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EXHIBIT 1.2
850,000 Units
MIKE'S ORIGINAL, INC.
Each Unit Consisting of One Share of
Common Stock and One Warrant
, 1997
AGREEMENT AMONG UNDERWRITERS
Millennium Securities Corp.
000 X. 00xx Xxxxxx
0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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 Mike's Original, Inc., a Delaware corporation (the "Company"), of
an aggregate of 80,000 Units, each Unit consisting of one share of Common Stock,
par value $.001 per share, of the Company (the "Common Stock"), and one warrant
to purchase one share of Common Stock (the "Warrants"), (such 80,000 Units being
herein called the "Firm Units"), the option granted therein by the Company to
the Underwriters severally to purchase from it up to an additional 127,500
Units, (such 127,500 Units being herein called the "Additional Units"), and the
proposed sale of the Firm Units and the Additional Units as hereinafter set
forth. The obligations of the Underwriters to purchase the Firm Units and
Additional Units pursuant to the Underwriting Agreement are herein called
"Underwriting Obligations" and the Firm Units and (to the extent such option is
exercised) the Additional Units are herein sometimes referred to collectively as
the "Units."
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 Units to be
purchased by them, as in your judgment are not materially adverse to the
Underwriters; provided, however, that the number of Units 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
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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 Units; 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 Unit for each Unit 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 Units 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 Units 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 Units 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 Units 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 Stock as you may
determine. Such sales of Units, 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 Units reserved for our account for offering to
Dealers bears to the aggregate of all Units of all Underwriters so reserved.
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You agree to notify us promptly on the date of the public offering as to
the number of Units, 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 Units remaining unsold theretofore retained by us and
we may, with your consent, retain any Units 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 Units 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 Units 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 several 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 Units, to any eligible broker or
dealer, all subject to the Rules of Fair Practice of the NASD.
You, as Representative, and any of the several Underwriters with your prior
consent, may make purchases or sales of Units (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 Units.
Nothing contained in this Agreement shall be deemed to restrict our right,
subject to the provisions of this Section 3, to offer our Units 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.
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IV. Repurchases in the Open Market. Any Units 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 Units delivered on such repurchase need not be the
identical Units originally sold by us. In lieu of delivery of such Units to us,
you may (a) sell such Units 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 Units, 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, 0xx 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 Units which we are then obligated to purchase pursuant to the
Underwriting Agreement or (b) such of our Units 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 Units, against delivery of certificates for such Units or Additional Units
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
Units 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 Units 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 Units can be settled through the facilities of The Depository Trust Company,
payment for and delivery of our Units 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 Units 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.
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Upon receipt by you of payment for the Units sold by or though you for our
account, you will (c) with respect to such Units paid for by us, remit to us
promptly an amount equal to the purchase price paid by us for such Units and
credit or debit our account on your books with the difference between the
selling price and the purchase price of such Units as set forth in or determined
pursuant to Section 5 of the Underwriting Agreement and (d) with respect to such
Units 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 Units 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 Units as shall not have been sold or
reserved for sale by you for our account.
In case any Units 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 Units 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 Units, to reimburse you on demand for the full
amount which you shall have paid us in respect of such Units.
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 Units 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 units 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 several Underwriters.
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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 Units shall constitute any representation by you as to
the existence or non-existence of possible unforeseen expenses or liabilities of
or charges against the several 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 Units 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 Units 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 Units 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 Units 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 Units 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.
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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 Units 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 Units in any jurisdiction. You agree,
however, to cause to be filed a Further State Notice with respect to the Units
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 Units
for our account hereunder to sell any of our Units to any particular Dealer or
other buyer because of the "blue sky" or securities laws of any jurisdiction, to
sell our Units 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 several 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.
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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 several Underwriters, except as
otherwise specifically provided herein where you may act individually. Your
authority as Representative of the several 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 Units, 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 Units 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 Units; 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 several 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 several 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 several 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 several 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 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.
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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 Units, 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 Units 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).
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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 Units 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 Units 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 Millennium Securities Corp., 000 Xxxx
00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Xxxxxxx X. Xxxxxxx, Chief
Executive Officer.
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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 Units 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 Units, 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 Units,
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.
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 several
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:
