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Exhibit 1.1
3,000,000 Shares of Common Stock
GLACIER CORPORATION
UNDERWRITING AGREEMENT
_____________, 2001
▇▇▇▇▇▇▇▇▇ Securities, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Glacier Corporation, a Colorado corporation (the "Company"), hereby
confirms its agreement with you (who are sometimes hereinafter referred to as
the "Representative") and with the other members of the underwriting group (the
"Underwriters") named on Schedule 1 hereto as follows:
1. Introductory. Subject to the terms and conditions herein contained,
the Company proposes to sell to the several Underwriters an aggregate of
3,000,000 shares (the "Firm Shares") of the Company's Common Stock, par value
$0.0001 per share (the "Common Stock"). The Company also proposes to sell to the
several Underwriters not more than 450,000 additional shares of Common Stock
(15% of the number of shares constituting the Firm Shares) if requested by the
Representative as provided in Section 3 of this Agreement. Any and all shares of
Common Stock to be purchased by the Underwriters pursuant to such option are
referred to herein as the "Additional Shares." The Firm Shares and any
Additional Shares are collectively referred to herein as the "Shares."
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each of the Underwriters that:
a. The Company has filed with the United States Securities and
Exchange Commission (the "Commission") a registration statement, and
may have filed one or more amendments thereto, on Form S-1
(Registration No. 333-_____________), including in such registration
statement and each such amendment, the information called for by Part
I, the information called for by Part II, the undertakings required by
Form S-1, the required
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signatures, the consents of experts required by Form S-1, the exhibits,
a related preliminary prospectus (a "Preliminary Prospectus") and any
other information or documents which are required for the registration
of the Shares, the warrants referred to in Section 5(p) (the
"Representative's Warrants") and the shares referred to in Section 5(p)
purchasable upon exercise of the Representative's Warrants (the
"Representative's Warrant Shares"), under the Securities Act of 1933,
as amended (the "Act"). As used in this Agreement, the term
"Registration Statement" means such registration statement, including
incorporated documents, all exhibits and consolidated financial
statements and schedules thereto, as amended, when it becomes
effective, and shall include the information with respect to the
Shares, the Representative's Warrants, and the Representative's Warrant
Shares and the offering thereof permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A
of the General Rules and Regulations promulgated under the Act (the
"Regulations"), which information is deemed to be included therein when
it becomes effective as provided by Rule 430A; the term "Preliminary
Prospectus" means each prospectus included in the Registration
Statement, or any amendments thereto, before it becomes effective under
the Act and any prospectus filed by the Company with the consent of the
Representative pursuant to Rule 424(a) of the Regulations; and the term
"Prospectus" means the final prospectus included as part of the
Registration Statement, except that if the prospectus relating to the
securities covered by the Registration Statement in the form first
filed on behalf of the Company with the Commission pursuant to Rule
424(b) of the Regulations shall differ from such final prospectus, the
term "Prospectus" shall mean the prospectus as filed pursuant to Rule
424(b) from and after the date on which it shall have first been used.
b. When the Registration Statement becomes effective, and at
all times subsequent thereto, to and including the Closing Date (as
defined in Section 3) and each Additional Closing Date (as defined in
Section 3), and during such longer period as the Prospectus may be
required to be delivered in connection with sales by the Representative
or any dealer, and during such longer period until any post-effective
amendment thereto shall become effective, the Registration Statement
(and any post-effective amendment thereto) and
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the Prospectus (as amended or as supplemented if the Company shall have
filed with the Commission any amendment or supplement to the
Registration Statement or the Prospectus) will contain all statements
which are required to be stated therein in accordance with the Act and
the Regulations, will comply with the Act and the Regulations, and will
not contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make
the statements therein not misleading, and no event will have occurred
which should have been set forth in an amendment or supplement to the
Registration Statement or the Prospectus which has not then been set
forth in such an amendment or supplement; and no Preliminary
Prospectus, as of the date filed with the Commission, included any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading; except that no representation or warranty is
made in this Section 2(b) with respect to statements or omissions made
in reliance upon and in conformity with written information furnished
to the Company as stated in Section 8(b) with respect to the
Underwriters by or on behalf of the Underwriters expressly for
inclusion in any Preliminary Prospectus, the Registration Statement, or
the Prospectus, or any amendment or supplement thereto.
c. Neither the Commission nor the "blue sky" or securities
authority of any jurisdiction has issued an order (a "Stop Order")
suspending the effectiveness of the Registration Statement, preventing
or suspending the use of any Preliminary Prospectus, the Prospectus,
the Registration Statement, or any amendment or supplement thereto,
refusing to permit the effectiveness of the Registration Statement, or
suspending the registration or qualification of the Shares, the
Representative's Warrants, and the Representative's Warrant Shares, nor
has any of such authorities instituted or threatened to institute any
proceedings with respect to a Stop Order.
d. Any contract, agreement, instrument, lease, or license
required to be described in the Registration Statement or the
Prospectus has been properly described therein. Any contract,
agreement, instrument, lease, or license required to be filed as an
exhibit to the Registration Statement has been filed with the
Commission as an exhibit to or has been incorporated as an exhibit by
reference into the Registration Statement.
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e. The Company is a corporation duly organized, validly
existing, and in good standing under the laws of the State of Colorado,
with full power and authority, and all necessary consents,
authorizations, approvals, orders, licenses, certificates, and permits
of and from, and declarations and filings with, all federal, state,
local, and other governmental authorities and all courts and other
tribunals, to own, lease, license, and use its properties and assets
and to carry on the business in the manner described in the Prospectus.
The subsidiaries of the Company are currently Glacier Distribution
Company, ▇▇▇▇▇ ▇▇▇▇▇▇▇ Distributors, Inc., The ▇▇▇▇▇ ▇▇▇▇▇ Family
Corporation and Rocky Mountain Fresh & Natural, Inc. Damon Distributing
Co. and Southwest Traders, Inc. will become subsidiaries of the Company
on the Closing Date (as defined in Section 3). Hereinafter, each of
such entities is referred to as a "Subsidiary" and all of such entities
collectively are referred to as the Subsidiaries." Each of the
Subsidiaries of the Company is a corporation duly organized and validly
existing in good standing under the laws of the jurisdiction of its
organization, with full corporate power and authority to own, lease,
and operate its properties and to conduct its business as described in
the Prospectus. The Company and each Subsidiary is duly qualified to do
business and is in good standing in every jurisdiction in which its
ownership, leasing, licensing, or use of property and assets or the
conduct of its business makes such qualifications necessary. The
Company has no subsidiaries except for the Subsidiaries.
f. The authorized capital stock of the Company consists of
90,000,000 shares of Common Stock, of which ______________ shares of
Common Stock are issued and outstanding, and 1,000,000 shares of Common
Stock are reserved for issuance upon the exercise of options authorized
under the Company's option plan; and 5,000,000 shares of Preferred
Stock, none of which are issued or outstanding. No more than 250,000
shares of the Company's common stock are issuable upon the exercise of
outstanding warrants or upon exercise of outstanding options granted
under the Company's option plan or otherwise. Each outstanding share of
Common Stock is validly authorized, validly issued, fully paid, and
nonassessable, without any personal liability attaching to the
ownership thereof, and has not been issued and is not owned or held in
violation of any preemptive rights of stockholders.
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There is no commitment, plan, or arrangement to issue, and no
outstanding option, warrant, or other right calling for the issuance
of, any share of capital stock of the Company or any security or other
instrument which by its terms is convertible into, exercisable for, or
exchangeable for capital stock of the Company, except as set forth
above, and as may be properly described in the Prospectus.
g. The pro forma combined financial information and the
consolidated financial statements of the Company and of the
Subsidiaries included in the Registration Statement and the Prospectus
fairly present with respect to the Company and the Subsidiaries the pro
forma financial information and the consolidated financial position,
the results of operations, and the other information purported to be
shown therein at the respective dates and for the respective periods to
which they apply. The consolidated financial statements have been
prepared in accordance with generally accepted accounting principles,
except to the extent that certain footnote disclosures regarding any
stub period may have been omitted in accordance with the applicable
rules of the Commission under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), consistently applied throughout the
periods involved, are correct and complete, and are in accordance with
the books and records of the Company and the Subsidiaries. The
accountants whose reports on the audited consolidated financial
statements are filed with the Commission as a part of the Registration
Statement are, and during the periods covered by their reports included
in the Registration Statement and the Prospectus were, independent
certified public accountants with respect to the Company within the
meaning of the Act and the Regulations. No other financial statements
are required by Form S-1 or otherwise to be included in the
Registration Statement or the Prospectus. There has at no time been a
material adverse change in the consolidated financial condition,
results of operations, business, properties, assets, liabilities, or
future prospects of the Company or the Subsidiaries from the latest
information set forth in the Registration Statement or the Prospectus,
except as may be properly described in the Prospectus.
