Exhibit 1.2
RIPE TOUCH GREENHOUSES, INC.
825,000 Units Each Consisting of One Share of Common Stock and
One Class A Redeemable Common Stock Purchase Warrant
January ___, 1998
AGREEMENT AMONG UNDERWRITERS
Millennium Securities Corp.
000 X. 00xx Xxxxxx - 38th Floor
New York, New York 10155
Gentlemen:
We wish to confirm as follows the agreement among you, the undersigned, and
the other Underwriters named in Schedule A to the Underwriting Agreement (as
defined hereinafter), as it is to be executed (all such parties being herein
called the "Underwriters"), with respect to the purchase by the Underwriters
severally from Ripe Touch Greenhouses, Inc., a Delaware corporation (the
"Company"), of 825,000 units (the "Units"), each consisting of one share of (the
"Shares") of Common Stock, par value $.001 per share, of the Company (the
"Common Stock"), and one Redeemable Common Stock Class A Purchase Warrant,
which, upon exercise, entitles the owner thereof to purchase one share of Common
Stock (the "Warrant"), and the proposed sale of the Units as hereinafter set
forth. The obligations of the Underwriters to purchase the Shares pursuant to
the Underwriting Agreement are herein called "Underwriting Obligations".
I. Authority and Compensation of Representative. We hereby authorize you,
as our Representative and on our behalf, (a) to enter into an agreement with the
Company substantially in the form attached hereto as Exhibit A (the
"Underwriting Agreement), but with such changes therein, including changes in
those who are to be Underwriters and in the respective numbers Shares and/or
Warrants to be purchased by them, as in your judgment are not materially adverse
to the Underwriters; provided, however, that the number of Shares and/or
Warrants to be purchased by us as set forth in or determined pursuant to the
Underwriting Agreement will not be increased, except as provided herein and in
the Underwriting Agreement, without our consent, (b) to exercise all the
authority and discretion vested in the Underwriters and in you by the provisions
of the Underwriting Agreement, and (c) to take all such action and execute all
such documents and instruments as you in your discretion may deem necessary or
advisable in order to carry out the provisions of the Underwriting Agreement and
this Agreement and the sale and distribution of the Shares and/or Warrants;
provided, however, that the time within which the Registration Statement (as
defined in the Underwriting Agreement) is required to become effective pursuant
to the Underwriting Agreement will not be extended by more than 24 hours without
the approval of a majority in interest of the Underwriters (including you).
As your share of the compensation for your services hereunder, we will pay
you, and we authorize you to charge to our account on the Closing Date and the
Additional Closing Dates referred to in the Underwriting Agreement, a sum equal
to not more than 25% of the underwriting discount per Share or Warrant for each
Share or Warrant which we are then obligated to purchase from the Company
pursuant to the Underwriting Agreement.
We hereby authorize you to furnish such information and to make such
representations to the Securities and Exchange Commission (the "Commission") on
behalf of the undersigned as you in your discretion may deem necessary or
advisable.
II. Public Offering. A public offering of the Shares and Warrants is to be
made, as herein provided, as soon, on or after the effective date of the
Registration Statement, as you deem it advisable so to do. The Shares and
Warrants are to be initially offered to the public at the public offering price
set forth on, or determined pursuant to the disclosure on, the cover page of the
Prospectus (as defined in the Underwriting Agreement). You will advise us by
telegraph or telephone when the Shares and Warrants are released for offering.
We authorize you, as Representative of the Underwriters, after the initial
public offering, from time to time to increase or decrease the public offering
price, in your sole discretion, by reason of changes in general market
conditions or otherwise. The public offering price of the Shares and Warrants at
the time in effect is herein called the "Offering Price".
III. Offering to Dealers and Group Sales. We authorize you to reserve for
offering and sale, and on our behalf to sell, to institutions or other retail
purchasers (such sales being herein called "Group Sales") and to dealers
selected by you (such dealers, among whom any of the Underwriters may be
included, being herein called "Dealers") all or any part of our Shares and/or
Warrants as you may determine. Such sales of Shares and/or Warrants, if any,
shall be made (a) in the case of Group Sales, at the Offering Price, and (b) in
the case of sales to Dealers, at the Offering Price or at the Offering Price
less such concession or concessions as you may from time to time determine.
