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EXHIBIT 1.2
SELECTED DEALERS AGREEMENT
PUBLIC OFFERING OF
1,200,000 UNITS
OFFERING PRICE: $6.00 PER UNIT
MULTI-LINK TELECOMMUNICATIONS, INC.
________, 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 Multi-Link Telecommunications, Inc., a Colorado
corporation (the "Company"), to purchase 1,200,000 Units (the "Firm Units"),
each Unit consisting of one share of common stock (the "Common Stock") and one
redeemable warrant (the "Warrant") of the Company, and the Representative has
been granted the right to purchase up to an additional 180,000 Units and/or
warrants (the "Additional Securities") at its option for the sole purpose of
covering over-allotments in the sale of the Firm Units (the Firm Units and
Additional Securities being collectively referred to as the "Securities" or a
"Security"). The Underwriters are offering the Securities to the public at an
offering price of $6.00 per Unit. Certain other capitalized terms used herein
are defined in the Underwriting Agreement and are used herein as therein
defined.
The Representative is offering the Securities 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 Securities
may be offered lawfully to dealers in your state.
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.
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2. Selling Concession. As a Selected Dealer, you will be allowed on
all Securities 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 10% 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
Securities 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 Securities. Securities 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 Securities 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 Securities 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 Securities 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
Securities as the Representative designates.
4. Payment for Securities. Payment for the Securities purchased by you
is to be made at the net Selected Dealers' price of $_____ per Security, at the
offices of Xxxxxxxxx Securities, Inc., Suite 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 Securities so purchased. If such payment is
not made
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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 Securities 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 Securities 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 Securities 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 Securities in
any jurisdiction, notwithstanding any information furnished in that connection.
The Selected Dealer shall report in writing to the Representative the number of
Securities 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 Securities 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 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 Securities.
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8. Conditions of Public Offering. All sales shall be subject to
delivery by the Company of certificates evidencing the Securities 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
Securities; 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 Securities may be offered or sold by it; and the
Constitution, Bylaws, and rules of the Association. Further, the Selected
Dealer agrees that it will not offer or sell the Securities in any state or
jurisdiction except those in which the Securities 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 Securities,
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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 Securities 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 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
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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 Registration 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 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 Units
and Additional Securities 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
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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 Securities 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.
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
Securities, or the delivery of certificates for the Securities or the
performance by any person of any agreement on its part, or the qualification of
the Securities 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 Securities under the Public Offering will be chargeable to the Selected
Dealers. A single transfer tax, if any, on the sale of Securities by the
Selected Dealer to its customers will be paid when such Securities 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.
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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 Securities are released by the
Representative for sale to the public.
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 Securities allotted to you, please indicate your
acceptance thereof by signing and returning to Xxxxxxxxx Securities, Inc. the
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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:
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Title:
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Gentlemen:
The undersigned confirms its agreement to purchase __________ Units of
Multi-Link Telecommunications, 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 Securities 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 Securities and confirms that in agreeing to purchase such
Securities it has relied on such Prospectus and not on any other statement
whatsoever written or oral.
Firm Name:
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(Print or Type name of Firm)
By:
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(Authorized Agent)
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(Print or Type Name and Title of Authorized Agent)
Address:
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Telephone No.
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IRS Employer Identification No.:
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Dated: , 1999
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