h. There is no litigation, arbitration, claim, governmental or
other proceeding (formal or informal), or investigation pending, or, to
the knowledge of the Company,
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threatened, or proposed with respect to the Company or any of the
Subsidiaries or their operations, businesses, properties, or assets,
except as may be properly described in the Prospectus or such as
individually or in the aggregate do not now have and will not in the
future have a material adverse effect upon the operations, business,
properties, or assets of the Company or the Subsidiaries. To the
knowledge of the Company, neither the Company nor any Subsidiary is in
violation of, or in default with respect to, any law, rule, regulation,
order, judgment, or decree except as may be properly described in the
Prospectus or such as in the aggregate do not now have and will not in
the future have a material adverse effect upon the operations,
business, properties, or assets of the Company or any Subsidiary, nor
is the Company or any Subsidiary required to take any action in order
to avoid any such violation or default.
i. The Company and each Subsidiary has good and marketable
title in fee simple absolute to all real properties and good title to
all other properties and assets which the Prospectus indicates are
owned by them, free and clear of all liens, security interests,
pledges, charges, encumbrances, and mortgages except as may be properly
described in the Prospectus or such as in the aggregate do not now have
and will not in the future have a material adverse effect upon the
operations, business, properties, or assets of the Company or any
Subsidiary. To the knowledge of the Company, no real property owned,
leased, licensed, or used by the Company or any Subsidiary lies in an
area which is, or to the knowledge of the Company will be, subject to
zoning, use, or building code restrictions which would prohibit, and no
state of facts relating to the actions or inaction of another person or
entity or his or its ownership, leasing, licensing, or use of any real
or personal property exists or will exist which would prevent, the
continued effective ownership, leasing, licensing, or use of such real
property in the business of the Company or any Subsidiary, as presently
conducted or as the Prospectus indicates they contemplate conducting,
except as may be properly described in the Prospectus or such as in the
aggregate do not now have and will not in the future have a material
adverse effect upon the operations, business, properties, or assets of
the Company or any Subsidiary.
j. Neither the Company, any Subsidiary nor any other party is
now or is expected by the Company to be in material violation or breach
of, or in material default with
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respect to complying with, any material provision of any contract,
agreement, instrument, lease, license, arrangement, or understanding
which is material to the Company or any Subsidiary, and each such
contract, agreement, instrument, lease, license, arrangement, and
understanding is in full force and is the legal, valid, and binding
obligation of the parties thereto and is enforceable as to them in
accordance with its terms. The Company and each Subsidiary enjoys
peaceful and undisturbed possession under all leases and licenses under
which they are operating. Neither the Company nor any Subsidiary is a
party to or bound by any contract, agreement, instrument, lease,
license, arrangement, or understanding, or subject to any charter or
other restriction, which has had or which the Company believes may in
the future have a material adverse effect on the financial condition,
results of operations, business, properties, assets, liabilities, or
future prospects of the Company or any Subsidiary. Neither the Company
nor any Subsidiary is in violation or breach of, or in default with
respect to, any term of its Articles of Incorporation (or other charter
document) or by-laws.
k. All patents, patent applications, trademarks, trademark
applications, trade names, service marks, copyrights, franchises,
technology, know-how and other intangible properties and assets (all of
the foregoing being herein called "Intangibles") that the Company or
any Subsidiary owns or has pending, or under which they are licensed,
are in good standing and uncontested. Except as otherwise disclosed in
the Registration Statement, the Intangibles are owned by the Company or
a Subsidiary, free and clear of all liens, security interests, pledges,
and encumbrances. The Company or a Subsidiary has registered their
trademarks, "___________________" with the United States Patent and
Trademark Office. There is no right under any Intangible necessary to
the business of the Company or any Subsidiary, as presently conducted
or as the Prospectus indicates they contemplate conducting (except as
may be so designated in the Prospectus). To the knowledge of the
Company neither the Company nor any Subsidiary has infringed and is not
infringing any Intangibles of others and the Company has not received
notice of infringement with respect to asserted Intangibles of others.
To the knowledge of the Company, there is no infringement by others of
Intangibles of the Company or any Subsidiary. To the knowledge of the
Company, there is no Intangible of others which has had or may in the
future have a
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materially adverse effect on the financial condition, results of
operations, business, properties, assets, liabilities, or future
prospects of the Company or any Subsidiary.
l. Neither the Company nor any Subsidiary, nor any director,
officer, agent, employee, or other person or acting with authority on
behalf of the Company or any Subsidiary has, directly or indirectly:
used any corporate funds for unlawful contributions, gifts,
entertainment, or other unlawful expenses relating to political
activity; made any unlawful payment to foreign or domestic government
officials or employees or to foreign or domestic political parties or
campaigns from corporate funds; violated any provision of the Foreign
Corrupt Practices Act of 1977, as amended by the International
Anti-Bribery Act of 1998; or made any bribe, rebate, payoff, influence
payment, kickback, or other unlawful payment. Neither the Company nor
any Subsidiary has accepted any material advertising allowances or
marketing allowances from suppliers to the Company or to any Subsidiary
and, to the extent any advertising allowance has been accepted, the
Company or a Subsidiary has provided proper documentation to the
supplier with respect to advertising as to which the advertising
allowance has been granted.
m. The Company has all requisite power and authority to
execute and deliver, and to perform thereunder each of this Agreement
and the Representative's Warrants. All necessary corporate proceedings
of the Company have been duly taken to authorize the execution and
delivery, and performance thereunder by the Company of this Agreement
and the Representative's Warrants. This Agreement has been duly
authorized, executed, and delivered by the Company, is a legal, valid,
and binding obligation of the Company, and is enforceable as to the
Company in accordance with its terms. The Representative's Warrants
have been duly authorized by the Company and, when executed and
delivered by the Company, will be a legal, valid, and binding
obligation of the Company, and (subject to applicable bankruptcy,
insolvency and other laws affecting the enforceability of creditors'
rights generally) will be enforceable against the Company in accordance
with their terms. No consent, authorization, approval, order, license,
certificate, or permit of or from, or declaration or filing with, any
federal, state, local, or other governmental authority or any court or
other tribunal is required by the Company for the execution and
delivery, or
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performance thereunder, by the Company of this Agreement or the
Representative's Warrants except filings under the Act which have been
or will be made before the Closing Date and such consents consisting
only of consents under "blue sky" or securities laws which are required
in connection with the transactions contemplated by this Agreement and
which have been obtained at or prior to the date of this Agreement. No
consent of any party to any contract, agreement, instrument, lease,
license, arrangement, or understanding to which the Company or any
Subsidiary is a party, or to which any of their properties or assets
are subject, is required for the execution or delivery, or performance
thereunder of this Agreement or the Representative's Warrants; and the
execution and delivery, and performance thereunder of this Agreement
and the Representative's Warrants will not violate, result in a breach
of, conflict with, or (with or without the giving of notice or the
passage of time or both) entitle any party to terminate or call a
default under any such contract, agreement, instrument, lease, license,
arrangement, or understanding, or violate or result in a breach of any
term of the Articles of Incorporation or by-laws of the Company or any
Subsidiary, or violate, result in a breach of, or conflict with any
law, rule, regulation, order, judgment, or decree binding on the
Company or any Subsidiary or to which any of their operations,
businesses, properties, or assets are subject.
n. The Shares, the Representative's Warrants and the
Representative's Warrant Shares are validly authorized and reserved for
issuance. The Shares, when issued and delivered in accordance with this
Agreement, and the Representative's Warrant Shares, when issued and
delivered upon exercise of the Representative's Warrants and upon
payment of the exercise price therefor, will be validly issued, fully
paid, and nonassessable, without any personal liability attaching to
the ownership thereof, and will not be issued in violation of any
preemptive rights of stockholders, and the Underwriters will receive
good title to the Shares purchased, the Representative will receive
good title to the Representative's Warrants purchased and any purchaser
of the Representative's Warrant Shares will receive good title thereto,
all such title free and clear of all liens, security interests,
pledges, charges, encumbrances, stockholders' agreements, and voting
trusts.
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o. The Shares, the Representative's Warrants and the
Representative's Warrant Shares conform to all statements relating
thereto contained in the Registration Statement and the Prospectus.
p. Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, and except
as may otherwise be properly described in the Prospectus, neither the
Company nor any Subsidiary has (i) issued any securities or incurred
any liability or obligation, primary or contingent, for borrowed money,
(ii) entered into any transaction not in the ordinary course of
business, or (iii) declared or paid any dividend on its capital stock.
q. Neither the Company nor any of its officers, directors, or
affiliates (as defined in the Regulations), has taken or will take,
directly or indirectly, prior to the termination of the distribution of
securities contemplated by this Agreement, any action designed to
stabilize or manipulate the price of any security of the Company, or
which has caused or resulted in, or which might in the future
reasonably be expected to cause or result in, stabilization or
manipulation of the price of any security of the Company, to facilitate
the sale or resale of the Shares.
r. Other than as provided herein, the Company has not incurred
any liability for a fee, commission, or other compensation on account
of the employment of a broker or finder in connection with the
transactions contemplated by this Agreement.
s. The Company has obtained from each officer, director and
person or entity that beneficially owns the Company's Common Stock or
options his, her or its enforceable written agreement that for the
periods set forth, he, she or it will not, without the Representative's
prior written consent, sell or undertake any related action described
in such written agreement, with respect to the Company's Common Stock
or options owned by such person prior to the Effective Date. The
Company agrees not to sell its Common Stock for 24 months from the
Effective Date except (i) with the Representative's prior written
consent, (ii) in an underwritten public offering, (iii) in connection
with an acquisition, (iv) upon the exercise of options granted pursuant
to the Company's stock option plan, or (v) upon exercise of the
Representative's Warrants.
