EXHIBIT 10.15
TOWERSTREAM CORPORATION
55 Hammerlund Way
Middletown, Rhode Island 02842
January 8, 2007
Brian Corbman
Ardent Advisors, LLC
1637 Oakwood Drive Unit S222
Narberth, PA 19072
RE: Selling Agreement
Dear Mr. Corbman:
The undersigned, Towerstream Corporation, a Delaware Corporation
("Corporation"), by this letter confirms its agreement (the
"Agreement") with
Ardent Advisors, LLC, a Delaware limited liability company (the
"Broker-Dealer"), regarding the Broker-Dealer acting as a placement
agent in
connection with an offering of up to $15 million of units
consisting of shares
of common stock and warrants to purchase common stock (the "Units")
under the
terms set forth in the Confidential Private Placement Memorandum
dated December
21, 2006 and all exhibits and supplements thereto (the
"Memorandum") prepared by
Corporation and delivered to you for distribution to the offerees.
The Units are
to be offered on a "Best Efforts, Minimum- Maximum" basis with
respect to all
Units. The Units will be offered and sold in accordance with 17 CFR
203.506
("Rule 506"), promulgated under Regulation D of the Securities Act
1933, as
amended.
Upon execution and delivery of subscription documents (the
"Subscription
Documents"), which shall be in the form of the Subscription
Documents included
in the Memorandum, the subscribers for Units shall, upon acceptance
thereof by
Corporation (which acceptance shall be in Corporation's sole
discretion), become
Unit Holders pursuant to the terms set forth in the Memorandum. The
offering of
the Units shall begin when the Memorandum is first made available
to you by
Corporation and shall continue until the termination date, and
through the end
of any extension, unless the offering has been terminated as of any
earlier time
(the "Subscription Period").
SECTION 1. APPOINTMENT OF AGENT. On the basis of the
representations,
warranties and covenants contained in this Agreement, but subject
to the terms
and conditions herein set forth, you are hereby appointed as
non-exclusive
selling agent of Corporation for the Units offered under the
Memorandum. The
appointment shall continue until the earliest of (i) 120 days from
the date of
this Agreement, or (ii) the termination of the Subscription Period,
or (iii) the
sale of all of the Units, or (iv) the termination of the offering
of Units by
Corporation for any reason, whichever occurs first. Subject to the
performance
by Corporation of all of its obligations under this Agreement, and
to the
completeness and accuracy of all of its representations and
warranties contained
in this Agreement, you agree to use your best efforts during the
Subscription
Period to find subscribers for the Units.
SECTION 2. DEFINITIONS. Certain terms used herein are defined in
the
Memorandum and shall have the same meanings given therein.
Selling Agreement
Page 2
SECTION 3. REPRESENTATIONS, WARRANTIES AND COVENANTS OF
CORPORATION.
Corporation represents, warrants and covenants, to the best of its
knowledge,
that:
a. Corporation is a corporation duly and validly organized and in
good
standing under the laws of the State of Delaware and has full power
and
authority to conduct the business described in the Memorandum.
b. Corporation will deliver to you a reasonable number of copies of
the
Memorandum, and the information made available to each offeree
pursuant to
subsection 3(i) hereof shall be sufficient to comply with, and
conform to,
the requirements of Rule 506.
c. All action required to be taken by Corporation to offer and sell
the
Units to qualified subscribers has been or will be taken.
d. Upon payment of the subscription amount specified in the
Subscription
Documents, acceptance by Corporation of the subscriptions from
qualified
subscribers (which acceptance shall be at the sole discretion of
Corporation), and delivery by the subscribers for Units of such
additional
documents as may reasonably be required by Corporation, such
subscribers
will become Unit Holders.
e. During the Subscription Period, the Memorandum will not contain
any
untrue statement of a material fact or omit to state a material
fact
necessary in order to make the statements made therein, in the
light of the
circumstances under which they were made, not materially
misleading.
f. This Agreement has been duly and validly authorized, executed,
and
delivered by or on behalf of Corporation and constitutes a valid
and
binding agreement of Corporation.
g. Execution by Corporation of a subscriber's Subscription
Documents will
be duly and validly authorized by or on behalf of Corporation and
will
constitute a valid and binding agreement of Corporation.
h. The execution and delivery of this Agreement and the incurrence
of the
obligations set forth herein and the consummation of the
transactions
contemplated in this Agreement and the Memorandum will not
constitute a
breach or default under:
(i)
any instruments by which Corporation is bound; or
Selling Agreement
Page 3
(ii) any order, rule or regulation (applicable to Corporation)
issued
by any court, governmental body or administrative agency having
jurisdiction over Corporation.
i. Corporation shall make available, during the Subscription Period
and
prior to the sale of any Units, to each purchaser or his purchaser
representative(s) or both:
(i) such information (in addition to that contained in the
Memorandum)
concerning the offering of Units, Corporation, and any other
relevant
matters, as Corporation possesses or can acquire without
unreasonable
effort or expense; and
(ii) the opportunity to ask questions of, and receive answers from,
Corporation concerning the terms and conditions of the offering of
the
Units, and to obtain any additional information, to the extent
Corporation possesses the same or can acquire it without
unreasonable
effort or expense, necessary to verify the accuracy of the
information
furnished to the purchaser or his purchaser representative(s).
j. With respect to those activities undertaken by it, Corporation
has
endeavored to ensure that the offering and sale of Units complies,
in all
respects, with the requirements of the Securities Act of 1933, as
amended,
and the Securities Exchange Act of 1934, as amended, and the
securities or
"blue sky" laws of any state or jurisdiction in which an offer
and/or sale
takes place.
k. There is no litigation or proceeding at law or in equity before
any
federal or state authority against Corporation wherein an
unfavorable
decision, ruling, or finding would materially and adversely affect
the
business, operations or financial condition or income of
Corporation or any
proposed Corporation investment, and neither the execution and
delivery of
this Agreement, the consummation of the transactions herein
contemplated,
nor the fulfillment of or compliance with the terms hereof will
conflict
with, or result in a breach of, any of the terms, provisions, or
conditions
of any agreement or instrument to which Corporation is a party.
l. Corporation will endeavor in good faith to qualify, or assist
you in
qualifying, the Units for offer and sale, or to establish, or
assist you in
establishing, the exemption of the offer and sale of the Units from
qualification or registration under the applicable securities or
"blue sky"
laws of such jurisdictions as you may reasonably designate, and
will
promptly notify you, orally or in writing (but if orally then
prompt
written confirmation shall be delivered to you), as each
jurisdiction is so
qualified or as an exemption from registration or qualification is
established therein; provided, however, that Corporation shall not
be
Selling Agreement
Page 4
obligated to do business or to qualify as a dealer in any
jurisdiction in
which it is not so qualified.
m. Corporation will pay all expenses in connection with the
printing and
delivery to you in reasonable quantities of copies of the
Memorandum and
the qualification of the Units under the securities or "blue sky"
laws.
n. As compensation for your services, Corporation will pay you a
sales
commission equal to (i) seven percent (7%) of the gross proceeds
received
by Corporation from the Units placed by you and (ii) warrants to
purchase a
number of shares of common stock equal to five percent (5%) of the
number
of shares included within the Units placed by you, payable pursuant
to the
terms of the Memorandum.
o. If any event relating to or affecting Corporation shall occur
during the
Subscription Period, as a result of which it is necessary, in the
opinion
of your counsel and counsel to Corporation, to amend or supplement
the
Memorandum so that it will not contain an untrue statement of a
material
fact or omit to state a material fact necessary in order to make
the
statements therein, in light of the circumstances under which they
are
made, not misleading, Corporation shall forthwith prepare and
furnish to
you a reasonable number of copies of an amendment or amendments of,
or
supplement or supplements to, the Memorandum, which you shall
promptly
deliver to all offerees then being solicited. For purposes of this
subsection o., Corporation will furnish such inf
