RETROSPETTIVA, INC.
500,000 UNITS
AGREEMENT AMONG UNDERWRITERS
To each of the Underwriters named __________, 1997
in Schedule I to the attached
Underwriting Agreement
Dear Sirs:
1. UNDERWRITING AGREEMENT. Retrospettiva, Inc., a California corporation
(the "Company") proposes to enter into an underwriting agreement in the form of
the Underwriting Agreement attached hereto (the "Underwriting Agreement") with
the underwriters named in Schedule I to the Underwriting Agreement (the
"Underwriters") for whom we are acting as representative (the "Representative"),
acting severally and not jointly, with respect to the purchase from the Company
of an aggregate of 500,000 units (the "Firm Units"), each unit ("Unit")
consisting of two (2) shares of the Company's no par value Common Stock (the
"Common Stock"), and one redeemable Common Stock Warrant entitling the holder
thereof to purchase for $7.50, one share of Common Stock for a term of five
years from the effective date of the Registration Statement described below in
Section 2. In addition, the Company proposes to sell to the Underwriters up to
an additional 75,000 Units (the "Optional Units") for the purpose of covering
over-allotments.
Under the terms of the Underwriting Agreement, each of the Underwriters
will agree, in accordance with the terms thereof, to purchase on a firm
commitment basis the number of Units set forth opposite its name in said
Schedule I, subject to adjustment pursuant to Section 12 hereof.
2. REGISTRATION STATEMENT AND PROSPECTUS. The Units are described in a
registration statement on Form SB-2 (File No. 333-________) and related
prospectus which have been filed by the Company with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended (the
"Act") and the rules and regulations of the Commission thereunder. A copy of
Amendment No. 1 to the registration statement has been delivered to you. An
additional amendment to such registration statement has been or will be filed in
which you have been or will be named as one of the Underwriters of the Units,
and you hereby authorize us to approve on your behalf any further amendments or
supplements which may be necessary or appropriate. The registration statement,
as amended at the time it becomes effective, is called the "Registration
Statement" and the final prospectus as filed by the Company with the Commission
pursuant to Rule 424(b) under the Act, is referred to as the "Prospectus."
3. AUTHORITY OF REPRESENTATIVE. You authorize us as your Representative
to execute the Underwriting Agreement with the Company in the form attached with
such insertions, deletions or other changes as we may approve (but not as to
price and number of the Units to be purchased by you except as provided herein
and therein) and to take such actions as in our discretion we may deem advisable
in respect of all matters pertaining to the Underwriting Agreement, this
Agreement, and the transactions for the accounts of the several Underwriters
contemplated thereby and hereby, determining whether and to what extent to
purchase the Optional Units on behalf of the Underwriters, and the purchase,
carrying, sale and distribution of the Units.
4. PUBLIC OFFERING. In connection with any public offering of the Units,
you authorize us, in our discretion:
(a) To determine the time and manner of the initial public offering
(after the Registration Statement becomes effective), the initial public
offering price, and the concessions and reallowances to dealers, to change the
public offering price and such concessions and reallowances after the initial
public offering, to furnish the Company with the information to be included in
the Registration Statement and the Prospectus and any amendment or supplement
thereto with respect to the terms of the offering, and to determine all matters
relating to the public advertisement of the Units and any communications with
dealers or others;
(b) To reserve all or any part of your Units for sale to retail
purchasers and to dealers selected by us ("Selected Dealers") among whom may be
included any Underwriter (including ourselves) and each of whom shall be a
member of the National Association of Securities Dealers, Inc., such
reservations for sales to retail purchasers to be as nearly as practicable in
proportion to the respective underwriting obligations of the Underwriters and
such reservations for sales to Selected Dealers to be in such proportion as we
determine, and from time to time to add to the reserved Units such aggregate
number of Units retained by you remaining unsold and to release to you any of
your Units reserved but not sold;
(c) To sell reserved Units, as nearly as practicable in proportion to
the respective reservations, to retail purchasers at the public offering price
and to Selected Dealers at the public offering price less a concession (the
"Selected Dealer's Concession") pursuant to the Selling Agreement in
substantially the form attached; and
(d) To buy Units for your account from Selected Dealers at the public
offering price less such amount not in excess of the Selected Dealer's
Concession as we may determine.