The aggregate of any Group Sales made for our account shall be as nearly as
practicable in proportion to our underwriting obligations (unless you agree to a
smaller proportion for the account of any Underwriter at the request of such
Underwriter), but it shall not be necessary for each such sale to be made in
such proportion. Any sales to Dealers made for our account shall be as nearly as
practicable in the ratio that the Shares and/or Warrants reserved for our
account for offering to Dealers bears to the aggregate of all Shares and/or
Warrants of all Underwriters so reserved.
You agree to notify us promptly on the date of the public offering as to
the number of Shares and/or Warrants, if any, which we may retain for direct
sale. Prior to the termination of this Agreement, you may reserve for offering
and sale as hereinbefore provided any Shares and/or Warrants remaining unsold
theretofore retained by us and we may, with your consent, retain any Shares
and/or Warrants remaining unsold theretofore reserved by you.
We authorize you to determine the form and manner of any communications or
agreements with Dealers, which may be in the form of the Selling Agreement, or
otherwise, as you may determine. If there shall be any such agreements with
Dealers, you are authorized to act as manager thereunder and we agree, in such
event, to be governed by the terms and conditions of such agreements. You may
arrange for any Underwriter, including yourself, to become one of such Dealers.
Each Underwriter agrees that it will not offer any of the Shares and/or Warrants
for sale at a price below the Offering Price or allow any concession therefrom
except as herein otherwise provided.
It is understood that any Dealer to which an offer may be made as
hereinbefore provided shall be actually engaged in the investment banking or
securities business, shall execute the written agreement prescribed by Section
24(c) of Article III of the Rules of Fair Practice of the National Association
of Securities Dealers, Inc. (the "NASD"), and shall either be a member in good
standing of the NASD or be a foreign dealer or institution not eligible for
membership in the NASD which agrees to make no offers or sales of the Shares
and/or Warrants in the United States, its territories, or its possessions or to
persons who are citizens thereof or residents therein, and, in making sales, to
comply with the NASD's interpretation with respect to Free-Riding and
Withholding and Sections 8, 24, and 36 of the Article III of the NASD's Rules of
Fair Practice as if it were an NASD member and Section 25 of such Article III as
it applies to a non-member broker or dealer in a foreign country. The
Underwriters may allow, and the Dealers, if any may reallow, such concession or
concessions as you may from time to time determine on sales of Shares and/or
Warrants, to any eligible broker or dealer, all subject to the Rules of Fair
Practice of the NASD.
You, as Representative, and any of the Underwriters with your prior
consent, may make purchases or sales of Shares and/or Warrants (c) from or to
any of the other Underwriters, at the Offering Price less all or any part of the
underwriting discount as set forth on, or determined pursuant to the disclosure
on, the cover page of the Prospectus and (d) from or to any of the dealers, at
the Offering Price or at the Offering Price less all or any part of the
concession to Dealers.
We authorize you to determine the form and manner of any public
advertisement of the Shares and/or Warrants.
Nothing contained in this Agreement shall be deemed to restrict our right,
subject to the provisions of this Section 3, to offer our Shares and/or Warrants
prior to the effective date of the Registration Statement, provided that any
such offer shall be made in compliance with any applicable requirements of the
Securities Act of 1933, as amended (the "Act"), and the Securities Exchange act
of 1934, as amended (the "Exchange Act"), and the rules and regulation of the
Commission thereunder and of any applicable state or foreign laws.
IV. Repurchases in the Open Market. Any Shares and/or Warrants sold by us
(otherwise than through you) which, prior to the termination of this Agreement
or such earlier date as you may determine, shall be contracted for or purchased
in the open market by you on behalf of any Underwriter or Underwriters, shall be
repurchased by us on demand at a price equal to the cost of such purchase
(including commissions and taxes paid in connection with such purchase) plus
commissions and taxes on redelivery. Any Shares and/or Warrants delivered on
such repurchase need not be the identical Shares and/or Warrants originally sold
by us. In lieu of delivery of such Shares and/or Warrants to us, you may (a)
sell such Shares and/or Warrants in any manner for our account and charge us
with the amount of any loss or expense, or credit us with the amount of any
profit less any expense, resulting from such sale or, at your option, (b) charge
our account with an amount not in excess of the concession to Dealers on such
Shares and/or Warrants, plus commissions and taxes paid in connection with such
purchase.
V. Delivery and Payment. We agree to deliver to you at or before 8:30 A.M.,
New York City Time, on the Closing Date and any Additional Closing Date referred
to in the Underwriting Agreement, at the office of Millennium Securities Corp.,
000 X. 00xx Xxxxxx - 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, a certified or
official bank check in New York Clearing House funds payable to your order for
an amount equal to the initial public offering price, less the selling
concession, of either (a) the Shares and Warrants which we are then obligated to
purchase pursuant to the Underwriting Agreement or (b) such of our Shares or
Warrants which have not been sold or reserved for sale in Group Sales or to
Dealers, as you direct. The proceeds of such check shall be credited to our
account and applied by you, in the manner provided in the Underwriting
Agreement, to the payment of the purchase price of the Shares and/or Warrants,
against delivery of certificates for such Shares or Warrants to you for our
account. You are authorized to accept such delivery and to give receipts
therefor. If we fail (whether or not such failure shall constitute a default
hereunder) to deliver to you, or you fail to receive, our check for the Shares
and/or Warrants which we have agreed to purchase, at the time and in the manner
provided in this Section 5, you, individually and not as representative of the
Underwriters, are authorized (but shall not be obligated) to make payment for
such Shares and/or Warrants for our account, but any such payment shall not
relieve us of any of our obligations under the Underwriting Agreement or under
this Agreement, and we agree to repay on demand the amount so advanced for our
account (plus interest at then current rates).
Notwithstanding the other provisions of this Section 5, if transactions in
the Shares and/or Warrants can be settled through the facilities of The
Depository Trust Company, payment for and delivery of our Shares and/or Warrants
will be made through the facilities of The Depository Trust Company if we are a
member, unless we have otherwise notified you prior to a date to be specified by
you, or, if we are not a member, settlement may be made through a correspondent
which is a member pursuant to instructions we may send to you prior to such
specified date.
We also agree on demand to take up and pay for or to deliver to you funds
sufficient to pay for at cost any securities purchased by you for our account
pursuant to the provisions of Section 9 hereof, and to deliver to you on demand
any securities sold or over-allotted by you for our account pursuant to any
provision of this Agreement. We also authorize you to deliver our Shares and/or
Warrants and any other securities purchased by you for our account pursuant to
the provisions of Section 9 hereof, against sales made by you for our account
pursuant to any provision of this Agreement.
Upon receipt by you of payment for the Shares and/or Warrants sold by or
though you for our account, you will (c) with respect to such Shares and/or
Warrants paid for by us, remit to us promptly an amount equal to the purchase
price paid by us for such Shares and/or Warrants and credit or debit our account
on your books with the difference between the selling price and the purchase
price of such Shares and/or Warrants as set forth in or determined pursuant to
Section 5 of the Underwriting Agreement and (d) with respect to such Shares
and/or Warrants not paid for by us, credit or debit our account on your books
with the difference between the selling price and the purchase price of such
Shares and/or Warrants as set forth in or determined pursuant to Section 5 of
the Underwriting Agreement. You agree to cause to be delivered to us, as soon as
practicable after the Closing Date or any Additional Closing Date, as the case
may be, referred to in the Underwriting Agreement, such part of our Shares
and/or Warrants as shall not have been sold or reserved for sale by you for our
account.
In case any Shares and/or Warrants reserved for sale in Group Sales or to
Dealers shall not be purchased and paid for in due course as contemplated
hereby, we agree (e) to accept delivery when tendered by you of any Shares
and/or Warrants so reserved for our account and not so purchased and paid for
and (f) in case we shall have received payment from you in respect of any such
Shares and/or Warrants, to reimburse you on demand for the full amount which you
shall have paid us in respect of such Shares and/or Warrants.
VI. Authority to Borrow. We authorize you (to the extent permitted by law)
to advance your funds for our account (charging then current interest rates) and
to arrange loans and to purchase funds for our account for the purpose of
carrying out this Agreement and in connection therewith to execute and deliver
any notes or other instruments and to hold or pledge as security therefor all or
any part of the Shares and/or Warrants purchased by us pursuant to the
Underwriting Agreement or any other securities purchased by you for our account
pursuant to the provisions of Section 9 hereof as you shall determine in your
discretion. Any lending bank is hereby authorized to accept your instructions as
Representative in all matters relating to such loans and purchase of funds. We
will repay on demand any such advances, loans, or purchases, including interest
thereon at then current rates.
VII. Allocation of Expense and Liability. We authorize you to charge our
account with and we agree to pay (a) all transfer taxes on sales made by you for
our account, except as herein otherwise provided, and (b) our proportionate
share (based on our underwriting obligations) of all expenses incurred by you in
connection with the purchase, carrying, and distribution, or proposed purchase
and distribution, of the Shares and/or Warrants and all other expenses arising
under the terms of the Underwriting Agreement or this Agreement. Your
determination of all such expenses and your allocation thereof shall be final
and conclusive. Funds for our account at any time in your hands as our
Representative may be held in your general funds without accountability for
interest. As soon as practicable after the termination of this Agreement, the
net credit or debit balance in our account, after proper charge and credit for
all interim payments and receipts, shall be paid to or paid by us; provided,
however, that you in your discretion may establish such reserves as you deem
advisable to cover possible additional expenses chargeable to the Underwriters.
VIII. Liability for Future Claims. Neither any statement by you, as
Representative of the Underwriters, of any credit or debit balance in our
account nor any reservation from distribution to cover possible additional
expenses relating to the Shares and/or Warrants shall constitute any
representation by you as to the existence or non-existence of possible
unforeseen expenses or liabilities of or charges against the Underwriters.
Notwithstanding the distribution of any net credit balance to us or the
termination of this Agreement or both, we shall be and remain liable for, and
will pay on demand, (a) our proportionate share (based on our underwriting
obligations) of all expenses and liabilities which may be incurred by or for the
accounts of the Underwriters or any of them, including any liability which may
be incurred by or for the accounts of the Underwriters or any of them based on
the claim that the Underwriters constitute an association, unincorporated
business, partnership, or separate entity, and (b) any transfer taxes paid after
such settlement on account of any sale or transfer for our account.
IX. Stabilization. We authorize you, until the termination of this
Agreement, (a) to make purchases and sales of Shares and/or Warrants or of any
other securities of the Company, in the open market or otherwise, for long or
short account, and on such terms and at such prices as you in your discretion
may deem desirable, (b) in arranging for sales of Shares and/or Warrants to
Dealers, to over-allot, and (c) either before or after the termination of this
Agreement, to cover any short position incurred pursuant to this Section 9;
subject, however, to the applicable rules and regulations of the Commission
under the Exchange Act. All such purchases, 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.
If you engage in any stabilizing transactions as Representative of the
Underwriters, you shall notify us of that fact. If we effect any transaction
which may be deemed to be a stabilizing purchase, we will notify you in writing
within three business days following such purchase of the information required
by Rule 17a-2(d) under the Exchange Act.
We agree to advise you, from time to time upon request until the settlement
of accounts hereunder, of the number of Shares and/or Warrants at the time
retained by us unsold, and we will upon request sell to you for the accounts of
one or more of the several Underwriters such number of our unsold Shares and/or
Warrants as you may designate, at the Offering Price less such amount, not in
excess of the concession to Dealers, as you may determine.
X. Open Market Transactions. We agree that except with your consent and
except as herein provided we will not, prior to the termination of this
agreement or until you notify us that we are released from this restriction, bid
for, purchase, or sell, directly or indirectly, for our own account, in the open
market or otherwise, or attempt to induce others to bid for, purchase, or sell,
either before or after the sale of the Shares and/or Warrants and either for
long or short account, any securities of the Company or any right to purchase
any such security, and, prior to the completion (as defined in Rule 10b-6 under
the Exchange Act) of our participation in the distribution, we will otherwise
comply with Rule 10b-6. We represent that we have complied with Rule 10b-6 in
connection with the offering. Nothing in this Section 10 shall prohibit us from
acting as broker or agent in the execution of unsolicited orders of customers
for the purchase or sale of any securities of the Company.
XI. "Blue Sky." Prior to the initial offering by the Underwriters, you will
inform us as to the advice you have received from counsel concerning the
jurisdictions under the respective "blue sky" or securities laws of which it is
believed that the Shares and/or Warrants have been qualified or registered or
are exempt for offer and sale, but you have not assumed and will no assume any
responsibility or obligation as to the accuracy of such information or as to the
right of any Underwriter or Dealer to offer or sell the Shares and/or Warrants
in any jurisdiction. You agree, however, to cause to be filed a Further State
Notice with respect to the Shares and/or Warrants if, in the opinion of counsel
for the Underwriters, such filing is required by Article 23-A of the General
Business Law of the State of New York.