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t. Except as otherwise provided in the Registration Statement,
no person or entity has the right to require registration of shares of
Common Stock or other securities of the Company because of the filing
or effectiveness of the Registration Statement.
u. The Company is eligible to use Form S-1 for registration of
the Shares, the Representative's Warrants and the Representative's
Warrant Shares.
v. No unregistered securities of the Company, of an affiliate
of the Company or of a predecessor of the Company have been sold within
three years prior to the date hereof, except as described in the
Registration Statement.
w. Except as set forth in the Registration Statement, there is
and at the Closing Date there will be no action, suit or proceeding
before any court, arbitration tribunal or governmental agency,
authority or body pending or, to the knowledge of the Company,
threatened which might result in judgments against the Company or any
Subsidiary not adequately covered by insurance or which collectively
might result in any material adverse change in the condition (financial
or otherwise), the business or the prospects of the Company or any
Subsidiary or would materially affect the properties or assets of the
Company or any Subsidiary.
x. The Company and each Subsidiary has filed all federal and
state tax returns which are required to be filed by them and has paid
all taxes shown on such returns and all assessments received by them to
the extent such taxes have become due. All taxes with respect to which
the Company or any Subsidiary is obligated have been paid or adequate
accruals have been set up to cover any such unpaid taxes.
y. Except as set forth in the Registration Statement:
i. To the knowledge of the Company, the Company and
each Subsidiary has obtained all permits, licenses and other
authorizations which are required under the Environmental Laws
for the ownership, use and operation of each location operated
or leased by the Company or any Subsidiary (the "Property"),
all such permits, licenses and authorizations, if any,
obtained are in effect, no appeal nor any other action is
pending to revoke any such permit, license or authorization,
and the Company and each Subsidiary is in material compliance
with all material terms and
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conditions of all such permits, licenses and authorizations,
if any, obtained by the Company or any Subsidiary.
ii. To the knowledge of the Company, the Company,
each Subsidiary and the Property are in compliance with all
Environmental Laws including, without limitation, all
restrictions, conditions, standards, limitations,
prohibitions, requirements, obligations, schedules and
timetables contained in the Environmental Laws or contained in
any regulation, code, plan, order, decree, judgment,
injunction, notice or demand letter issued, entered,
promulgated or approved thereunder.
iii. Neither the Company nor any Subsidiary has, and
to the knowledge of the Company, no other person has,
released, placed, stored, buried or dumped any Hazardous
Substances, Oils, Pollutants or Contaminants or any other
wastes produced by, or resulting from, any business,
commercial, or industrial activities, operations, or
processes, on, beneath, or adjacent to the Property or any
property formerly owned, operated or leased by the Company or
any Subsidiary except for inventories of such substances to be
used, and wastes generated therefrom, in the ordinary course
of business of the Company or any Subsidiary (which
inventories and wastes, if any, were and are stored or
disposed of materially in accordance with applicable laws and
regulations and in a manner such that there has been no
material release of any such substances into the environment).
iv. Except as provided to the Representative, to the
knowledge of the Company there exists no written or tangible
report, synopsis or summary of any asbestos, toxic waste or
Hazardous Substances, Oils, Pollutants or Contaminants
investigation made with respect to all or any portion of the
assets of the Company or any Subsidiary (whether or not
prepared by experts and whether or not in the possession of
the executive officers of the Company).
v. Definitions: As used herein:
(1) Environmental Laws means all federal,
state and local laws, regulations, rules and
ordinances relating to pollution or protection of the
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environment, including, without limitation, laws
relating to Releases or threatened Releases of
Hazardous Substances, Oils, Pollutants or
Contaminants into the indoor or outdoor environment
(including, without limitation, ambient air, surface
water, groundwater, land, surface and subsurface
strata) or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage,
Release, transport or handling of Hazardous
Substances, Oils, Pollutants or Contaminants.
(2) Hazardous Substances, Oils, Pollutants
or Contaminants means all substances defined as such
in the National Oil and Hazardous Substances
Pollutant Contingency Plan, 40 C.F.R. 300.6, or
defined as such under any Environmental Law.
(3) Release means any release, spill,
emission, discharge, leaking, pumping, injection,
deposit, disposal, discharge, dispersal, leaching or
migration into the indoor or outdoor environmental
(including, without limitation, ambient air, surface
water, groundwater, and surface or subsurface strata)
or into or out of any property, including the
movement of Hazardous Substances, Oils, Pollutants or
Contaminants through or in the air, soil, surface
water, groundwater or any property.
z. No authorization, approval, consent or order of, or filing
with, any Federal, state or local governmental body, authority, self
regulatory authority, agency or official (collectively, the
"Governmental Authorities") is necessary in connection with the
issuance and sale of the Shares and the consummation of the
transactions contemplated hereby, except such as may be required by the
NASD or have been obtained under the applicable laws, rules and
regulations maintained and enforced by the Governmental Authorities in
their respective jurisdictions or under the Act, state securities or
Blue Sky laws or regulations.
All of the above representations and warranties shall survive
the performance or termination of this Agreement.
3. Purchase, Sale, and Delivery of the Shares. On the basis of
the representations, warranties, covenants, and agreements of the
Company herein contained, but
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subject to the terms and conditions herein set forth, the Company
agrees to sell to the Underwriters, severally and not jointly, and the
Underwriters, severally and not jointly, agree to purchase from the
Company the number of Firm Shares set forth opposite the Underwriters'
names in Schedule 1 hereto.
The purchase price per Firm Share to be paid by the
Underwriters shall be $______. The initial public offering price of the
Shares shall be $_____.
Payment for the Firm Shares by the Underwriters shall be made
by wire transfer or by certified or official bank check in clearing
house funds, payable to the order of the Company at the offices of
▇▇▇▇▇▇▇▇▇ Securities, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place in Denver, Colorado as the
Representative shall determine and advise the Company by at least two
full days' notice in writing, upon delivery of the Shares to the
Representative. Such delivery and payment shall be made at 10:00 a.m.,
Mountain Time, on the third business day following the time of the
initial public offering, as defined in Section 10(a) hereof, unless the
Commission declares the Registration Statement effective after 4:30
p.m. Eastern time, in which event delivery and payment shall be made on
the fourth (4th) business day following the time of the initial public
offering. The time and date of such delivery and payment are herein
called the "Closing Date."
In addition, the Company hereby grants to the Representative
the option to purchase all or a portion of the Additional Shares as may
be necessary to cover over-allotments, at the same purchase price per
Additional Share as the price per Firm Share provided for in this
Section 3. The Representative may purchase Additional Shares when
exercising such option, in its sole discretion. This option may be
exercised by the Representative on the basis of the representations,
warranties, covenants, and agreements of the Company herein contained,
but subject to the terms and conditions herein set forth, at any time
and from time to time on or before the 45th day following the Effective
Date of the Registration Statement, by written notice by the
Representative to the Company. Such notice shall set forth the
aggregate number of Additional Shares as to which the option is being
exercised, and the time and date, as determined by the Representative,
when such Additional Shares are to be delivered (such time and date are
herein called an "Additional Closing Date"); provided, however, that no
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Additional Closing Date shall be earlier than the Closing Date nor
earlier than the third business day after the date on which the notice
of the exercise of the option shall have been given nor later than the
eighth business day after the date on which such notice shall have been
given; and further provided, that not more than two Additional Closings
shall be noticed and held following purchase of Additional Shares by
the Representative.
Payment for the Additional Shares shall be made by wire
transfer or by certified or official bank check in clearing house funds
payable to the order of the Company at the offices of ▇▇▇▇▇▇▇▇▇
Securities, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, or
at such other place in Denver, Colorado as you shall determine and
advise the Company by at least two full days' notice in writing, upon
delivery of certificates representing the Additional Shares to you.
Certificates for the Shares purchased shall be registered in
such name or names and in such authorized denominations as you may
request in writing at least two full business days prior to the Closing
Date or Additional Closing Date, as applicable. The Company shall
permit you to examine and package such certificates for delivery at
least one full business day prior to any such closing with respect
thereto.
If for any reason one or more Underwriters shall fail or
refuse (otherwise than for a reason sufficient to justify the
termination of this Agreement under the provisions of Section 10
hereof) to purchase and pay for the number of Firm Shares agreed to be
purchased by such Underwriter, the Company shall immediately give
notice thereof to the Representative, and the non-defaulting
Underwriters shall have the right within 24 hours after the receipt by
the Representative of such notice, to purchase or procure one or more
other Underwriters to purchase, in such proportions as may be agreed
upon among the Representative and such purchasing Underwriter or
Underwriters and upon the terms herein set forth, the Firm Shares which
such defaulting Underwriter or Underwriters agreed to purchase. If the
non-defaulting Underwriters fail so to make such arrangements with
respect to all such Firm Shares, the number of Firm Shares which each
non-defaulting Underwriter is otherwise obligated to purchase under the
Agreement shall be automatically increased pro rata to absorb the
remaining Firm Shares which the defaulting Underwriter or Underwriters
agreed to purchase;
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provided, however, that the non-defaulting Underwriters shall not be
obligated to purchase the Firm Shares which the defaulting Underwriter
or Underwriters agreed to purchase in excess of 10% of the total number
of Shares which such non-defaulting Underwriter agreed to purchase
hereunder, and provided further that the non-defaulting Underwriters
shall not be obligated to purchase any Firm Shares which the defaulting
Underwriter or Underwriters agreed to purchase if such additional
purchase would cause the Underwriter to be in violation of the net
capital rule of the Commission or other applicable law. If the total
number of Firm Shares which the defaulting Underwriter or Underwriters
agreed to purchase shall not be purchased or absorbed in accordance
with the two preceding sentences, the Company shall have the right,
within the 24 hours next succeeding the 24-hour period above referred
to, to make arrangements with other underwriters or purchasers
satisfactory to the Representative for the purchase of such Firm Shares
on the terms herein set forth. In any such case, either the
Representative or the Company shall have the right to postpone the
Closing for not more than seven business days after the date originally
fixed as the Closing in order that any necessary changes in the
Registration Statement, the Prospectus or any other documents or
arrangements may be made. If neither the non-defaulting Underwriters
nor the Company shall make arrangements within the 24-hour periods
stated above for the purchase of all the Firm Shares which the
defaulting Underwriter or Underwriters agreed to purchase hereunder,
this Agreement shall be terminated without further act or deed and
without any liability on the part of the Company to any non-defaulting
Underwriter, except the Company shall be liable for actual expenses
incurred by the Representative as provided in Section 10 hereof, and
without any liability on the part of any non-defaulting Underwriter to
the Company.
Nothing contained herein shall relieve any defaulting
Underwriter of its liability, if any, to the Company or to the
remaining Underwriters for damages occasioned by its default hereunder.
4. Offering. The Underwriters are to make a public offering of
the Shares as soon, on or after the effective date of the Registration
Statement, as the Representative deems it advisable so to do. The
Shares are to be initially offered to the public at the initial public
offering price as provided for in Section 3 (such price being herein
called the "public offering
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price"). After the initial public offering, you may from time to time
increase or decrease the price of the Shares in your sole discretion,
by reason of changes in general market conditions or otherwise.
5. Covenants of the Company. The Company covenants that it
will:
a. Use its best efforts to cause the Registration Statement to
become effective as promptly as possible. If the Registration Statement
has become or becomes effective with a form of Prospectus omitting
certain information pursuant to Rule 430A of the Regulations, or filing
of the Prospectus is otherwise required under Rule 424(b), the Company
will file the Prospectus, properly completed, pursuant to Rule 424(b)
within the time period prescribed and will provide evidence
satisfactory to you of such timely filing.
b. Notify you immediately, and confirm such notice in writing,
(i) when the Registration Statement and any post-effective amendment
thereto become effective, (ii) of the receipt of any comments from the
Commission or the "blue sky" or securities authority of any
jurisdiction regarding the Registration Statement, any post-effective
amendment thereto, the Prospectus, or any amendment or supplement
thereto, and (iii) of the receipt of any notification with respect to a
Stop Order or the initiation or threatening of any proceeding with
respect to a Stop Order. The Company will use its best efforts to
prevent the issuance of any Stop Order and, if any Stop Order is
issued, to obtain the lifting thereof as promptly as possible.
c. During the time when a prospectus relating to the Shares is
required to be delivered hereunder or under the Act or the Regulations,
comply so far as it is able with all requirements imposed upon it by
the Act, as now existing and as hereafter amended, and by the
Regulations, as from time to time in force, so far as necessary to
permit the continuance of sales of or dealings in the Shares and
Representative's Warrant Shares in accordance with the provisions
hereof and the Prospectus. If, at any time when a prospectus relating
to the Shares or Representative's Warrant Shares is required to be
delivered hereunder or under the Act or the Regulations, any event
shall have occurred as a result of which, in the reasonable opinion of
counsel for the Company or counsel for the Representative, the
Registration Statement or the Prospectus, as then amended or
supplemented, contains any untrue
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statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading, or if, in the opinion of either of such
counsel, it is necessary at any time to amend or supplement the
Registration Statement or the Prospectus to comply with the Act or the
Regulations, the Company will immediately notify you and promptly
prepare and file with the Commission an appropriate amendment or
supplement (in form and substance satisfactory to you) which will
correct such statement or omission or which will effect such compliance
and will use its best efforts to have any such amendment declared
effective as soon as possible.
d. Deliver without charge to you such number of copies of each
Preliminary Prospectus as you may reasonably request and, as soon as
the Registration Statement or any amendment thereto becomes effective
or a supplement is filed, deliver without charge to you two signed
copies of the Registration Statement or such amendment thereto, as the
case may be, including exhibits, and two copies of any supplement
thereto, and deliver without charge to you such number of copies of the
Prospectus, the Registration Statement, and amendments and supplements
thereto, if any, without exhibits, as you may reasonably request for
the purposes contemplated by the Act.
e. Endeavor in good faith, in cooperation with you, at or
prior to the time the Registration Statement becomes effective, to
qualify the Shares and Representative's Warrant Shares for offering and
sale under the "blue sky" or securities laws of such jurisdictions as
you may designate; provided, however, that no such qualification shall
be required in any jurisdiction where, as a result thereof, the Company
would be subject to service of general process or to taxation as a
foreign corporation doing business in such jurisdiction to which it is
not then subject. In each jurisdiction where such qualification shall
be effected, the Company will, unless you agree in writing that such
action is not at the time necessary or advisable, file and make such
statements or reports at such times as are or may be required by the
laws of such jurisdiction.
f. Make generally available (within the meaning of Section
11(a) of the Act and the Regulations) to its security holders as soon
as practicable, but not later than 15 months after the date of the
Prospectus, an earnings statement (which need not be certified by
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independent certified public accountants unless required by the Act or
the Regulations, but which shall satisfy the provisions of Section
11(a) of the Act and the Regulations) covering a period of at least 12
months beginning after the effective date of the Registration
Statement.
g. For a period of 12 months after the date of the Prospectus,
not, without your prior written consent, offer, issue, sell, contract
to sell, grant any option for the sale of, or otherwise dispose of,
directly or indirectly, any shares of Common Stock (or any security or
other instrument which by its terms is convertible into, exercisable
for, or exchangeable for shares of Common Stock) except as provided in
Section 3 and except (i) with the Representative's prior written
consent, (ii) in an underwritten public offering, (iii) in connection
with an acquisition, (iv) upon the exercise of options granted pursuant
to the Company's stock option plan, (v) upon exercise of the
Representative's Warrants.
h. For a period of five years after the Effective Date of the
registration statement, furnish you, without charge, the following:
i. Within 105 days after the end of each fiscal year,
three copies of consolidated financial statements certified by
independent certified public accountants, including a balance
sheet, statement of operations, and statement of cash flows of
the Company and its then existing Subsidiaries, with
supporting schedules (if applicable), prepared in accordance
with generally accepted accounting principles, at the end of
such fiscal year and for the 12 months then ended;
ii. As soon as practicable after they have been sent
to stockholders of the Company or filed with the Commission,
three copies of each annual and interim financial and other
report or communication sent by the Company to its
stockholders or filed with the Commission;
iii. As soon as practicable, two copies of every
press release and every material news item and article in
respect of the Company or its affairs which was released by
the Company; and
iv. Such additional documents and information with
respect to the Company and its affairs and the affairs of any
of its Subsidiaries as you may from time to time reasonably
request.
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i. Prior to the Effective Date, and continuing for such period
of time that the Company's Common Stock is publicly traded, designate
and maintain an Audit Committee comprised of members that meet the
listing statements of The Nasdaq Stock Market, Inc. and that comply
with the obligations as outlined in Exchange Act Release No. 34-42266,
and designate and maintain a Compensation Committee, the members of
which shall be subject to your reasonable approval, which will
generally supervise the financial affairs of the Company and review
executive compensation, respectively.
j. Furnish to you as early as practicable prior to the Closing
Date and any Additional Closing Date, as the case may be, but not less
than two full business days prior thereto, a copy of the latest
available unaudited interim consolidated financial statements of the
Company which have been read by the Company's independent certified
public accountants, as stated in their letters to be furnished pursuant
to Section 7(e).
k. File no amendment or supplement to the Registration
Statement or Prospectus at any time, whether before or after the
Effective Date of the Registration Statement, unless such filing shall
comply with the Act and the Regulations and unless you shall previously
have been advised of such filing and furnished with a copy thereof, and
you and counsel for the Representative shall have approved such filing
in writing within a reasonable time of receipt thereof.
l. Comply with all periodic reporting and proxy solicitation
requirements which may from time to time be applicable to the Company
as a result of the Company's registration under the Exchange Act on a
registration statement on Form 8-A .
m. Comply with all provisions of all undertakings contained in
the Registration Statement.
n. Prior to the Closing Date or any Additional Closing Date,
as the case may be, issue no press release or other communication,
directly or indirectly, and hold no press conference and grant no
interviews with respect to the Company, the financial condition,
results of operations, business, properties, assets, or liabilities of
the Company, or this offering, without your prior written consent.
o. Appoint Computershare Investor Services, Inc. as its
transfer agent.