After advice from us that the Units are released for public offering, you
will offer to the public in conformity with the terms of the offering set forth
in the Prospectus, or in any amendment or supplement thereto, such of your Units
as we advise you are not reserved.
You recognize the importance of a broad distribution of the Units among
bona fide investors and you agree to use your best efforts to obtain such broad
distribution, and to that end, to the extent you deem practicable, to give
priority to small orders. In offering the Units to Selected Dealers we will
take such action as we deem appropriate to effect a broad distribution.
5. REPURCHASE OF UNITS NOT EFFECTIVELY PLACED FOR INVESTMENT. You are
requested to place for investment those of your Units which are not reserved as
aforesaid. Any Units sold by you (otherwise than through us) which may be
delivered to us against a purchase contract made by us for the account of any
Underwriter prior to the termination of the provisions referred to in Section 11
of this Agreement, shall be repurchased by you on demand at the cost of such
purchase plus brokerage commissions and transfer taxes on redelivery. Units
delivered on such repurchase need not be the identical Units purchased by you.
In lieu of demanding repurchase by you we may in our discretion (a) sell for
your account the Units so purchased by us, at such price and upon such terms as
we may determine, and debit or credit your account with the loss and expense or
net profit resulting from such sale, or ((b) charge your account with an amount
not in excess of the Selected Dealer's Concession with
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respect to such Units plus brokerage commissions and transfer taxes paid in
connection with such purchase.
6. PAYMENT AND DELIVERY. You agree to deliver to us at or before 8:00
a.m., Pacific Daylight Savings Time, on the Initial Closing Date referred to in
the Underwriting Agreement, a certified check or bank cashier's check payable in
Clearing House funds to the order of Kensington Securities, Inc., as
Representative, for the full purchase price of the Units which you shall have
agreed to purchase from the Company. The proceeds shall be delivered in the
amounts required in each case for payment of the full purchase price by us to
the Company against delivery of the Units to us for your account. You authorize
us to accept that delivery and to give a receipt therefore. We may in our
discretion make such payment on your behalf with our own funds, in which event
you will reimburse us promptly upon request. You authorize us, as your
custodian, to take delivery of your Units registered as we may direct, in order
to facilitate deliveries. You also authorize us to hold for your account such
of your Units as we have reserved for sale to retail purchasers and to Selected
Dealers and to deliver your reserved Units against such sales. We will deliver
your unreserved Units to you promptly and, after we receive payment for reserved
Units sold by us for your account, we will remit to you an amount equal to the
price paid by you for such Units. As soon as practicable after termination of
Sections 4, 5 and 9 and the first sentence of Section 8 of this Agreement
(pursuant to Section 11 hereof) we will deliver to you any of your Units
reserved but not sold. All Units delivered to you pursuant to this Section will
be evidenced by certificates in such denominations as you shall direct by
written notice received by us not later than the third full business day
preceding the Initial Closing Date.
7. AUTHORITY TO BORROW. In connection with the purchase or carrying of
any Units purchased hereunder for your account, you authorize us, in our
discretion, to advance funds for your account, charging current interest rates,
or to arrange loans for your account, and in connection therewith to execute and
deliver any notes or other instruments and hold or pledge as security any of
your Units. Any lender may rely on our instructions in all matters relating to
any such loans. Any of your Units held by us for your account may be delivered
to you for carrying purposes only, and subject to our further direction.
8. STABILIZATION AND OVER-ALLOTMENT. To facilitate the distribution of
the Units, you authorize us during the term of this Agreement, or for such
longer period as may be necessary, in our discretion, and without obligating us
to do so, to make purchases and sales of the Units for your account in the open
market or otherwise, for long or short account, on such terms and at such prices
as we deem advisable and, in arranging sales, to over-allot. You also authorize
us to cover any short position incurred pursuant to this Section by purchase of
any or all of the Optional Units from the Company pursuant to the option
contained in the Underwriting Agreement or otherwise on such terms as we deem
advisable. All such purchases and sales and over-allotments shall be made for
the accounts of the several Underwriters as nearly as practicable in proportion
to their respective underwriting obligations. You will on our demand take up at
cost or deliver against payment any Units so purchased or sold or over-allotted
for your account. You will be obligated in respect of purchases and sales made
for your account hereunder whether or not the proposed purchase of the Units is
consummated. Your net commitment shall not, at the end of any business day,
exceed 15% of your maximum underwriting obligation. Notwithstanding the
foregoing limitations, in the event of default by one or more Underwriters in
respect of their obligations under this Section, you will assume your
proportionate Unit of such obligation without relieving the defaulting
Underwriter from liability.
