Harbour Entertainment Inc.
Up to 1,715,000 Share of Common Stock
September , 2000
AGREEMENT AMONG UNDERWRITERS
Russo Securities, Inc.
128 Sand Lane
Staten Island, NY 10305
AS REPRESENTATIVES
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
Harbour Entertainment Inc., a Delaware corporation (the "Company"), of an
aggregate of up to 1,715,000 shares of common stock (the "Common Stock"), $.001
par value per share, of the Company on a "best efforts" basis for a minimum of
$8,000,000 (the "Minimum Offering Price") and maximum of $12,000,000 (the
"Maximum Offering Price"). The obligations of the Underwriters to purchase
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 to be
purchased by them, as in your judgment are not materially adverse to the
Underwriters; provided, however, that the number of Shares 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; 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).
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As your share of the compensation for your services as Representative
hereunder, you are entitled to a non-accountable expense allowance equal to 3%
of the gross proceeds of the entire offering, and as an authorized Underwriter
we are entitled to the Underwriting discounts and commissions equal to ten
percent (10%) of the total sales price of all Shares sold by us and the number
of warrants equal to 10% of the total amount of Shares sold by us.
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 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 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 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 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 as you
may determine. Such sales of Shares, 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 reserved for our account for offering
to Dealers bears to the aggregate of all Shares of all Underwriters so reserved.
You agree to notify us promptly on the date of the public offering as to
the number of Shares , 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 remaining unsold theretofore retained by us and
we may, with your consent, retain any Shares remaining unsold theretofore
reserved by you.
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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 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 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, 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 (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.
Nothing contained in this Agreement shall be deemed to restrict our right,
subject to the provisions of this Section 3, to offer our Shares 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 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 delivered on such repurchase need not be the
identical Shares originally sold by us. In lieu of delivery of such Shares to
us, you may (a) sell such Shares 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
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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, 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 Russo Securities, Inc., 128
Sand Lane, Staten Island, NY 10305, 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 which we are then obligated to purchase pursuant to the Underwriting
Agreement or (b) such of our Shares 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,
against delivery of certificates for such Shares 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 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 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 can be settled through the facilities of The Depository Trust
Company, payment for and delivery of our Shares 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 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 sold by or though you for our
account, you will (c) with respect to such Shares paid for by us, remit to us
promptly an amount equal to the purchase price paid by us for such Shares and
credit or debit our account on your books with the difference between the
selling price and the purchase price of such Shares as set forth in or
determined pursuant to Section 5 of the Underwriting Agreement and (d) with
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respect to such Shares 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 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 as
shall not have been sold or reserved for sale by you for our account.
In case any Shares 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 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, to reimburse you on demand for the full
amount which you shall have paid us in respect of such Shares.
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 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 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 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
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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 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 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 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 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 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 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
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Underwriter or Dealer to offer or sell the Shares in any jurisdiction. You
agree, however, to cause to be filed a Further State Notice with respect to the
Shares 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
for our account hereunder to sell any of our Shares to any particular Dealer or
other buyer because of the "blue sky" or securities laws of any jurisdiction, to
sell our Shares 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, 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
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Shares 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; 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
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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, 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 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 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
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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 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 Russo Securities, Inc., 128 Sand Lane,
Staten Island, NY 10305, Attention: Fred Russo
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 made by us outside the United States, (i) will either furnish to each
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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, Common Stock, 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, 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
Underwriters named in Schedule A to the
Underwriting Agreement
Confirmed as of the date first above written.
New York, New York
Russo Securities, Inc.
By: __________________________________
Name:
Title:
