1
EXHIBIT 1.2
SELECTED DEALERS AGREEMENT
PUBLIC OFFERING OF
1,500,000 SHARES
OFFERING PRICE: $ PER SHARE
PENTASTAR COMMUNICATIONS, INC.
OCTOBER ___, 1999
Xxxxxxxxx Securities, Inc., on behalf of itself and other underwriters
(the "Underwriters") for which it is the representative (the "Representative"),
has severally agreed with PentaStar Communications, Inc., a Delaware corporation
(the "Company"), to purchase 1,500,000 Shares (the "Firm Shares") and the
Representative has been granted the right to purchase up to an additional
225,000 Shares (the "Additional Shares") at its option for the sole purpose of
covering over-allotments in the sale of the Firm Shares (the Firm Shares and
Additional Shares being collectively referred to as the "Shares" or a
"Security"). The Underwriters are offering the Shares to the public at an
offering price of $ per Share. Certain other capitalized terms used herein are
defined in the Underwriting Agreement and are used herein as therein defined.
The Representative is offering the Shares to certain selected dealers
(the "Selected Dealers"), when, as and if accepted by the Representative and
subject to withdrawal, cancellation or modification of the offer without notice
and further subject to the terms of (i) the Company's current Prospectus, (ii)
the Underwriting Agreement, (iii) this Agreement, and (iv) the Representative's
instructions which may be forwarded to the Selected Dealer from time to time. A
copy of the Underwriting Agreement will be delivered to you forthwith for
inspection or copying or both, upon your request therefor. This invitation is
made by the Representative only if the Shares may be offered lawfully to dealers
in your state.
2
The further terms and conditions of this invitation are as follows:
1. Acceptance of Orders. Orders received by the Representative from the
Selected Dealer will be accepted only at the price, in the amounts and on the
terms which are set forth in the Company's current Prospectus, subject to
allotment in the Representative's uncontrolled discretion. The Representative
reserves the right to reject any orders, in whole or in part.
2. Selling Concession. As a Selected Dealer, you will be allowed on all
Shares purchased by you, which the Underwriters have not repurchased or
contracted to repurchase prior to termination of this Agreement at or below the
public offering price, a concession of ___% of the full 9% Underwriting
discount, i.e., $___ per Security as shown in the Company's current Prospectus.
No selling concession will be allowed to any domestic broker-dealer who is not a
member of the National Association of Securities Dealers, Inc. (the
"Association"), or to any foreign broker-dealer eligible for membership in the
Association who is not a member of the Association. Payment of such selling
concession to you will be made only as provided in Section 4 hereof. After the
Shares are released for sale to the public, the Representative is authorized to,
and may, change the public offering price and the selling concession.
3. Reoffer of Shares. Shares purchased by you are to be bona fide
reoffered by you in conformity with this Agreement and the terms of offering set
forth in the Prospectus. You agree that you will not bid for, purchase, attempt
to induce others to purchase, or sell, directly or indirectly, any Shares except
as contemplated by this Agreement and except as a broker pursuant to unsolicited
orders. You confirm that you have complied and agree that you will at all times
comply with the provisions of Regulation M of the Securities Exchange Act of
1934, as amended (the "Exchange Act") applicable to this offering. In respect of
Shares sold by you and thereafter purchased by the Representative at or below
the public offering price prior to the termination of this Agreement as
described hereinafter (or such longer period as may be necessary to cover any
short position with respect to the offering), you agree at the Representative's
option either to repurchase the Shares at a price equal to the cost thereof to
the Representative, including commissions and transfer taxes on redelivery, or
to repay the Representative such part of your Selected Dealers' concessions on
such Shares as the Representative designates.
-2-
3
4. Payment for Shares. Payment for the Shares purchased by you is to be
made at the net Selected Dealers' price of $_____ per Security, at the offices
of Xxxxxxxxx Securities, Inc., Xxxxx 000, 0000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx
00000, Attention: Syndicate Department, at such time and on such date as the
Representative may designate, by certified or official bank check, payable in
clearing house funds to the order of the Representative, against delivery of
certificates for the Shares so purchased. If such payment is not made at such
time and on such date, you agree to pay the Representative interest on such
funds at the current interest rate. The Representative may in its discretion
deliver the Shares purchased by you through the facilities of the Depository
Trust Company or, if you are not a member, through your ordinary correspondent
who is a member unless you promptly give the Representative written instructions
otherwise.
5. Offering Representations. The Representative has been informed that
a Registration Statement in respect of the Shares is expected to become
effective under the Securities Act of 1933, as amended (the "Act"). You are not
authorized to give any information or to make any representations other than
those contained in the Prospectus or to act as agent for the Company or for the
undersigned when offering the Shares to the public or otherwise.
6. Blue Sky. Neither the Representative nor the Underwriters assume any
responsibility or obligations as to your right to sell the Shares in any
jurisdiction, notwithstanding any information furnished in that connection. The
Selected Dealer shall report in writing to the Representative the number of
Shares which have been sold by it in each state and the number of transactions
made in each such state. This state report shall be submitted to the
Representative as soon as possible after completion of billing, but in any event
not more than three days after the closing.
7. Dealer Undertakings. By accepting this Agreement, the Selected
Dealer in offering and selling the Shares in the Public Offering (i)
acknowledges its understanding of (a) the Conduct Rules (the "Rules") of the
Association and the interpretations of such Rules promulgated by the Board of
Governors of the Association (the "Interpretations") including, but not limited
to the Rule and Interpretation with respect to "Free-Riding and Withholding"
defined therein, (b) Rule 174 of
-3-
4
the rules and regulations promulgated under the Act, (c) Regulation M
promulgated under the Exchange Act, (d) Release No. 3907 under the Act, (e)
Release No. 4150 under the Act, and (f) Sections 2730, 2740, 2420 and 2750 of
the Rules and Interpretations thereunder, and (ii) represents, warrants,
covenants and agrees that it shall comply with all applicable requirements of
the Act and the Exchange Act in addition to the specific provisions cited in
subparagraph (i) above and that it shall not violate, directly or indirectly,
any provision of applicable law in connection with its participation in the
Public Offering of the Shares.
8. Conditions of Public Offering. All sales shall be subject to
delivery by the Company of certificates evidencing the Shares against payment
therefor.
9. Failure of Order. If an order is rejected or if a payment is
received which proves insufficient or worthless, any compensation paid to the
Selected Dealer shall be returned by (i) restoration by the Representative to
the Selected Dealer of the latter's remittance or (ii) a charge against the
account of the Selected Dealer with the Representative, as the latter may elect
without notice being given of such election.
10. Additional Representations, Covenants and Warranties of Selected
Dealer. By accepting this Agreement, the Selected Dealer represents that it is
registered as a broker-dealer under the Exchange Act; is qualified to act as a
dealer in the states or the jurisdictions in which it shall offer the Shares; is
a member in good standing of the Association; and shall maintain such
registrations, qualifications and membership in full force and effect and in
good standing throughout the term of this Agreement. If the Selected Dealer is
not a member of the Association, it represents that it is a foreign dealer not
registered under the Exchange Act and agrees to make no sales within the United
States, its territories or its possessions or to persons who are citizens
thereof or residents therein, and in making any sales to comply with the
Association's Rules and Interpretations with respect to Free-Riding and
Withholding. Further, the Selected Dealer agrees to comply with all applicable
federal laws including, but not limited to, the Act and Exchange Act and the
rules and regulations of the Commission thereunder; the laws of the states or
other jurisdictions in which Shares may be offered or sold by it; and the
Constitution, Bylaws, and rules of the
-4-
5
Association. Further, the Selected Dealer agrees that it will not offer or sell
the Shares in any state or jurisdiction except those in which the Shares have
been qualified or qualification is not required. The Selected Dealer
acknowledges its understanding that it shall not be entitled to any compensation
hereunder for any period during which it has been suspended or expelled from
membership in the Association.
11. Employees and other Agents of the Selected Dealer. By accepting
this Agreement, the Selected Dealer assumes full responsibility for thorough and
proper training of its employees and other agents and representatives concerning
the selling methods to be used in connection with the Public Offering of the
Shares, giving special emphasis to the principles of full and fair disclosure to
prospective investors and the prohibitions against "Free-Riding and Withholding"
as set forth in Section 2110 of the Rules and the Interpretations thereunder.
12. Indemnification by the Company. The Company has agreed in Section 8
of the Underwriting Agreement to indemnify and hold harmless the Underwriters,
the Representative and each person if any, who controls the Representative or
any of the Underwriters within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act against any and all loss, liability, claim, damage,
and expense whatsoever (which shall include, for all purposes of Section 8 of
the Underwriting Agreement, but not be limited to, attorneys' fees and any and
all expense whatsoever incurred in investigating, preparing, or defending
against any litigation, commenced or threatened, or any claim whatsoever and any
and all amounts paid in settlement of any claim or litigation) as and when
incurred arising out of, based upon, or in connection with (i) any untrue
statement or alleged untrue statement of a material fact contained (A) in any
Preliminary Prospectus, the Registration Statement, or the Prospectus (as from
time to time amended and supplemented), or any amendment or supplement thereto,
or (B) in any application or other document or communication (in the
Underwriting Agreement collectively called an "application") in any jurisdiction
in order to qualify the Shares under the "blue sky" or securities laws thereof
or filed with the Commission or any securities exchange; or any omission or
alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or (ii) any breach of
any
-5-
6
representation, warranty, covenant, or agreement of the Company contained in the
Underwriting Agreement. The Representative has agreed to give the Company an
opportunity and the right to participate in the defense or preparation of the
defense of any action brought against the Representative, any Underwriter or any
controlling person thereof to enforce any such loss, claim, demand, liability or
expense. The agreement of the Company under this indemnity is conditioned upon
notice of any such action having been promptly given by the indemnified party to
the Company. Failure to notify the Company as provided in the Underwriting
Agreement shall not relieve the Company of its liability which it may have to
the Representative, the Underwriters, or any controlling person thereof other
than pursuant to Section 8(a) of the Underwriting Agreement. This agreement is
subject in all respects, especially insofar as the foregoing description of the
indemnification provisions set forth in the Underwriting Agreement is concerned,
to the terms and provisions of the Underwriting Agreement, a copy of which will
be made available for inspection or copying or both to the Selected Dealer upon
written request to the Representative therefor. The Selected Dealer acknowledges
and confirms that, by signing a counterpart of this Agreement, it shall be
deemed an agent of the Underwriters or a "Representative" for all purposes of
Section 8 of the Underwriting Agreement, as expressly set forth therein.
13. Indemnification by the Selected Dealer. The Selected Dealer shall
indemnify and hold harmless the Company, each director of the Company, each
officer of the Company who shall have signed the Registration Statement, each
other person, if any, who controls the Company within the meaning of Section 15
of the Act or Section 20(a) of the Exchange Act, to the same extent as the
indemnity from the Company to the Underwriters in Section 8(a) of the
Underwriting Agreement, but only with respect to statements or omissions, if
any, made in any Preliminary Prospectus, the Regis tration Statement, or the
Prospectus (as from time to time amended and supplemented), or any amendment or
supplement thereto, or in any application, in reliance upon and in conformity
with information furnished to the Representative or the Company with respect to
the Selected Dealer by or on behalf of the Selected Dealer expressly for
inclusion in any Preliminary Prospectus, the Registration Statement, or the
Prospectus, or any amendment or
-6-
7
supplement thereto, or in any application, as the case may be, or are based upon
alleged misrepresentations or omissions to state material facts in connection
with statements made by the Selected Dealer or the Selected Dealer's employees
or other agents to the Company or the Representative orally or by any other
means; provided, however, that the obligation of the Selected Dealer to provide
indemnity hereunder shall be limited to the amount which represents the product
of the number of Firm Shares and Additional Shares sold and the initial public
offering price per Security set forth on the cover page of the Prospectus. If
any action shall be brought against the Company or any other person so
indemnified in respect of which indemnity may be sought against the Selected
Dealer pursuant to this provision, the Selected Dealer shall have the rights and
duties given to the Company in the Underwriting Agreement, and the Company and
each other person so indemnified shall have the rights and duties given to the
indemnified parties, by the provisions of Section 8(a) of the Underwriting
Agreement; and the Selected Dealer shall reimburse the Company and the
Representative for any legal or other expenses reasonably incurred by them in
connection with the investigation of or the defense of any such action or claim.
The Representative shall, after receiving the first summons or other legal
process disclosing the nature of the action being brought against it or the
Company in any proceeding with respect to which indemnity may be sought by the
Company or the Representative hereunder, notify promptly the Selected Dealer in
writing of the commencement thereof; and the Selected Dealer shall be entitled
to participate in (and, to the extent the Selected Dealer shall wish, to direct)
the defense thereof at the expense of the Selected Dealer, but such defense
shall be conducted by counsel satisfactory to the Company and the
Representative. If the Selected Dealer shall fail to provide such defense, the
Company or the Representative may defend such action at the cost and expense of
the Selected Dealer. The Selected Dealer's obligation under this Section 13
shall survive any termination of this Agreement, the Underwriting Agreement and
the delivery of and payment for the Shares under the Underwriting Agreement, and
shall remain in full force and effect regardless of the investigation made by or
on behalf of any Representative within the meaning of Section 15 of the Act.
