EARLYBIRDCAPITAL, INC.
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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 6,000,000 Units* of Arpeggio Acquisition Corporation
("Company"), as more fully described in the Preliminary Prospectus, dated
___________, 2004, 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 900,000 Units.
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Delivery and Payment: Delivery of the Units shall be made on or about
________, 2004 or such later date as we may
advise on not less than one day's notice to
you, at the office of EarlyBirdCapital, Inc.,
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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 a certified or official bank
check in New York Clearing House Funds payable
to the order of EarlyBirdCapital, 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. 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.
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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 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. EarlyBirdCapital, 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.
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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
EarlyBirdCapital, Inc. at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Chairman. 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,
EARLYBIRDCAPITAL, INC.
By:_______________________________
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Managing Director
We accept membership in the Selected Dealers on the terms
specified above.
Dated: ___________ __, 2004
(Selected Dealer)
______________________________________
By:_______________________________________
Name:
Title:
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