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p. On or prior to the Closing Date, sell to the Representative
for a total purchase price of $10, Representative's Warrants entitling
the Representative or its assigns to purchase 300,000 shares of Common
Stock at a price equal to 120% of the public offering price of the
Shares, with the terms of the Representative's Warrants, including
exercise period, anti-dilution provisions, exercise price, exercise
provisions, transferability, and registration rights, to be in the form
filed as an exhibit to the Registration Statement.
q. Until expiration of the Representative's Warrants, keep
reserved a sufficient number of shares of Common Stock for issuance as
Representative's Warrant Shares upon full exercise of the
Representative's Warrants.
r. Adopt procedures for the application of the net proceeds it
receives from the sale of the Shares and apply the net proceeds from
the sale of the Shares substantially in the manner set forth in the
Registration Statement, unless any deviation from such application is
in accordance with the Registration Statement and occurs only after
approval by the Board of Directors of the Company and then only after
the Board of Directors has obtained the written opinion of recognized
legal counsel experienced in federal and state securities laws as to
the propriety of any such deviation.
s. Within the time period which the Prospectus is required to
be delivered under the Act, comply, at its own expense, with all
requirements imposed upon it by the Act, as now or hereafter amended,
by the Rules and Regulations, as from time to time may be enforced, and
by any order of the Commission, so far as necessary to permit the
continuance of sales or dealing in the Shares.
t. At the Closing, deliver to the Representative true and
correct copies of the Articles of Incorporation of the Company and all
amendments thereto, all such copies to be certified by the Secretary of
the Company; true and correct copies of the by-laws of the Company and
of the minutes of all meetings of the directors and stockholders of the
Company held prior to the Closing which in any way relate to the
subject matter of this Agreement or the Registration Statement.
u. Use all reasonable efforts to comply or cause to be
complied with the conditions precedent to the several obligations of
the Underwriters in Section 7 hereof.
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v. File with the Commission all required information
concerning use of proceeds of the Public Offering in Forms 10-Q and
10-K in accordance with the provisions of the Exchange Act and to
provide a copy of such reports to the Representative and its counsel.
w. Supply to the Representative and the Representative's
counsel at the Company's cost, four bound volumes each containing
material documents (including but not limited to all documents and
appropriate correspondence filed with or received from the Commission,
NASD and Nasdaq and all closing documents) relating to the offering of
the Shares within a reasonable time after the Closing, not to exceed 90
days.
x. As soon as possible prior to the Effective Date, and as a
condition of the Underwriter's obligations hereunder, (i) have the
Company listed on an accelerated basis in the Daily News Supplement of
Standard and Poor's Corporation Records and maintain such a listing for
not less than 10 years from the Closing Date in Standard & Poor's
Standard Corporation Records; and (ii) have the Common Stock quoted on
the Nasdaq National Market as of the Effective Date, on the Closing
Date, on the Additional Closing Date and thereafter for at least ten
years provided the Company is in compliance with the Nasdaq National
Market maintenance requirements.
y. Continue, for a period of at least five years following the
Effective Date of the Registration Statement, to appoint such auditors
as are reasonably acceptable to the Representative, which auditors
shall (i) prepare consolidated financial statements in accordance with
Regulation S-X under the General Rules and Regulations of the Act and
(ii) review (but not audit) the Company's consolidated financial
statements for each of the first three fiscal quarters prior to the
announcement of quarterly financial information, the filing of the
Company's 10-Q quarterly report and the mailing of quarterly financial
information to security holders.
z. For a period of five years after the Effective Date,
distribute an annual report to all stockholders meeting the
requirements of Section 14a-3 of the Exchange Act and setting forth
clearly the financial position of the Company.
aa. Within 90 days of the Effective Date of the Registration
Statement, obtain "key man" life insurance policies in the amounts of
$1,000,000 on each of the lives of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇ and
▇▇▇▇▇ ▇▇▇▇▇, with the Company designated as the
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beneficiary of such policies, and pay the annual premiums thereon for a
period of not less than five years from the Effective Date of the
Registration Statement.
bb. Cause its transfer agent to furnish the Representative a
duplicate copy of the daily transfer sheets prepared by the transfer
agent during the six-month period commencing on the Effective Date of
the Registration Statement and instruct the transfer agent to timely
provide, upon the request of the Representative, duplicate copies of
such transfer sheets and/or a duplicate copy of a list of stockholders,
all at the Company's expense, for a period of 4 1/2 years after such
six-month period.
cc. Refrain from filing a Form S-8 registration statement for
a period of 12 months from the Effective Date of the Registration
Statement without the Representative's prior written consent.
dd. Cause the Company's Board of Directors to meet at least
quarterly, upon proper notice, and provide the Representative with
notice of any regular or special meetings of the Company's Board of
Directors concurrently with the sending of notice to the Company's
directors. Afford the Representative the right, but not the obligation,
commencing on the Effective Date and surviving for a period of five
years, to designate an observer to attend meetings of the Board of
Directors. Any such designee will receive reimbursement for all
reasonable costs and expenses incurred in attending meetings of the
Board of Directors, including but not limited to, food, lodging and
transportation, together with such other fee or compensation (but
excluding options or securities) as is paid by the Company to the
independent member of the Board of Directors who is paid the highest
fee or compensation among any of the independent directors. Moreover,
to the extent permitted by law, the Representative and its designee
shall be indemnified for the actions of such designee as an observer to
the Board of Directors and in the event the Company maintains a
liability insurance policy affording coverage for the acts of its
officers and/or directors, to the extent permitted under such policy,
each of the Representative and its designee shall be an insured under
such policy.
ee. At the Closing, enter into a financial consulting
agreement with the Representative in the form described in the
Prospectus.
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ff. Engage the services of a reputable public relations firm
that is reasonably acceptable to the Representative, as of the
Effective Date and for a minimum period of 12 months thereafter for the
purpose of facilitating appropriate disclosure by the Company to its
stockholders, the media and the public securities markets.
gg. Use ▇▇▇▇▇ as its financial printer and pay all statements
rendered by ▇▇▇▇▇ within two days after the receipt thereof.
hh. Cause stockholders owning shares of Common Stock
outstanding prior to the offering to place in an escrow account an
aggregate of 500,000 shares of Common Stock at or prior to the
Effective Date. Such shares of Common Stock shall be subject to release
from escrow upon: (i) the Company achieving revenues exceeding $250
million and after tax net income of $6 million in fiscal year 2001; or
(ii) the Company achieving revenues exceeding $300 million and after
tax net income of $7.5 million in fiscal year 2002. In the event the
Company fails to meet the criteria set forth above in fiscal 2001 or
fiscal 2002, the escrowed shares of Common Stock shall be released at
the earlier of: (i) seven years from the Effective Date, or (ii)
consummation of a merger, acquisition or exchange in which the Company
is not the surviving entity or in which the shareholders of the Company
own less than 50% of the outstanding capital stock of the surviving
entity following such transaction or the sale of all or substantially
all of the assets of the Company that is approved by a majority of the
holders of the outstanding shares excluding the shares held in the
escrow account.
ii. Comply in all material respects with the Marketplace Rules
of The Nasdaq Stock Market, Inc., including without limitation, the
corporate governance rules.
6. Payment of Expenses. The Company hereby agrees to pay all expenses
(subject to the last sentence of this Section 6) in connection with the
offering, including but not limited to (a) the preparation, printing, filing,
distribution, and mailing of the Registration Statement and the Prospectus,
including NASD, SEC, Nasdaq filing and/or application fees, and the printing,
filing, distribution, and mailing of this Agreement, any Agreement Among
Underwriters, Selected Dealers Agreement, preliminary and final Blue Sky
Memorandums, material to be circulated to the Underwriters by you and other
incidental or related documents, including the cost of all copies thereof and of
the Preliminary Prospectuses and of the Prospectus, and any amendments or
supplements thereto, supplied to the Representative in quantities as herein
above stated, (b) the is-
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suance, sale, transfer, and delivery of the Firm Shares, Additional Shares, the
Representative's Warrants and the Representative's Warrant Shares, including,
without limitation, any original issue, transfer or other taxes payable thereon
and the costs of preparation, printing and delivery of certificates representing
such securities, as applicable, (c) the qualification of the Firm Shares,
Additional Shares, the Representative's Warrants and the Representative's
Warrant Shares under state or foreign "blue sky" or securities laws, which
qualification shall be undertaken by counsel to the Representative at the
Company's expense, (d) the fees and disbursements of counsel for the Company and
the accountants for the Company, (e) the listing of the Shares on the Nasdaq
National Market, and (f) the Representative's non-accountable expense allowance
equal to 3% of the aggregate gross proceeds from the sale of the Shares. Prior
to or immediately following the Closing Date, the Company shall bear the costs
of tombstone announcements if requested to do so by the Representative.
The Company has previously remitted to the Representative the sum of
$40,000, which sum has been credited as a partial payment in advance of the
non-accountable expense allowance provided for in Section 6(f) above.
7. Conditions of Underwriters' Obligations. The Underwriters'
obligation to purchase and pay for the Firm Shares and Additional Shares, as
provided herein, shall be subject to the continuing accuracy of the
representations and warranties of the Company contained herein and in each
certificate and document contemplated under this Agreement to be delivered to
you, as of the date hereof and as of the Closing Date (or the Additional Closing
Date, as the case may be), to the performance by the Company of its obligations
hereunder, and to the following conditions:
a. The Registration Statement shall have become effective not
later than 5:00 p.m., Mountain time, on the date of this Agreement or
such later date and time as shall be consented to in writing by you.
b. At the Closing Date and any Additional Closing Date, you
shall have received the favorable opinion of Berliner, ▇▇▇▇▇▇, ▇▇▇▇▇▇ &
▇▇▇▇▇▇▇▇, P.C., counsel for the Company, dated the date of delivery,
addressed to you, and in form and scope satisfactory to your counsel,
to the effect that:
i. The Company is a corporation duly organized,
validly existing, and in good standing under the laws of the
State of Colorado, with full power and authority,
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and counsel has no knowledge that the Company does not have all necessary
consents, authorizations, approvals, orders, certificates, and permits of and
from, and has not made all declarations and filings with, all federal, state,
local, and other governmental authorities and all courts and other tribunals, to
own, lease, license, and use its properties and assets and to conduct its
business in the manner described in the Prospectus. The Company is duly
qualified to do business and is in good standing in every jurisdiction in which
its ownership, leasing, licensing, or use of property and assets or the conduct
of its business makes such qualification necessary;
ii. Each Subsidiary is a corporation duly organized
and validly existing in good standing under the laws of the
jurisdiction of its organization, with full corporate power
and authority to own, lease, and operate its properties and to
conduct its business as described in the Registration
Statement and the Prospectus (and any amendment or supplement
thereto); and all the outstanding shares of capital stock of
each of the Subsidiaries have been duly authorized and validly
issued, are fully paid and nonassessable, and are owned by the
Company directly, or indirectly through one of the other
Subsidiaries, free and clear of any perfected security
interest, or, to the best knowledge of such counsel after
reasonable inquiry, any other security interest, lien, adverse
claim, equity or other encumbrance;
iii. The authorized capital stock of the Company as
of the date of this Agreement consisted of 90,000,000 shares
of Common Stock, of which ______________ shares of Common
Stock are issued and outstanding, and 1,000,000 shares of
Common Stock are reserved for issuance upon the exercise of
options authorized under the Company's option plan; and
5,000,000 shares of Preferred Stock, none of which are issued
and outstanding; no more than 250,000 shares of the Company's
capital sock are issuable upon the exercise of outstanding
warrants or upon the exercise of outstanding options granted
under the Company's option plan or otherwise and there have
been no changes in the authorized and outstanding capital
stock warrants or options of the Company since the date of
this Agreement, except as contemplated by the Registration
Statement and the Prospectus. Each outstanding share of
capital stock is validly authorized, validly
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issued, fully paid, and nonassessable, with no personal
liability attaching to the ownership thereof, has not been
issued and is not owned or held in violation of any preemptive
right of stockholders. To the knowledge of counsel, there is
no commitment, plan, or arrangement to issue, and no
outstanding option, warrant, or other right calling for the
issuance of, any share of capital stock of the Company or any
security or other instrument which by its terms is convertible
into, exercisable for, or exchangeable for capital stock of
the Company, except as set forth above, and except as is
properly described in the Prospectus. There is outstanding no
security or other instrument which by its terms is convertible
into or exchangeable for capital stock of the Company, except
as described in the Prospectus;
iv. To the knowledge of counsel, there is no
litigation, arbitration, claim, governmental or other
proceeding (formal or informal), or investigation pending,
threatened, or proposed (or any basis therefor) with respect
to the Company or any Subsidiary or any of their respective
operations, businesses, properties, or assets, except as is
properly described in the Prospectus or such as individually
or in the aggregate do not now have and will not in the future
have a material adverse effect upon the operations, business,
properties, or assets of the Company or any Subsidiary. To the
knowledge of counsel, neither the Company nor any Subsidiary
is in violation of, or in default with respect to, any law,
rule, regulation, order, judgment, or decree, except as may be
properly described in the Prospectus and does not now have and
will not in the future have a material adverse effect upon the
operations, business, properties, or assets of the Company or
any Subsidiary, nor is the Company or any Subsidiary required
to take any action in order to avoid any such violation or
default;
v. Based upon the certificates received from the
Company's officers, neither the Company, any Subsidiary nor
any other party is now or is expected by the Company to be in
violation or breach of, or in default with respect to,
complying with any material provision of any contract,
agreement, instrument, lease, license, arrangement, or
understanding which is material to the Company or any
Subsidiary;
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vi. Neither the Company nor any Subsidiary is in
violation or breach of, or in default with respect to, any
term of its Articles of Incorporation or by-laws;
vii. The Company has all requisite power and
authority to execute and deliver and to perform thereunder
this Agreement and the Representative's Warrants. All
necessary corporate proceedings of the Company have been taken
to authorize the execution and delivery and performance
thereunder by the Company of this Agreement and the
Representative's Warrants. Each of this Agreement and the
Representative's Warrants have been duly authorized, executed
and delivered by the Company, and is a legal, valid, and
binding obligation of the Company, and (subject to applicable
bankruptcy, insolvency, and other laws affecting the
enforceability of creditors' rights generally) enforceable as
to the Company in accordance with its respective terms. No
consent, authorization, approval, order, license, certificate,
or permit of or from, or declaration or filing with, any
federal, state, local, or other governmental authority or any
court or other tribunal is required by the Company for the
execution or delivery, or performance thereunder by the
Company of this Agreement or the Representative's Warrants
(except filings under the Act which have been made prior to
the Closing Date, and consents consisting only of consents
under "blue sky" or securities laws which are required in
connection with the transactions contemplated by this
Agreement, and which counsel has been advised by counsel to
the Underwriters have been obtained on or prior to the date
the Registration Statement becomes effective under the Act. To
the knowledge of counsel, no consent of any party to any
contract, agreement, instrument, lease, license, arrangement,
or understanding to which the Company or any Subsidiary is a
party, or to which any of their properties or assets are
subject, is required for the execution or delivery, or
performance thereunder of this Agreement or the
Representative's Warrants; and to the knowledge of counsel the
execution and delivery and performance thereunder of this
Agreement and the Representative's Warrants will not violate,
result in a breach of, conflict with, or (with or without the
giving of notice or the passage of time or both) entitle any
party to terminate or call a default under any such contract,
agreement, instrument, lease, license, arrangement,
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or understanding, or to the knowledge of counsel violate or
result in a breach of any term of the Articles of
Incorporation or by-laws of the Company or any Subsidiary, or
violate, result in a breach of, or conflict with any law,
rule, regulation, order, judgment, or decree binding on the
Company or any Subsidiary or to which any of their operations,
businesses, properties, or assets are subject;
viii. The Shares are, and the Representative's
Warrant Shares will be upon exercise of the Representative's
Warrants, validly authorized, validly issued, fully paid, and
nonassessable and are not issued in violation of any
preemptive rights of shareholders, and the Underwriters will
have received good title to the Shares purchased by them from
the Company upon payment therefor, free and clear of all
liens, security interests, pledges, charges, encumbrances,
shareholders' agreements, and voting trusts. The
Representative's Warrant Shares have been duly and validly
reserved for issuance pursuant to the terms of the
Representative's Warrants. The Shares, the Representative's
Warrants and the Representative's Warrant Shares conform to
all statements relating thereto contained in the Registration
Statement or the Prospectus;
ix. To the knowledge of counsel, all contracts,
agreements, instruments, leases, and licenses that are
required to be described in the Registration Statement or the
Prospectus have been properly described therein. To the
knowledge of counsel, all contracts, agreements, instruments,
leases, or licenses required to be filed as an exhibit to the
Registration Statement have been filed with the Commission as
an exhibit to or have been incorporated as an exhibit by
reference into the Registration Statement;
x. Insofar as statements in the Prospectus purport to
summarize the status of litigation or the provisions of laws,
rules, regulations, orders, judgments, decrees, contracts,
agreements, instruments, leases, or licenses such statements
have been prepared or reviewed by such counsel and to the
knowledge of such counsel accurately reflect the status of
such litigation and provisions purported to be summarized, are
correct in all material respects; and the Company and its
Subsidiaries are in compliance with all such provisions;
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xi. Except as provided in the Registration Statement,
no person or entity has the right to require registration of
shares of Common Stock or other securities of the Company
because of the filing or effectiveness of the Registration
Statement;
xii. The Registration Statement has become effective
under the Act. No Stop Order has been issued and no
proceedings for that purpose have been instituted or
threatened;
xiii. The Registration Statement and the Prospectus,
and any amendment or supplement thereto, comply as to form in
all material respects with the requirements of the Act and the
Regulations;
xiv. Such counsel has no knowledge that either the
Registration Statement or the Prospectus, or any amendment or
supplement thereto, contains any untrue statement of a
material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading (except that no opinion need be expressed as to the
consolidated financial statements and other financial data and
schedules which are or should be contained therein);
xv. Such counsel has no knowledge of any event which
has occurred since the Effective Date which should have been
set forth in an amendment or supplement to the Registration
Statement or the Prospectus that has not been set forth in
such an amendment or supplement;
xvi. To the knowledge of counsel, the Company is not
currently offering any securities for sale except as described
in the Registration Statement;
xvii. Such counsel has no knowledge of any promoters,
affiliates, parents or subsidiaries of the Company except as
are described in the Registration Statement;
xviii. To the knowledge of counsel, the Company and
its Subsidiaries own or possess, free and clear of all liens
or encumbrances and rights thereto or therein by third
parties, the requisite licenses or other rights to use all
trademarks, copyrights, service marks, service names, trade
names and licenses necessary to conduct business (including
without limitation, any such licenses or rights described in
the Registration Statement as being owned or possessed by the
Company or any Subsidiary) (all of which are collectively
referred to herein as the "Intellectual Property"); there is
no
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actual or, to counsel's knowledge, pending or threatened
claim, proceeding or action by any person pertaining to or
which challenges the exclusive rights of the Company or any
Subsidiary with respect to any of the Company's Intellectual
Property;
xix. The Company is not a party to any agreement
giving rise to any obligation by the Company or any Subsidiary
to pay any third-party royalties or fees of any kind
whatsoever with respect to any technology developed, employed,
used or licensed by the Company or any Subsidiary, other than
is disclosed in the Prospectus;
xx. The Shares are eligible for quotation on the
Nasdaq National Market; and
xxi. To the knowledge of counsel, the issued and
outstanding shares of Common Stock and all other securities
issued and sold or exchanged by the Company were not required
to be registered under any applicable federal securities laws
and regulations when issued and sold or exchanged and were
issued and sold or exchanged in compliance with applicable
exemptions from registration under federal securities laws.
Such opinion shall be governed by, and shall be interpreted in
accordance with, the Legal Opinion Accord (the "Accord") of the ABA
Section of Business Law (1991) and shall be subject to the
qualifications, exceptions, definitions, limitations on coverage and
other limitations set forth therein and in such opinion. Qualifications
in such opinion as to knowledge or the absence of knowledge shall be
based upon and limited to the "Actual Knowledge" (as defined in the
Accord) of the "Primary Lawyer Group" (as identified in such opinion).
In rendering such opinion, such legal counsel shall be entitled to rely
upon Public Authority Documents and upon information provided by client
officials in written Certificates provided that copies of such Public
Authority Documents and Certificates are attached as exhibits to the
written opinion of legal counsel. The term "Public Authority Documents"
shall have the meaning ascribed to it in the Legal Opinion Accord of
the ABA Section of Business Law (1991).
c. On or prior to the Closing Date and any Additional Closing
Date, as the case may be, you shall have been furnished such
information, documents, certificates, and opinions as you may
reasonably require for the purpose of enabling you to review the
matters
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referred to in this Section 7, and in order to evidence the accuracy,
completeness, or satisfaction of any of the representations,
warranties, covenants, agreements, or conditions herein contained, or
as you may reasonably request.
d. At the Closing Date and any Additional Closing Date, as the
case may be, you shall have received a certificate of the chief
executive officer and of the chief financial officer of the Company,
dated the Closing Date or such Additional Closing Date, as the case may
be, to the effect that the conditions set forth in Section 7(a) have
been satisfied, that as of the date of this Agreement and as of the
Closing Date or such Additional Closing Date, as the case may be, the
representations and warranties of the Company contained herein were and
are accurate, and that as of the Closing Date or such Additional
Closing Date, as the case may be, the obligations to be performed by
the Company hereunder on or prior thereto have been fully performed.
e. At the time this Agreement is executed and at the Closing
Date and any Additional Closing Date, as the case may be, you shall
have received letters from ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ PC,
Certified Public Accountants, addressed to you and dated the date of
delivery but covering a period within three business days of such date,
in form and substance satisfactory to you.
f. All proceedings taken in connection with the issuance,
sale, transfer, and delivery of the Firm Shares and the Additional
Shares shall be satisfactory in form and substance to you and to
counsel for the Representative, and you shall have received a favorable
opinion from counsel to the Company, dated as of the Closing Date or
the Additional Closing Date, as the case may be, with respect to such
of the matters set forth under Sections 7(b) and with respect to such
other related matters as you may reasonably request.
g. The NASD, upon review of the terms of the public offering
of the Firm Shares and the Additional Shares shall not have objected to
your participation in such offering.
h. The Company shall have received notice that the Common
Stock will be quoted on the Nasdaq National Market as of the Effective
Date.
Any certificate or other document signed by any officer of the Company
and delivered to you or to counsel for the Representative shall be deemed a
representation and warranty by such officer
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individually and by the Company hereunder to the Representative as to the
statements made therein. If any condition to your obligations hereunder to be
fulfilled prior to or at the Closing Date or any Additional Closing Date, as the
case may be, is not so fulfilled, you may terminate this Agreement or, if you so
elect, in writing waive any such conditions which have not been fulfilled or
extend the time for their fulfillment.
8. Indemnification and Contribution.
a. Subject to the conditions set forth below, the Company
agrees to indemnify and hold harmless the Underwriters, the
Representative, and each of their officers, directors, partners,
employees, agents, and counsel, and each person, if any, who controls
the Representative or any one 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 this Section 8, but not be limited
to, attorneys' fees, expert witness 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 this Section 8
collectively called an "application") in any jurisdiction in order to
qualify the Common Stock 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 this Agreement. The
foregoing agreement to indemnify shall be in addition to any liability
the Company may otherwise have, including liabilities arising under
this Agreement; however, the Company shall have no liability under this
Section 8 if such statement or omission was made in reliance upon and
in conformity with written information furnished to the Company as
stated in Section 8(b) with respect to the Underwriters by or on behalf
of the Underwriters expressly for inclusion in any
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34
Preliminary Prospectus, the Registration Statement, or the Prospectus,
or any amendment or supplement thereto, or in any application, as the
case may be.
If any action is brought against the Underwriters, the
Representative or any of their officers, directors, partners,
employees, agents, or counsel, or any controlling persons of an
Underwriter or the Representative (an "indemnified party") in respect
of which indemnity may be sought against the Company pursuant to the
foregoing paragraph, such indemnified party or parties shall promptly
notify the Company in writing of the institution of such action (but
the failure so to notify shall not relieve the Company from any
liability it may have other than pursuant to this Section 8(a)) and the
Company shall promptly assume the defense of such action, including the
employment of counsel (satisfactory to such indemnified party or
parties) and payment of expenses. Such indemnified party or parties
shall have the right to employ its or their own counsel in any such
case, but the fees and expenses of such counsel shall be at the expense
of such indemnified party or parties unless the employment of such
counsel shall have been authorized in writing by the Company in
connection with the defense of such action or the Company shall not
have promptly employed counsel satisfactory to such indemnified party
or parties to have charge of the defense of such action or such
indemnified party or parties shall have reasonably concluded that there
may be one or more legal defenses available to it or them or to other
indemnified parties which are different from or additional to those
available to the Company, in any of which events such fees and expenses
shall be borne by the Company. Anything in this paragraph to the
contrary notwithstanding, the Company shall not be liable for any
settlement of any such claim or action effected without its written
consent. The Company agrees promptly to notify the Underwriters and the
Representative of the commencement of any litigation or proceedings
against the Company or against any of its officers or directors in
connection with the sale of the Shares, any Preliminary Prospectus, the
Registration Statement, or the Prospectus, or any amendment or
supplement thereto, or any application.
b. The Underwriters agree to indemnify and hold harmless the
Company, the Company's counsel, 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
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35
same extent as the foregoing indemnity from the Company to the
Underwriters in Section 8(a), 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 written
information furnished to the Company as stated in this Section 8(b)
with respect to the Underwriters by or on behalf of the Underwriters
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; provided, however, that the
obligation of the Underwriters to provide indemnity under the
provisions of this Section 8(b) shall be limited to the amount which
represents the product of the number of Firm Shares and Additional
Shares sold hereunder and the initial public offering price per Share
set forth on the cover page of the Prospectus. For all purposes of this
Agreement, the amounts of the selling concession and reallowance set
forth in the Prospectus, the information under "Underwriting" and the
identification of counsel to the Representative under "Legal Matters"
constitute the only information furnished in writing by or on behalf of
the Underwriters expressly for inclusion in any Preliminary Prospectus,
the Registration Statement, or the Prospectus (as from time to time
amended or supplemented), or any amendment or supplement thereto, or in
any application, as the case may be. If any action shall be brought
against the Company or any other person so indemnified based on any
Preliminary Prospectus, the Registration Statement, or the Prospectus,
or any amendment or supplement thereto, or any application, and in
respect of which indemnity may be sought against the Underwriters
pursuant to this Section 8(b), the Underwriters shall have the rights
and duties given to the Company, 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).
c. In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in this
Section 8 is for any reason held to be unavailable to the Underwriters
or the Company, then the Company shall contribute to the damages paid
by the several Underwriters, and the several Underwriters shall
contribute to the damages paid by the Company; provided, however, that
no person guilty of fraudulent
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misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. In determining the amount of
contribution to which the respective parties are entitled, there shall
be considered the relative benefits received by each party from the
sale of the Firm Shares and Additional Shares (taking into account the
portion of the proceeds of the offering realized by each), the parties'
relative knowledge and access to information concerning the matter with
respect to which the claim was asserted, the opportunity to correct and
prevent any statement or omission, and any other equitable
considerations appropriate in the circumstances. The Company and the
Underwriters agree that it would not be equitable if the amount of such
contribution were determined by pro rata or per capita allocation (even
if the Underwriters were treated as one entity for such purpose). No
Underwriter or person controlling such Underwriter shall be obligated
to make contribution hereunder which in the aggregate exceeds the total
public offering price of the Firm Shares and Additional Shares
purchased by such Underwriter under this Agreement, less the aggregate
amount of any damages which such Underwriter and its controlling
persons have otherwise been required to pay in respect of the same or
any substantially similar claim. The Underwriters' obligations to
contribute hereunder are several in proportion to their respective
underwriting obligations and not joint. For purposes of this Section,
each person, if any, who controls an Underwriter within the meaning of
Section 15 of the Act shall have the same rights to contribution as
such Underwriter, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any,
who controls the Company within the meaning of Section 15 of the Act,
shall have the same rights to contribution as the Company. Anything in
this Section 8(c) to the contrary notwithstanding, no party shall be
liable for contribution with respect to the settlement of any claim or
action effected without its written consent. This Section 8(c) is
intended to supersede any right to contribution under the Act, the
Exchange Act, or otherwise.
9. Representations and Agreements to Survive Delivery. All
representations, warranties, covenants, and agreements contained in this
Agreement shall be deemed to be representations, warranties, covenants, and
agreements at the Closing Date and any Additional Closing Date, and such
representations, warranties, covenants, and agreements of the Underwriters and
the Company,
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including the indemnity and contribution agreements contained in Section 8,
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of the Representative, the Underwriters or
any indemnified person, or by or on behalf of the Company or any person or
entity which is entitled to be indemnified under Section 8(b), and shall survive
termination of this Agreement or the delivery of the Firm Shares and Additional
Shares to the Underwriters for a period equal to the statute of limitations for
claims related hereto, but not to exceed an aggregate of five years from the
date hereof.
10 . Effective Date of This Agreement and Termination Thereof.
a. This Agreement shall be executed within 24 hours of the
Effective Date of the Registration Statement and shall become effective
on the Effective Date or at the time of the initial public offering of
the Shares, whichever is earlier. The time of the initial public
offering shall mean the time, after the Registration Statement becomes
effective, of the release by the Representative for publication of the
first newspaper advertisement which is subsequently published relating
to the Shares or the time, after the Registration Statement becomes
effective, when the Shares are first released by the Representative for
offering by dealers by letter or telegram, whichever shall first occur.
The Representative or the Company may prevent this Agreement from
becoming effective without liability of any party to any other party,
except as noted below in this Section 10, by giving the notice
indicated in Section 10(c) before the time this Agreement becomes
effective.
b. The Representative shall have the right to terminate this
Agreement at any time prior to the Closing Date or any Additional
Closing Date, as the case may be, by giving notice to the Company if
there shall have been a general suspension of, or a general limitation
on prices for, trading in securities on the New York Stock Exchange or
the American Stock Exchange or in the over-the-counter market; or if
there shall have been an outbreak of major hostilities or other
national or international calamity; or if a banking moratorium has been
declared by a state or federal authority; or if a moratorium in foreign
exchange trading by major international banks or persons has been
declared; or if there shall have been a material interruption in the
mail service or other means of communication within the United States;
or if the Company shall have sustained a material or substantial loss
by fire, flood, accident, hurricane, earthquake, theft, sabotage, or
other calamity or malicious act
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which, whether or not such loss shall have been insured, will, in the
Representative's opinion, make it inadvisable to proceed with the
offering, sale, or delivery of the Firm Shares and Additional Shares,
as the case may be; or if there shall have been such material and
adverse change in the market for securities in general so as to make it
inadvisable to proceed with the offering, sale, and delivery of the
Shares, as the case may be, on the terms contemplated by the Prospectus
due to the impaired investment quality of the Shares; or if the Dow
▇▇▇▇▇ Industrial Average or the Nasdaq Composite Index shall have
fallen by 15% or more from its closing price on the day immediately
preceding the date that the Registration Statement is declared
effective by the Commission.
c. If the Representative elects to prevent this Agreement from
becoming effective as provided in this Section 10, or to terminate this
Agreement, it shall notify the Company promptly by telephone, telex, or
telegram, confirmed by letter. If, as so provided, the Company elects
to prevent this Agreement from becoming effective, the Company shall
notify the Representative promptly by telephone, telex, or telegram,
confirmed by letter.
d. If, prior to Closing, the Company is acquired, merges,
sells all or substantially all of its assets or otherwise effects a
corporate reorganization with any other entity and, as a result, the
offering is abandoned by the Company, then the Company shall pay the
Representative a financial advisory of fee of $100,000 (One Hundred
Thousand Dollars) which the Company and the Representative agree is
fair compensation to the Representative. The Representative shall act
as the Company's investment banker in connection with any such
acquisition and render such services as are customary in connection
therewith in consideration for this fee. Any fee payable with respect
to a fairness opinion shall be in addition to the advisory fee
discussed above.
e. Anything in this Agreement to the contrary notwithstanding
other than Section 10(e), if this Agreement shall not become effective
by reason of an election pursuant to this Section 10 or if this
Agreement shall terminate or shall otherwise not be carried out prior
to __________ because (i) of any reason solely within the control of
the Company or its stockholders and not due to the breach of any
representation, warranty or covenant or bad faith of the
Representative, (ii) the Company unilaterally withdraws the proposed
public offering from the Representative in favor of another
underwriter, (iii) the Company does not
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permit the Registration Statement to become effective, (iv) of any
material discrepancy in any representation by the Company and/or its
officers, directors, stockholders, agents, advisers or representatives,
made in writing, including but not limited to the Registration
Statement, to the Representative, (v) the Company is, directly and/or
indirectly, negotiating with other persons or entities of whatsoever
nature relating to a possible public offering of its securities, or
(vi) of any failure on the part of the Company to perform any covenant
or agreement or satisfy any condition of this Agreement by it to be
performed or satisfied, then, in any of such events, the Company shall
be obligated to reimburse the Representative for its out-of-pocket
expenses on an accountable basis including, without limitation, its
legal fees and disbursements, but not to exceed an aggregate of $30,000
in excess of the advances paid by the Company to the Representative in
accordance with Section 6 hereof, (2) pay all "blue sky" filing fees
and expenses, including "blue sky" legal fees of the Representative's
counsel retained by the Company for such purpose, and (3) indemnify and
hold harmless the Representative for any expenses incurred by the
Company in connection with the offering including, but not limited to,
printing expenses and the Company's accounting and legal fees. Should
the Representative be required to account for "out-of-pocket" expenses,
any expense incurred by the Representative shall be deemed to be
reasonable and unobjectionable upon a reasonable showing by the
Representative that such expenses were incurred, directly or
indirectly, in connection with the proposed offering and/or
relationship of the parties hereto, as described herein. The
Representative will return to the Company any portion of the $40,000
payment previously received that is not used in the payment of
accountable expenses if the offering is not completed.
f. Notwithstanding any election hereunder or any termination
of this Agreement, and whether or not this Agreement is otherwise
carried out, the provisions of Sections 5(a), 6, 8, 9, and 10 shall not
be in any way affected by such election or termination or failure to
carry out the terms of this Agreement or any part hereof.
11. Notices. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing and, if sent to the
Representative, shall be mailed, delivered, or sent by facsimile transmission
and confirmed by original letter, to ▇▇▇▇▇▇▇▇▇ Securities, Inc., ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇, with a copy to
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇; or if sent to the Company shall be mailed, delivered, or
telexed or telegraphed and confirmed by letter, to Glacier Corporation, ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attn: ______________, with
a copy to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Berliner, ▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, P.C.,
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. All notices hereunder
shall be effective upon receipt by the party to which it is addressed. 12.
Parties. This Agreement shall inure solely to the benefit of, and shall be
binding upon, the Underwriters, the Company, and the persons and entities
referred to in Section 8 who are entitled to indemnification or contribution,
and their respective successors, legal representatives, and assigns (which shall
not include any buyer, as such, of the Firm Shares and Additional Shares) and no
other person shall have or be construed to have any legal or equitable right,
remedy, or claim under or in respect of or by virtue of this Agreement or any
provision herein contained.
13. Construction. This Agreement shall be construed in accordance with
the laws of the State of Colorado, without giving effect to conflict of laws.
Time is of the essence in this Agreement. The parties acknowledge that this
Agreement was initially prepared by the Representative, and that all parties
have read and negotiated the language used in this Agreement. The parties agree
that, because all parties participated in negotiating and drafting this
Agreement, no rule of construction shall apply to this Agreement which construes
ambiguous language in favor of or against any party by reason of that party's
role in drafting this Agreement.
If the foregoing correctly sets forth the understanding between us,
please so indicate in the space provided below for that purpose, whereupon this
letter shall constitute a binding agreement between us.
Very truly yours,
GLACIER CORPORATION
By:
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Executive Officer
Accepted as of the date first above written.
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Denver, Colorado
▇▇▇▇▇▇▇▇▇ SECURITIES, INC.
for itself and any other Underwriters:
By:
-----------------------------------------------------
▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇, President
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GLACIER CORPORATION
(a Colorado corporation)
SCHEDULE 1
This Schedule sets forth the name of each Underwriter referred to in
the Underwriting Agreement and the number of Shares to be sold by each
underwriter.
Number of
Name Shares
---- ------
▇▇▇▇▇▇▇▇▇ Securities, Inc.
Total 3,000,000
=========
42