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In the event that we effect any stabilizing purchases pursuant to this
Section, we will notify each Underwriter promptly of the date and time when the
first stabilizing purchase is effected and the date and time when stabilizing is
terminated. Each Underwriter agrees that if it effects any stabilizing
purchases, it will, not later than three business days following the day on
which any such stabilization purchase is effected, notify us of the price, date
and time at which such stabilizing purchase was effected and will promptly
notify us of the date and time when stabilizing was terminated by such
Underwriter. Each Underwriter authorizes us to file with the Commission all
notices and reports which may be required as a result of any transactions made
pursuant to this Section.
Upon request you will advise us of Units retained by you or purchased by
you from other Underwriters and Selected Dealers and remaining unsold and will
sell to us for the account of one or more of the Underwriters such of your
unsold Units as we may designate, at the public offering price thereof less such
amount as we may determine, but not in excess of the Selected Dealer's
Concession with respect thereto.
If, pursuant to the provisions of the first paragraph of this Section and
prior to the termination of this Agreement (or such earlier date as we may have
determined on notice to the Underwriters), we purchase or contract to purchase
any Units which were retained by or released to you for direct sale, which Units
were theretofore not effectively placed for investment by you, you authorize us
in our discretion either to charge your account with an amount equal to the
Selected Dealer's Concession with respect thereto or to require you to
repurchase such Units at a price equal to the total cost of such purchase,
including commissions, if any, and transfer tax on the redelivery. Units
delivered on such repurchase need not be the identical Units originally
purchased by and delivered to you.
Upon the termination of this Agreement, we are authorized in our
discretion, in lieu of delivering to the several Underwriters any Units then
held for their respective accounts pursuant to this Section, to sell such Units
for the accounts of each of the Underwriters at such price or prices as we may
determine and debit or credit your account for the loss or profit resulting from
such sale.
9. OPEN MARKET TRANSACTION. We and you agree not to bid for, purchase,
attempt to induce others to purchase or sell, directly or indirectly, any Units
except as brokers pursuant to unsolicited orders and as otherwise provided in
this Agreement or in the Underwriting Agreement. You further agree not to offer
the Units for sale until notified by us, as Representative, that they are
released for that purpose.
10. EXPENSES AND SETTLEMENT. We may charge your account with Selected
Dealer's Concessions and all transfer taxes on sales made by us for your account
and with your proportionate share (based upon your underwriting obligation) of
all other expenses incurred by us under the terms of this Agreement or the
Underwriting Agreement or in connection with the purchase, carrying, sale or
distribution of the Units. Our determination of the amount and allocation of
the expenses shall be conclusive. As soon as practicable after termination of
the provisions referred to in Section 11, the accounts hereunder will be
settled, but we may reserve from distribution such amount as we deem advisable
to cover possible additional expenses. We may at any time make partial
distribution of credit balances or call for payment of debit balances. Any of
your funds in our hands may be held with our general funds without
accountability for interest. Notwithstanding any settlement, you will pay (a)
your proportionate share (based upon your underwriting obligation) of any
liability which may be incurred by the Underwriters, or any of them, based on
the claim that the Underwriters constitute an association,
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partnership, unincorporated business or other separate entity, and of any
expenses incurred by us, or by any other Underwriter with our approval, in
contesting any such liability, and (b) any transfer taxes which may be
assessed and paid after such settlement on account of any sale or transfer
for your account.
11. TERMINATION. The provisions of Sections 4, 5 and 9 and the first
sentence of Section 8 of this Agreement shall terminate 30 days after the date
of this Agreement unless extended by us. We may extend said provisions for
periods not exceeding an additional 30 days in the aggregate, provided that the
Selected Dealers Agreements, if any, are similarly extended. Whether extended
or not, said provisions may be terminated in part or in whole by notice from us
to the effect that the provisions referred to in this Section 11 have been so
terminated.
12. DEFAULT BY UNDERWRITERS. Default by one or more Underwriters
hereunder or under the Underwriting Agreement shall not release the other
Underwriters from their obligations or affect the liability of any defaulting
Underwriter to the other Underwriters for damages resulting from such default.
In case of default under the Underwriting Agreement by one or more Underwriters,
we may arrange for the purchase by others, including non-defaulting
Underwriters, of Units not taken up by such defaulting Underwriters, and you
will, at our request, increase pro rata with the other non-defaulting
Underwriters the number of Units which you are to purchase. In the event any
such arrangements are made, the respective number of Units to be purchased by
non-defaulting Underwriters and by such others shall be taken as the basis for
the Underwriters and by such others shall be taken as the basis for the
underwriting obligations under this Agreement.
In the event of default by one or more Underwriters in respect of their
obligations under this Agreement, each non-defaulting Underwriter shall assume
its proportionate share of the obligations under this Agreement of each such
defaulting Underwriter (other than, to the extent stated in the first paragraph
of this Section, the purchase obligation of such defaulting Underwriter).
13. POSITION OF REPRESENTATIVE. We shall be under no liability to you for
any act or omission, except for obligations expressly assumed by us in this
Agreement, but no obligation on our part shall be implied or inferred therefrom.
Nothing shall constitute the Underwriters, or any of them, an association,
partnership, unincorporated business or other separate entity and the rights and
liability of ourselves and each of the other Underwriters are several and not
joint.
14. INDEMNIFICATION. You will indemnify and hold harmless each other
Underwriter and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Securities Act of 1933, as amended, to the extent
and upon the terms by which each Underwriter agrees to indemnify the Company in
the Underwriting Agreement. Such indemnity agreement shall survive the
termination of any of the provisions of this Agreement.
In the event that at any time any claim shall be asserted against us, as,
or a result of our having acted as, Representative, or otherwise involving the
Underwriters generally, relating to the Registration Statement or any
preliminary prospectus or the Prospectus, as from time to time amended or
supplemented, the public offering of the Units or any of the transactions
contemplated by this Agreement, you authorize us to make such investigation, to
retain such counsel and to take such other action as we shall deem necessary or
desirable under the circumstances, including settlement of any claim or claims
if such course of action shall be recommended by counsel retained by us. You
agree
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to pay to us, on request, your proportionate share (based upon your
underwriting obligation) of all expenses incurred by us (including, but not
limited to, the disbursements and fees of counsel so retained) in
investigating and defending against such claim or claims, and your
proportionate share (based upon your underwriting obligation) of any
liability incurred by us in respect of such claim or claims, whether such
liability shall be the result of a judgment against us or as a result of any
such settlement.
15. BLUE SKY MATTERS. You shall not have any responsibility with respect
to the right of any Underwriter or other person to sell Units in any
jurisdiction, notwithstanding any information we may furnish in that connection.
You hereby authorize us to file or cause to be filed, on your behalf, a New York
Further State Notice, if required, and to take such other action as may be
necessary or advisable to qualify the Units for offering and sale in any
jurisdiction.
16. TITLE TO SECURITIES. The Units purchased for the respective accounts
of the several Underwriters shall remain the property of those Underwriters
until sold; and no title to such securities shall in any event pass to us, as
Representative, by virtue of any of the provisions of this Agreement.
17. CAPITAL REQUIREMENT. You confirm that your commitment hereunder will
not result in any violation of Section 8(b) or 15(c) of the Securities Exchange
Act of 1934 or the rules and regulations thereunder, including Rule 15c3-1, or
any provision of any applicable rules of any securities exchange to which you
are subject or of any restriction imposed upon you by such exchange.
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18. NOTICES AND GOVERNING LAW. Any notice from you to us shall be
delivered, mailed or telegraphed to us at Kensington Securities, Inc. Any
notice from us to you shall be delivered, mailed or telegraphed to you at your
address as set forth below.
This Agreement shall be governed by and construed in accordance with the
laws of the State of California.
We represent that we are a member in good standing of the National
Association of Securities Dealers, Inc. You represent that you are a member in
good standing of said Association.
Very truly yours,
KENSINGTON SECURITIES, INC.
By
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▇▇▇▇▇▇ ▇▇▇▇▇, President
Confirmed and accepted as of the date
first above written.
By
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Name of Underwriter
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Authorized Signature
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Address
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Telephone Number
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Number of Units Purchased
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