We authorize you, if you deem it inadvisable in arranging sales of Shares
and/or Warrants for our account hereunder to sell any of our Shares and/or
Warrants to any particular Dealer or other buyer because of the "blue sky" or
securities laws of any jurisdiction, to sell our Shares and/or Warrants to one
or more other Underwriters at the Offering Price less, in the case of a sale for
resale to a Dealer, such amount, not in excess of the concession to Dealers, as
you may determine. The transfer tax on any such sales among Underwriters shall
be treated as an expense and charged to the respective accounts of the
Underwriters in proportion to their respective underwriting obligations.
XII. Default by Underwriters. Default by one or more Underwriters in
respect of their obligations under the Underwriting Agreement shall not release
us from any of our obligations or in any way affect the liability of any
defaulting Underwriter to the other Underwriters for damages resulting from such
default.
In the event of default by one or more Underwriters in respect of their
obligations under this Agreement to take up and pay for any securities purchased
by you for their respective accounts pursuant to Section 9 hereof, or to deliver
any such securities sold or over-allotted by you for their respective accounts
pursuant to any provision of this Agreement, or to bear their respective shares
of expenses or liabilities pursuant to any provision of this Agreement, and to
the extent that arrangements shall not have been made by you or the Company for
other persons to assume the obligations of such defaulting Underwriter or
Underwriters, each non-defaulting Underwriter shall assume its proportionate
share (without regard to the obligation of such defaulting Underwriter or
Underwriters) of the aforesaid obligations of each such defaulting Underwriter
without relieving any such Underwriter of its liability therefor.
XIII. Termination of Agreement. Unless earlier terminated by you, the
provisions of Sections 2, 3, 4, 6, 9 and 10 hereof shall, except as otherwise
provided therein, terminate at the close of business on the forty-fifth day
after the public offering price of the Stock is determined, but may be extended
by you for an additional period or periods not exceeding forty five days in the
aggregate. You may, however, terminate this Agreement or any provisions hereof
at any time by written or telegraphic notice to us.
XIV. General Position of the Representative. In taking action under this
Agreement, you shall act only as agent of the Underwriters, except as otherwise
specifically provided herein where you may act individually. Your authority as
Representative of the Underwriters shall include the taking of such actions as
you may deem advisable in respect of all matters pertaining to any and all
offers and sales of the Shares and/or Warrants, including the right to make any
modifications which you consider necessary or desirable in the arrangements with
Dealers or others. You shall be under no liability for or in respect of the
value of the Shares and/or Warrants or the validity or the form thereof, any
preliminary prospectus, the Registration Statement, the Prospectus, the
Underwriting Agreement, or other instruments executed by the Company, or others;
or for or in respect of the delivery of the Shares and/or Warrants; or for the
performance by the Company, or others of any agreement on its or their part; nor
shall you as such Representative or otherwise be liable to the Underwriters
under any of the provisions hereof or for any matters connected herewith, except
for want of good faith; and no obligation not expressly assumed by you as such
Representative herein shall be implied from this Agreement. In representing the
Underwriters hereunder, you shall act as the Representative of each of them
respectively. Nothing herein contained shall constitute the Underwriters
partners with you or with each other, or render any Underwriter liable for the
commitments of any other Underwriter, except as otherwise provided in Section 12
hereof. The commitments and liabilities of each of the Underwriters are several
in accordance with their respective underwriting obligations and are not joint.
If for federal income tax purposes the Underwriters should be deemed to
constitute a partnership, then each Underwriter elects to be excluded from the
application of Subchapter K, Chapter 1, Subtitle A of the Internal Revenue Code
of 1986, as amended, and agrees not to take any position inconsistent with such
election. You, as Representative of the Underwriters, are authorized, in your
discretion, to execute and file on behalf of the Underwriters such evidence of
such election as may be required by the Internal Revenue Service.