-7-
8
14. No Authority to Act as Partner or Agent. Nothing herein shall
constitute the Selected Dealers as an association or other separate entity or
partners with or agents of the Representative or with each other, but each
Selected Dealer shall be responsible for its pro rata share of any liability or
expense based upon any claims to the contrary. The Representative shall not be
under any liability for or in respect of the value, validity or form of the
Shares, or the delivery of certificates for the Shares or the performance by any
person of any agreement on its part, or the qualification of the Shares for sale
under the laws of any jurisdiction, or for or in respect of any matter in
connection with this Agreement, except for lack of good faith and for
obligations expressly assumed by the Representative in this Agreement.
15. Expenses. No expenses incurred in connection with offers and sales
of the Shares under the Public Offering will be chargeable to the Selected
Dealers. A single transfer tax, if any, on the sale of Shares by the Selected
Dealer to its customers will be paid when such Shares are delivered to the
Selected Dealer for delivery to its customers. Notwithstanding the foregoing,
the Selected Dealer shall pay its proportionate share of any transfer tax or any
other tax (other than the single transfer tax described above) if any such tax
shall at any time be assessed against the Representative and other Selected
Dealers.
16. Notices. All notices, demands or requests required or authorized
hereunder shall be deemed given sufficiently if in writing and sent by
registered or certified mail, return receipt requested and postage prepaid, or
by tested telex, telegram, cable or facsimile to, in the case of the
Representative, the address set forth above directed to the attention of the
President of the Representative, and in the case of the Selected Dealer, to the
address provided below by the Selected Dealer, directed to the attention of the
President.
17. Termination. This Agreement may be terminated by the Representative
with or without cause upon written notice to Selected Dealer to such effect; and
such notice having been given, this Agreement shall terminate at the time
specified therein. Additionally, this Agreement shall terminate upon the earlier
of the termination of the Underwriting Agreement, or at the close of business
thirty days after the Shares are released by the Representative for sale to the
public.
-8-
9
18. General Provisions. This Agreement shall be construed and enforced
in accordance with and governed by the laws of the State of Colorado. This
Agreement embodies the entire agreement and understanding between the
Representative and the Selected Dealer and supersedes all prior agreements and
understandings related to the subject matter hereof, and this Agreement may not
be modified or amended or any term or provision hereof waived or discharged
except in writing signed by the party against whom such amendment, modification,
waiver or discharge is sought to be enforced. All the terms of this Agreement,
whether so expressed or not, shall be binding upon, and shall inure to the
benefit of, the respective successors, legal representatives and assigns of the
parties hereto; provided, however, that none of the parties hereto can assign
this Agreement or any of its rights hereunder without the prior written consent
of the other party hereto, and any such attempted assignment or transfer without
the other party's prior written consent shall be void and without force or
effect. The headings of this Agreement are for purposes of reference only and
shall not limit or otherwise affect the meaning hereof. This Agreement may be
executed in any number of counterparts, each of which shall be deemed an
original, but all of which taken together shall constitute one and the same
instrument.
If the foregoing correctly sets forth the terms and conditions of your
agreement to purchase the Shares allotted to you, please indicate your
acceptance thereof by signing and returning to Xxxxxxxxx Securities, Inc. the
duplicate copy of this Agreement, whereupon this letter and your acceptance
shall become and evidence a binding contract between you and the Representative.
XXXXXXXXX SECURITIES, INC.
By:
--------------------------------
Title:
-----------------------------
-9-
10
Gentlemen:
The undersigned confirms its agreement to purchase __________ Shares of
PentaStar Communications, Inc., upon the terms and subject to the conditions of
the foregoing Selected Dealers Agreement, and further agrees that any agreement
by it to purchase Additional Shares during the life of such Agreement will be
upon the same terms and subject to the same conditions. The undersigned
acknowledges receipt of the Prospectus relating to the public offering of the
Shares and confirms that in agreeing to purchase such Shares it has relied on
such Prospectus and not on any other statement whatsoever written or oral.
Firm Name:
--------------------------------------
(Print or Type name of Firm)
By:
--------------------------------------------
(Authorized Agent)
------------------------------------------------
(Print or Type Name and Title of
Authorized Agent)
Address:
---------------------------------------
------------------------------------------------
Telephone No.
----------------------------------
IRS Employer Identification No.:
----------------
Dated: , 1999
--------------------
-10-
