right, exercisable promptly after receipt of notice
from you that such right has been granted, to purchase, at the Price to Public
less the above-mentioned selling concession or such part thereof as we shall
determine, such aggregate number of Units owned by you as shall have been
specified in our request.
10. 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
request for the purposes contemplated by the Securities Act of 1933, as amended
("1933 Act"), or the Securities Exchange Act of 1934, as amended ("1934 Act"),
or the rules and regulations thereunder.
11. No Selected Dealer is authorized to act as our agent, or otherwise to
act on our behalf, in offering or selling the Units to the public or otherwise
or to furnish any information or make any representation except as contained in
the Prospectus. Nothing will constitute the Selected Dealers an association or
other separate entity or partners with us, or with each other, but you will be
responsible for your share of any liability or expense based on any claim to the
contrary.
12. We shall not be under any liability for or in respect of the value,
validity or form of the Securities, or the delivery of the certificates for the
Securities, or the performance by anyone of any agreement on its part, or the
qualification of the Securities for offer or sale under the laws of any
jurisdiction, or for or in respect of any other matter relating to this
Agreement, except for lack of good faith and for obligations expressly assumed
by us in this Agreement, and no obligation on our part shall be implied
herefrom. The foregoing provisions shall not be deemed a waiver of any
liability imposed under the 1933 Act.
13. You, by your confirmation below, represent that neither you nor any of
your directors, officers, partners, nor any "person associated with" (as defined
in the By-Laws of the NASD) you, nor, to your knowledge,
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any "related person" (as defined in Rule 2710 of the NASD's Conduct Rules (the
"Corporate Financing Rule")) has participated or intends to participate in any
transaction or dealing as to which documents or information is required to be
filed with the NASD pursuant to the Corporate Financing Rule, and as to which
such documents or information have not been so filed in a timely manner. By
such confirmation you also represent that either (a) you are a member in good
standing of the NASD who agrees to comply with all applicable rules of the NASD
including, but not limited to, Rule 2740 of the NASD's Conduct Rules, or (b) you
are a foreign dealer not eligible for membership in the NASD and you agree not
to make any sales within the United States, its territories, or its possessions,
or to persons who are citizens thereof or residents therein, and in making other
sales of the Units, you agree to comply with the NASD's Interpretation on
"Free-Riding and Withholding" (IM-2110-1) and to comply, as if you were an NASD
member, with the provisions of Rules 2730 and 2750 of the NASD's Conduct Rules
and with Rule 2420 of such Conduct Rules as it applies to a nonmember foreign
broker/dealer in a foreign country.
14. On becoming a Selected Dealer, and in offering and selling the Units,
you agree to comply with all the applicable requirements of the 1933 Act and the
1934 Act including, but not limited to, Regulation M under the 1934 Act. You
confirm that you are familiar with Rule 15c2-8 under the 1934 Act relating to
the distribution of preliminary and final prospectuses for securities of an
issuer (whether or not the issuer is subject to the reporting requirements of
Section 13 or 15(d) of the 0000 Xxx) and confirm that you have complied and will
comply therewith.
15. No expenses shall be charged to Selected Dealers. A single transfer
tax, if payable, upon the sale of the Units to you will be paid when such Units
are delivered to you. You shall, however, pay any transfer tax on sales of
Units by you and you shall pay our proportionate share of any transfer tax
(other than the single transfer tax described above) in the event that any such
tax shall from time to time be assessed against you and other Selected Dealers
as a group or otherwise.
16. The provisions of this Agreement will terminate when we shall have
determined that the public offering of the Units has been completed and upon
notice to you by telegraph or telecopy of such termination, but if not
theretofore terminated, this Agreement will terminate at 5:00 p.m., Minneapolis
time, thirty (30) days after the initial public offering of the Units; provided,
however, that we shall have the right to extend this Agreement for a further
period or periods, not exceeding thirty (30) calendar days in the aggregate,
upon notice to you by telegraph or telecopy.
17. Notices to us should be addressed to us, as the Underwriter, at our
offices at 2820 IDS Center, 00 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxxx, Xxxxxxxxx
00000; Attention: Syndicate Department. Notices to you shall be deemed to have
been duly given if telegraphed, telecopied or mailed to you at the address to
which this Agreement is sent.
Very truly yours,
EQUITY SECURITIES INVESTMENTS, INC.
By
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Authorized Officer
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EQUITY SECURITIES INVESTMENTS, INC.
2820 IDS Center
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
RE: CHOICETEL COMMUNICATIONS, INC.
Ladies and Gentlemen:
We hereby confirm our agreement to purchase ___________ Units, each Unit
consisting of one share of common stock and one redeemable common stock purchase
warrant, of ChoiceTel Communications, Inc., subject to your acceptance or
rejection in whole or in part in the case of a subscription in excess of any
reservation and subject to the other terms and conditions stated in the Selected
Dealer Agreement and in your telegram or telecopy to us referred to therein.
We hereby acknowledge receipt of the Prospectus referred to in the first
paragraph thereof relating to said Units. We further confirm that in purchasing
said Units we have relied upon the Prospectus and upon no other statement
whatsoever, whether written or oral.
We hereby confirm that we are (a) a member in good standing of the NASD who
agrees to comply with all applicable rules of the NASD including, but not
limited to, Rule 2740 of the NASD's Conduct Rules, or (b) a foreign dealer not
eligible for membership in the NASD who agrees not to make any sales within the
United States, its territories, or its possessions, or to persons who are
citizens thereof or residents therein, and in making other sales of the Units,
who hereby agrees to comply with Rule 2740 of the NASD's Conduct Rules and the
NASD's Interpretation on "Free-Riding and Withholding" (IM-2110-1) and to
comply, as if we were an NASD member, with the provisions of Rules 2730 and 2750
of the NASD's Conduct Rules and with Rule 2420 of such Conduct Rules as it
applies to a nonmember foreign broker/dealer in a foreign country.
Corporate or firm name of Dealer:
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By:
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Signature of Authorized Representative
Its:
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Title of person signing
Address:
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Dated: _______, 1997