XV. Acknowledgment of Registration Statement. We hereby confirm that we
have received and examined the Registration Statement (including all amendments
thereto but excluding exhibits) and the related prospectus in respect of the
Stock as heretofore filed with the Commission, that we are familiar with any
amendment to the Registration Statement which may have been filed and the final
form of amendment and prospectus proposed to be filed, that we are willing to
accept the responsibilities of an Underwriter thereunder, and that we are
willing to proceed as therein contemplated. We further confirm that the
statements made under the heading " Underwriting" in such proposed final form of
prospectus, insofar as they relate to us, do 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. We understand that
the aforementioned documents are subject to further change and that we will be
supplied with copies of any amendment or supplement to the Registration
Statement or the Prospectus promptly, if and when received by you, but the
making of such changes, amendments, or supplements shall not release us or
affect our obligations hereunder or under the Underwriting Agreement.
XVI. Indemnity and Contribution. A. We agree to indemnify and hold harmless
each other Underwriter (including you), its officers, directors, partners,
employees, agents, and counsel and each person, if any, who controls any such
Underwriter within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, to the extent and upon the terms which we agree to indemnify and
hold harmless the Company as set forth in the Underwriting Agreement.
B. Each Underwriter (including you) will pay, upon your request, as
contribution, its proportionate share, based upon its underwriting obligation,
of any losses, liabilities, claims, or damages, joint or several, paid or
incurred by any Underwriter (including you) to any person other than an
Underwriter, arising out of, based upon, or in connection with any untrue
statement or alleged untrue statement of any material fact contained in any
preliminary prospectus, the Registration Statement, the Prospectus (as from time
to time amended or supplemented), any amendment or supplement thereto, any other
selling or advertising material approved by you for use by the Underwriters in
connection with the sale of the Shares and/or Warrants, or in any application or
other document or communication executed by or on behalf of the Company or based
upon written information furnished by or on behalf of the Company filed in any
jurisdiction in order to qualify the Shares and/or Warrants 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 therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading; and will pay such proportionate share, based upon its underwriting
obligation, of all attorney's fees and any and all expenses whatsoever
reasonably incurred by you or with your consent in investigating, preparing, or
defending against any such loss, liability, claim, or damage, or any action in
respect thereof and any amounts paid in settlement of any claim or litigation.
In determining the amount of our obligation under this Section 16(b),
appropriate adjustment will be made by you to reflect any amounts received by
any Underwriter in respect of such untrue statement, alleged untrue statement,
omission, or alleged omission from the Company pursuant to the Underwriting
Agreement or otherwise. There shall be credited against any amount paid or
payable by us pursuant to this Section 16(b) any loss, liability, claim, damage,
or expense which is reasonably incurred by us as a result of any such claim
asserted against us (other than fees and disbursements of our separate counsel
if such counsel is not approved by you as provided in the next sentence), and if
such loss, liability, claim, damage, or expense is incurred by us subsequent to
any payment by us pursuant to this Section 16(b), appropriate provision shall be
made to effect such credit by refund or otherwise. If any such claim is asserted
or any action is commenced in respect thereto, you may take such action in
connection therewith as you deem necessary or desirable, including retaining
counsel for the Underwriters, and in your discretion separate counsel for any
particular Underwriter or group or Underwriters, and the fees and disbursements
of any counsel so retained by you shall be included in the amounts payable
pursuant to this Section 16(b).
C. Our indemnity and contribution agreements contained in this Section 16
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of such other Underwriter or its officers,
directors, partners, employees, agents, counsel, or controlling persons (if any)
and shall survive the delivery of the Shares and/or Warrants to the several
Underwriters and the termination of this Agreement and the similar agreements
entered into with the other Underwriters. In determining amounts payable
pursuant to Section 16(b) hereof, any loss, liability, claim, damage, or expense
incurred by any person who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act or by any officer,
director, partner, employee, agent, or counsel of any Underwriter which has been
incurred by reason of such control or other relationship shall be deemed to have
been incurred by such Underwriter. Any Underwriter shall have the right to
employ its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Underwriter. No Underwriter may settle any such claim or
action, except you may so settle on advice of counsel retained by you and with
approval of a majority in interest of the Underwriters (including you). Whenever
you receive notice of the assertion of any claim or the commencement of any
action to which the provisions of Section 16(b) hereof would be applicable, you
will give prompt notice thereof to each Underwriter. If any Underwriter or
Underwriters default in its or their obligation to make payments under Section
16(b) hereof, each non-defaulting Underwriter shall be obligated to pay its
proportionate share of all defaulted payments, based upon such Underwriter's
underwriting commitment as related to the underwriting commitments of all
non-defaulting Underwriters. Nothing herein shall relieve a defaulting
Underwriter of liability for its default.
XVII. Capital Requirements. We confirm that we may, in accordance with and
pursuant to Rule 15c3-1 promulgated by the Commission under the Exchange Act and
any applicable rules relating to capital requirements of any securities exchange
to which we are subject, agree to purchase the numbers of Shares and/or Warrants
we may be obligated to purchase under any provision of the Underwriting
Agreement or this Agreement.
XVIII. Undertaking to Mail Prospectuses. As contemplated by Rule 15c2-8
under the Exchange Act, you agree to mail a copy of the Prospectus to any person
making a written request therefor during the period referred to in Rule 15c2-8,
such mailing to be made to the address given in the request. We confirm that we
have delivered all preliminary prospectuses and revised preliminary
prospectuses, if any, required to be delivered under the provisions of Rule
15c2-8 and agree to deliver all final prospectuses and amendments or supplements
thereto required to be delivered under Rule 15c2-8. You have heretofore
delivered to us such preliminary prospectuses as have been requested by us,
receipt of which is hereby acknowledged, and will deliver such copies of the
Prospectus will be requested by us.
XIX. Miscellaneous. Any notice hereunder from you to us or from us to you
shall be deemed to have been duly given if sent by registered mail, telegram, or
teletype, to us at our address as set forth in our Underwriters' Questionnaire
previously delivered to you, or to you at IAR Securities Corp., 000 X. 00xx
Xxxxxx - 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxx,
President.
We understand that you are a member in good standing of the NASD. We
represent that we are actually engaged in the investment banking or securities
business and that we are a member in good standing of the NASD which agrees to
comply with all applicable rules of the NASD, including, without limitation, the
NASD's interpretation with respect to Free-Riding and Withholding and Section 24
of Article III of the NASD's Rules of Fair Practice, or, if we are not such a
member, we are a foreign dealer or institution not eligible for membership in
the NASD (a) which agrees to make no offers or sales within the United States,
its territories, or its possessions (except that we may participate in Group
Sales under Section 3 hereof) or to persons who are citizens thereof or
residents therein, and, in making sales, to comply with the NASD's
interpretation with respect to Free-Riding and Withholding and Sections 8, 24,
and 36 of Article III of the NASD's Rules of Fair Practice as if we were an NASD
member and Section 25 of such Article III as it applies to a non-member broker
or dealer in a foreign country and (b) which in connection with sales and offers
of Shares and/or Warrants made by us outside the United States, (i) will either
furnish to each person to whom any such offer or sale is made a copy of the then
current preliminary prospectus or the Prospectus (as then amended or
supplemented if the Company shall have furnished amendments or supplements
thereto), as the case may be, or inform such person that such preliminary
prospectus or the Prospectus will be made available upon request and (ii) will
furnish to each person to whom any such offer or sale is made such prospectus,
advertisement, or other offering document containing information relating to the
Shares and/or Warrants, Common Stock, Warrants, or the Company as may be
required under the law of the jurisdiction in which such offer or sale is made.
Any prospectus, advertisement, or other offering document furnished by us to any
person in accordance with clause (b)(ii) of the preceding sentence and any such
additional offering material as we may furnish to any person (c) shall comply in
all respects with the laws of the jurisdiction in which it is so furnished, (d)
shall be prepared and so furnished at our sole risk and expense, and (e) shall
not contain information relating to the Common Stock, Warrants, or the Company
which is inconsistent in any respect with the information contained in the then
current preliminary prospectus or in the Prospectus (as then amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), as the case may be.
This Agreement may be signed by the Underwriters in various counterparts
which together shall constitute one and the same agreement among all the
Underwriters and shall become effective at such time as all the Underwriters
shall have signed such counterparts and you shall have confirmed all such
counterparts.
This Agreement shall be construed in accordance with the laws of the State
of New York, without giving effect to conflict of laws. Time is of the essence
in this Agreement.
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Please confirm that the foregoing correctly sets forth the understanding between
us by signing and returning to us a counterpart hereof.
Very truly yours,
---------------------------------
As Attorney-in-Fact for each of the
Underwriters named in Schedule A to the
Underwriting Agreement
Confirmed as of the date first above written.
New York, New York
MILLENNIUM SECURITIES CORP.
By: __________________________________
Name:
Title:
