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EXHIBIT 1
DISTRIBUTION AGREEMENT BETWEEN SWISSJET INC.
AND J.W. KORTH & COMPANY
SWISSJET INC.
3,000,000 SHARES PREFERRED STOCK
3,000,000 SHARES COMMON STOCK
TO BE SOLD UNDER GTN(R) SALES PROCESS
DISTRIBUTION AGREEMENT
August ___, 2000
J. W. KORTH & COMPANY 32841 Middlebelt Road, Suite 400 Farmington Hills,
Michigan 48334
Dear Sirs:
Swissjet Inc. (the "Company"), confirms its agreement with you (the
"Agent," and together with such additional agents as may be named from time to
time, the "Agents") with respect to the issue and sale by the Company of up to
3,000,000 shares of Common Stock and 3,000,000 Shares of Preferred Stock. The
Common and Preferred Stock are to be issued under an the Amended Articles of
Incorporation, dated as of ________________ and will have the pricing and terms
as shown in a pricing supplement to the Prospectus referred to below.
Subject to the terms and conditions stated herein, the Company hereby
(i) appoints J. W. Korth & Company as the Purchasing Agent (the "Purchasing
Agent") of the Company for the purpose of soliciting and receiving offers to
purchase the Preferred and Common Shares,
(ii) reserves the right, from time to time, to appoint additional agents
for the purpose of soliciting and receiving offers to purchase the Common and
Preferred Shares, provided that (a) the Company shall furnish the Agents with
reasonable advance notification of the addition of any such agent, (b) such
additional agent shall be acceptable to J. W. Korth & Company and (c) each such
additional agent shall be required to become a party to this agreement and
undertake the obligations of an Agent hereunder pursuant to an Additional Agent
Appointment Agreement substantially in the form of Exhibit E hereto, and
(iii) agrees that, whenever the Company determines to sell Common and
Preferred Shares pursuant to this Agreement, such Common or Preferred Shares
shall be sold pursuant to a supplemental agreement between the Company and J. W.
Korth & Company with the Purchasing Agent purchasing such Common or Preferred
Shares as principal; the supplemental agreement will also specify the amount of
Common or Preferred Shares being sold which have been solicited by each Agent.
Each such supplemental agreement (which shall be either oral, to be confirmed in
writing, or written, and in either case the written confirmation of an oral
agreement or the written supplemental agreement shall be substantially in the
form of Exhibit B hereto and may take the form of an exchange of any standard
form of written telecommunication between the Purchasing Agent and the Company)
is herein referred to as a "Terms Agreement." Any such Terms Agreement may be
signed on behalf of the Company by
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such persons as are authorized from time to time by the Board of Directors of
the Company to bind the Company in this regard. Under no circumstances will any
Agent be obligated to purchase, or the Company be obligated to sell, any Common
or Preferred Shares, unless a Terms Agreement has been entered into between the
Company and the Purchasing Agent with respect to such Common or Preferred
Shares.
1. Solicitations by the Agents of Offers To Purchase; Purchases by the
Purchasing Agent of Common or Preferred Shares.
Following the Commencement Date (defined below), the Company shall
notify the Agents from time to time as to the commencement of a period
during which the Common or Preferred Shares may be offered and sold by the
Agents. On the basis of the representations and warranties herein
contained, but subject to the terms and conditions herein set forth, the
Agents will use their respective reasonable best efforts to solicit offers
to purchase the Common or Preferred upon the terms and conditions set forth
in the Prospectus as then amended and supplemented and as contemplated by
the Common or Preferred Shares Administrative Procedures attached hereto as
Exhibit A ("the Procedures").
The Agents are authorized to solicit orders for the Common or
Preferred Shares at a purchase price equal to at the prices and amounts to
be established from time to time by the Board of Directors of the Company
acting through its designated officers. In soliciting offers to purchase
the Common or Preferred Shares hereunder, the Agents are acting solely as
agents for the Company, and not as principals. Each Agent shall communicate
to the Company, orally or in writing, each reasonable offer or indication
of interest received by it to purchase Common or Preferred Shares. Each
Agent shall have the right to reject, in its discretion reasonably
exercised, any offer received by it to purchase the Common or Preferred
Shares, in whole or in part, and any such rejection shall not be deemed a
breach of its agreements contained herein. The Company shall have the right
to accept offers to purchase the Common or Preferred Shares and may reject
any such offer in whole or in part.
The obligations of the Agents under this Agreement shall be several and not
joint.
Each acceptance by the Company of an offer to purchase Common or
Preferred Shares shall be in accordance with the terms of this Agreement
and a Terms Agreement which will provide for the sale of such Common or
Preferred Shares to, and the purchase and reoffering thereof by, the
Purchasing Agent, as principle. The commitment of the Purchasing Agent to
purchase Common or Preferred Shares pursuant to any Terms Agreement (and
any contemporaneous purchase of Common or Preferred Shares by an Agent from
the Purchasing Agent) shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth.
Each Terms Agreement shall describe the Common or Preferred to be
purchased pursuant thereto by the Purchasing Agent as principal, specify
the amount of such Common or Preferred Share, the price to be paid to the
Company for such Common or Preferred Shares, for Preferred Shares only, the
cumulative dividend rate, the date and time of delivery of payment for
such Common or Preferred Shares (the "Settlement Date"), and on what terms
and conditions, the place of delivery of the Common or Preferred Shares and
payment therefor, the method of payment and any requirements for the
delivery of the opinions of counsel, the certificates from the Company, and
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the letter from the Company's accountants pursuant to 6(B)(b). The Agents
may reallow any portion of the commission payable pursuant hereto to
dealers or purchasers in connection with the offer and sale of any Common
or Preferred Shares.
The Company agrees to pay to the Purchasing Agent, as consideration
for soliciting the sale of the Common or Preferred Shares pursuant to a
Terms Agreement, a commission in the form of a discount equal to a
percentage not greater than 7%, which percentage shall be set forth in the
applicable Terms Agreement, of the public offering price of each Common or
Preferred Share sold by the Company; the Purchasing Agent and the other
Agents will share such commission in such proportion as they may agree.
Delivery of the certificates for Common or Preferred Shares pursuant
to any Terms Agreement shall be made as agreed to between the Company and
the Purchasing Agent as specified in the Terms Agreement, not later than
the Settlement Date set forth in such Terms Agreement, against payment of
funds to the Company in the net amount due to the Company for such Common
or Preferred Shares by the method and in the form specified in the Terms
Agreement.
The Agents and the Company agree to perform the respective duties and
obligations specifically provided to be performed by them in the
Procedures. The Procedures may be amended only by written agreement of the
Company and the Agents.
The documents required to be delivered by Section 6 of this Agreement
shall be delivered at the office of J. W. Korth & Company, 32841 Middlebelt
Road Suite 400, Farmington Hills Michigan 48834 or such other place as
determined by J. W. Korth & Company, on such date as may be agreed to by
the Company and the Agents (the "Commencement Date").
2. Other Activities of Agents.
The Company acknowledges that nothing in this Agreement shall prohibit
any Agent from
(i) acting as broker for the sale of Common or Preferred Shares by
customers other than the Company,
(ii) soliciting the sale of Common or Preferred Shares through such
Agent as broker for a seller, soliciting the sale of Common or
Preferred Shares to such Agent as principal and soliciting offers to
buy Common or Preferred Shares,
(iii) purchasing Common or Preferred Shares in the secondary market,
and
(iv) offering and selling as principal for its own account Common or
Preferred Shares which such Agent has purchased.
3. Representations and Warranties.
The Company represents and warrants to, and agrees with, the Agents as
of the date hereof, as of the Commencement Date and as of the times
referred to in Section 4(g) hereof (the Commencement Date and each such
time hereinafter sometimes referred to as a "Representation Date"), that:
(a) A registration statement (File No. _________) in respect to
3,000,000 Common and 3,000,000 Preferred Shares, has been filed with
the Securities
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and Exchange Commission (the "Commission"); such registration
statement and any post-effective amendment thereto, each in the form
heretofore delivered or to be delivered to the Agents, including all
documents incorporated by reference in the prospectus contained
therein, have been declared effective by the Commission in such form,
and no other document with respect to such registration statement or
other document incorporated by reference therein has heretofore been
filed or transmitted for filing with the Commission; and no stop order
suspending the effectiveness of such registration statement has been
issued and no proceeding for that purpose has been initiated or, to
the Company's knowledge, threatened by the Commission (any preliminary
prospectus included in such registration statement or filed with the
Commission pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Securities Act of 1933, as amended (the "Act"),
being hereinafter called a "Preliminary Prospectus"); such
registration statement, as amended at the time it became effective,
including all exhibits thereto and the documents incorporated by
reference therein at the time such registration statement became
effective, being hereinafter called the "Registration Statement"; the
prospectus, including any prospectus supplement relating to the Common
or Preferred Shares, in the form in which it has most recently been
filed, or transmitted for filing, with the Commission on or prior to
the date of this Agreement, being hereinafter called the "Prospectus";
any reference herein to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to the applicable form under the Act, as of
the date of such Preliminary Prospectus or Prospectus, as the case may
be; any reference to any amendment or supplement to any Preliminary
Prospectus or the Prospectus, including any supplement to the
Prospectus that sets forth only the terms of a particular issue of the
Common or Preferred Shares and the manner of distribution thereof (a
"Pricing Supplement"), shall be deemed to refer to and include any
documents filed after the date of such Preliminary Prospectus or
Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference
in such Preliminary Prospectus or Prospectus, as the case may be; any
reference to any amendment to the Registration Statement shall be
deemed to refer to and include any annual report of the Company filed
pursuant to Section 13(a) or 15(d) of the Exchange Act after the
effective date of the Registration Statement that is incorporated by
reference in the Registration Statement; and any reference to the
Prospectus as amended or supplemented shall be deemed to refer to and
include the Prospectus as amended or supplemented (including the
applicable Pricing Supplement) in relation to the Common or Preferred
Shares sold pursuant to this Agreement, in the form in which it is
filed, or transmitted for filing, with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 4(a)(ii) hereof,
including any documents incorporated by reference therein as of the
date of such filing or transmission);
(b) The documents incorporated by reference in the Prospectus, when
they were filed with the Commission (or, if an amendment with respect
to any such document was filed, when such amendment was filed),
conformed in all material respects to the requirements of the Act or
the Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder, and none of such documents, when they were
filed, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading; and any further documents so filed and
incorporated by reference in the
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Prospectus or any further amendment or supplement thereto, when such
documents are filed with the Commission, will conform in all material
respects to the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder
and will not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which
they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Agent expressly for use in
the Prospectus as amended or supplemented;
(c) The Registration Statement and the Prospectus conform, and any
amendments or supplements to the Registration Statement or the
Prospectus will conform, in all material respects to the requirements
of the Act and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the rules and regulations of the Commission
thereunder, and the Registration Statement, as of its effective date,
and the Prospectus, as of its filing date, do not, and any amendments
or supplements to the Registration Statement or the Prospectus will
not, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were
made, not misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made in
reliance upon and in conformity with information furnished in writing
to the Company by an Agent expressly for use in the Registration
Statement or the Prospectus as amended or supplemented or any such
statements in or omissions from that part of the Registration
Statement that constitutes the Statement of Eligibility on Form T-1 of
the Trustee under the Trust Indenture Act;
(d) Since the date of the latest audited financial statements included
or incorporated by reference in the Prospectus there has not been any
material adverse change in the business, properties, financial
condition or results of operations of the Company and its consolidated
subsidiaries, taken as a whole, otherwise than as set forth or
contemplated in the Prospectus, as amended or supplemented;
(e) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of
Michigan, with corporate power and corporate authority to own or lease
its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties, or
conducts any business, in which the failure to so qualify and be in
good standing would materially and adversely affect the business,
financial condition or results of operations of the Company and its
consolidated subsidiaries, taken as a whole;
(f) The filing of the Registration Statement with respect to the
Common or Preferred Shares has, and the issuance and sale of the
Common or Preferred Shares pursuant to this Agreement and any Terms
Agreement have, been duly authorized by the Company, and, when Common
or Preferred Shares are authenticated and issued pursuant to the
Indenture and delivered against payment of the consideration as
specified in this Agreement and any applicable Terms Agreement, such
Common or Preferred Shares will have been duly executed, issued and
delivered by the Company and will
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constitute valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and other laws
of general applicability relating to or affecting creditors' rights
and to general equity principles and will be entitled to the benefits
provided by Articles of Incorporation have been duly authorized,
executed and delivered by the Company and constitutes a valid and
legally binding instrument, enforceable in accordance with its terms,
subject, as to enforcement, to bankruptcy, insolvency, reorganization
and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the Common or
Preferred Shares will conform, in all material respects, to the
descriptions thereof contained in the Prospectus as amended or
supplemented to relate to each issuance of Common or Preferred Shares;
(g) The issue and sale of the Common or Preferred Shares and the
compliance by the Company with all of the provisions of the Common or
Preferred Shares, The Articles of Incorporation, this Agreement and
any Terms Agreement, and the consummation of the transactions herein
and therein contemplated will not conflict with or result in a breach
of any of the terms or provisions of, or constitute a default under,
any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its significant
subsidiaries (as defined in Rule 405 as promulgated by the Commission
under the Act) is a party or by which the Company or any of its
significant subsidiaries is bound, or to which any of the property or
assets of the Company or any of its significant subsidiaries is
subject, that is material to the business, properties, financial
condition or results of operations of the Company and its consolidated
subsidiaries, taken as a whole, nor will such action result in any
violation of the provisions of the Articles of Incorporation, as
amended, or the By-laws of the Company or any statute or any order,
rule or regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its significant subsidiaries
or any of their properties; and no consent, approval, authorization,
order, registration or qualification of or with any such court or
governmental agency or body is required for the issue and sale of the
Common or Preferred Shares or the consummation by the Company of the
other transactions contemplated by this Agreement or any Terms
Agreement or the Articles of Incorporation, except such as have been,
or will have been prior to the Commencement Date, under the Act and
such consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or blue sky
laws in connection with the solicitation by any Agent of offers to
purchase Common or Preferred Shares and with purchases of Common or
Preferred Shares by such Agent as principal;
(h) Other than as set forth or contemplated in the Prospectus, as
amended or supplemented, there are no legal or governmental
proceedings pending to which the Company or any of its significant
subsidiaries is a party or of which any property of the Company or any
of its significant subsidiaries is the subject with respect to which
there is a reasonable likelihood of one or more determinations which
would individually or in the aggregate have a material adverse effect
on the business, properties, financial condition or results of
operations of the Company and its consolidated subsidiaries, taken as
a whole; and, to the best of the Company's knowledge, no such
proceedings are threatened by governmental authorities or others;
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(i) The Company is not subject to regulation under the Investment
Company Act of 1940, as amended;
(j) The Company will apply the net proceeds from the sale of Common or
Preferred Shares for the purpose set forth in the Prospectus under the
caption "Use of Proceeds";
(k) To the best of the Company's knowledge, Kaufman, Rossin & Co. who
have audited certain financial statements of the Company incorporated
in the Registration Statement and the Prospectus, are independent
public accountants as required by the Act and the rules and
regulations of the Commission thereunder;
(l) Immediately after the sale of Common or Preferred Shares by the
Company hereunder and under any Terms Agreement, the aggregate amount
of Common or Preferred Shares which shall have been issued and sold by
the Company hereunder and under any Terms Agreement and of any debt
securities of the Company (other than such Common or Preferred Shares)
that shall have been issued and sold pursuant to the Registration
Statement will not exceed the amount of securities registered under
the Registration Statement;
(m) Other than as set forth or contemplated in the Prospectus, as
amended or supplemented, the Company owns or possesses all permits,
licenses and other authorizations necessary to own, lease or use its
properties and assets and to conduct its business in the manner
described in the Prospectus, except to the extent that the failure to
own or possess any such permit, license or other authorization would
not have a material adverse effect on the business, properties,
financial condition or results of operations of the Company and its
consolidated subsidiaries, taken as a whole, and the Company has not
received any notice of proceedings relating to the revocation or
modification of any such permit, license or other authorization which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, might reasonably be expected to have a material
adverse effect upon the business, properties, financial condition or
results of operations of the Company and its consolidated
subsidiaries, taken as a whole; and
(n) Other than as set forth in the Prospectus as amended or
supplemented, no event or condition exists that constitutes, or with
the giving of notice or lapse of time or both would constitute, a
default under any bond, debenture, note or other evidence of
indebtedness for money borrowed by the Company or any of its
significant subsidiaries or under any indenture, mortgage, loan
agreement or instrument under which there may be issued or by which
there may be secured or evidenced any indebtedness for money borrowed
by the Company or any of its significant subsidiaries, if such default
would result in such indebtedness in an aggregate principal amount
exceeding $1,000,000 becoming or being declared due and payable prior
to the date on which it would otherwise become due and payable.
4. Covenants of the Company. The Company agrees with each of the Agents:
(a)
(i) To make no amendment or supplement to the Registration
Statement or the Prospectus after the date of any Terms Agreement
by the Purchasing Agent to purchase Common or Preferred Shares as
principal and prior to the related Settlement Date prior to
having
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afforded each Agent a reasonable opportunity to review and
comment on it and having reasonably considered any such comments;
provided however, that, if any amendment or supplement to the
Registration Statement or the Prospectus shall be transmitted for
filing or filed after the date of any Terms Agreement between the
Company and the Purchasing Agent for the purchase of Common or
Preferred Shares and prior to the related Settlement Date, the
Purchasing Agent may unilaterally terminate such Terms Agreement
and upon any such termination no Agent shall have any further
obligation under such Terms Agreement;
(ii) to prepare, with respect to any Common or Preferred Shares
to be sold through or to such Agent pursuant to this Agreement, a
Pricing Supplement with respect to such Common or Preferred
Shares in a form previously approved by such Agent and to file
such Pricing Supplement pursuant to Rule 424(b) under the Act
within the applicable time period prescribed for such filing by
such Rule;
(iii) to make no amendment or supplement to the Registration
Statement or Prospectus, other than any Pricing Supplement, at
any time prior to having afforded each Agent a reasonable
opportunity to review and promptly comment on it and having
reasonably considered any such comments;
(iv) to file timely all reports and any definitive proxy or
information statements required to be filed by the Company with
the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act (all such reports and proxy or information
statements which are so filed and which have not been
subsequently superseded shall be referred to as the "Incorporated
Documents") for so long as the delivery of a prospectus is
required in connection with the offering or sale of the Common or
Preferred Shares, and during such period to advise such Agent,
promptly after the Company receives notice thereof, of the time
when any amendment to the Registration Statement has been filed
or has become effective or any amendment or supplement to the
Prospectus (other than any Pricing Supplement that relates to
Common or Preferred Shares not purchased through or by such
Agent) has been filed with the Commission, of the issuance by the
Commission of any stop order or of any order preventing or
suspending the use of any prospectus relating to the Common or
Preferred Shares, of the suspension of the qualification of the
Common or Preferred Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding
for any such purpose, or of any request by the Commission for the
amendment or supplement of the Registration Statement or
Prospectus or for additional information; and
(v) in the event of the issuance of any such stop order or of any
such order preventing or suspending the use of any such
prospectus or suspending any such qualification, promptly to use
reasonable efforts to obtain its withdrawal;
(b) Promptly from time to time to take such action as the Agents may
reasonably request to qualify such Common or Preferred Shares for offering
and sale under the securities laws of such jurisdictions in the United
States as the Agents may reasonably request and to comply with such laws so
as to permit the continuance of sales and dealings therein in such
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jurisdictions for as long as may be necessary to complete the distribution
of such Common or Preferred Shares, provided that in connection therewith
the Company shall not be required to qualify as a foreign corporation, to
file a general consent to service of process in any jurisdiction, take any
action which would subject it to general service of process in any
jurisdiction where it is not now subject or file annual reports with such
jurisdictions or comply with any other requirements deemed by the Company
in its reasonable judgment expressed in writing to the Purchasing Agent to
be unduly burdensome; and to inform the Agents promptly of any notices it
may receive from any state securities agency which limits or will limit any
such qualification or exemption;
(c) To furnish the Agents with copies of the Prospectus as amended or
supplemented, in the form in which it is filed with the Commission pursuant
to Rule 424(b) of the Act, in such quantities as the Agents may from time
to time reasonably request, and, if the delivery of a prospectus is
required at any time in connection with the offering or sale of any Common
or Preferred Shares and if at such time any event shall have occurred as a
result of which it is necessary to further amend or supplement the
Prospectus in order that the Prospectus will not include an untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or, if for any other reason
during such period it is necessary to further amend or supplement the
Prospectus or to file under the Exchange Act any document incorporated by
reference in the Prospectus in order to comply with the Act, the Exchange
Act or the Trust Indenture Act, to notify each Agent and request the
Agents, in their capacity as agents of the Company, to suspend solicitation
of offers to purchase Common or Preferred Shares from the Company (and, if
so notified, each Agent shall cease such solicitations as soon as possible,
but in any event not later than one business day later); and if the Company
shall decide to amend or supplement the Registration Statement or the
Prospectus as then amended or supplemented, to so advise the Agents by
telephone (with confirmation in writing) and to prepare and cause to be
filed as soon as practicable with the Commission an amendment or supplement
to the Registration Statement or the Prospectus as then amended or
supplemented that will correct such statement or omission or effect such
compliance; provided, however, that if during such period an Agent
continues to own Common or Preferred Shares purchased from the Company by
such Agent as principal or an Agent is otherwise required to deliver a
prospectus in respect of transactions in the Common or Preferred Shares,
the Company shall promptly prepare and file with the Commission such an
amendment or supplement;
(d) To make generally available to its security holders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c) of
the Act), an earnings statement of the Company and its consolidated
subsidiaries (which need not be audited) covering a period of at least 12
months beginning after the later of (i) the effective date of the
Registration Statement, (ii) the effective date of each post-effective
amendment to the Registration Statement, and (iii) the date of each filing
by the Company with the Commission of an Annual Report on Form 10-K that is
incorporated by reference in the Registration Statement, which earning
statements shall comply with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the option of the
Company, Rule 158 of the Act);
(e) So long as any Common or Preferred Shares are outstanding, to furnish
to such Agent, without charge, copies of its Annual Report on Form 10-K and
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other financial reports of the Company furnished or made available to the
public generally, and deliver to such Agent,
(i) as soon as they are available, copies of any Incorporated
Documents; and
(ii) such additional publicly available information concerning the
business and financial condition of the Company as such Agent may from time
to time reasonably request;
(f) That, from the date of any Terms Agreement with the Purchasing Agent
and continuing to and including the related Settlement Date, the Company
will not, without the prior written consent of each Agent, which consent
shall not be unreasonably withheld, issue or announce the proposed issuance
of, offer, sell, contract to sell or otherwise dispose of any equity
securities of the Company which are substantially similar to the Common or
Preferred Shares and which are expected to be distributed on a retail basis
in a manner comparable to that set forth in Exhibit A;
(g) That each execution and delivery by the Company of a Terms Agreement
with the Purchasing Agent shall be deemed to be an affirmation to each
Agent that the representations and warranties of the Company contained in
this Agreement are true and correct as of the date of such Terms Agreement,
as though made at and as of such date, and an undertaking that such
representations and warranties will be true and correct as of the
Settlement Date for the Common or Preferred Shares relating to such sale,
as though made at and as of such date (except that such representations and
warranties shall be deemed to relate to the Registration Statement and the
Prospectus, as amended and supplemented, relating to such Common or
Preferred Shares);
(h) That each time the Registration Statement or the Prospectus shall be
amended or supplemented (other than by a Pricing Supplement), each time a
document filed under the Act or the Exchange Act is incorporated by
reference into the Prospectus (other than
(i) a Current Report pursuant to Section 13 or 15(d) of the Exchange
Act on Form 8-K relating exclusively to the previous issuance of
Common or Preferred Shares under the Registration Statement or
(ii) a Quarterly Report on Form 10-Q under the Exchange Act, unless,
in the case of clause (B), the Agents shall otherwise request), and
each time the Company sells Common or Preferred Shares to the
Purchasing Agent as principal and the applicable Terms Agreement
specifies the delivery of an opinion or opinions by counsel to the
Agent, as a condition to the purchase of Common or Preferred Shares
pursuant to such Terms Agreement, at the request of such Agent, the
Agent's Counsel shall furnish to such Agent its written opinion, dated
the date of such amendment, supplement, incorporation or Settlement
Date relating to such sale, as the case may be, in form reasonably
satisfactory to such Agent to the effect that such Agent may rely on
the opinion of such counsel as to the matters referred to in Section
6(A)(c), which was last furnished to such Agent to the same extent as
though it was dated the date of such letter authorizing reliance
(except that the statements in such last opinion shall be deemed to
relate to the Registration Statement and the Prospectus as amended and
supplemented to such date or, in lieu of such opinion, an opinion of
the same tenor as the opinion of such counsel as to the matters
referred to in Section 6(A)(c), but modified to relate to the
Registration Statement and the Prospectus as amended and supplemented
to such date), and reasonably in advance of the time that any such
opinion is to be
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delivered the Company shall furnish to such counsel such papers and
information as they may reasonably request to enable them to pass on
such matters;
(A) That each time the Registration Statement or the Prospectus
shall be amended or supplemented (other than by a Pricing
Supplement), each time a document filed under the Act or the
Exchange Act is incorporated by reference into the Prospectus
(other than (I) a Current Report pursuant to Section 13 or 15(d)
of the Exchange Act on Form 8-K relating exclusively to the
previous issuance of Common or Preferred Shares under the
Registration Statement or
(B) a Quarterly Report on Form 10-Q under the Exchange Act,
unless, in the case of clause (II), the Agents shall otherwise
request), and each time the Company sells Common or Preferred
Shares to the Purchasing Agent as principal and the applicable
Terms Agreement specifies the delivery of an opinion under this
Section 4(i) as a condition to the purchase of Common or
Preferred Shares pursuant to such Terms Agreement, the Company
shall furnish or cause to be furnished forthwith to such Agent
the written opinion or opinions of counsel to the Company or such
other counsel for the Company reasonably satisfactory to such
Agent, dated the date of such amendment, supplement,
incorporation or Settlement Date relating to such sale, as the
case may be, in form reasonably satisfactory to such Agent to the
effect that such Agent may rely on the opinion of such counsel as
to the matters referred to in Exhibit C hereof, which was last
furnished to such Agent to the same extent as though it was dated
the date of such letter authorizing reliance (except that the
statements in such last opinion shall be deemed to relate to the
Registration Statement and the Prospectus as amended and
supplemented to such date or, in lieu of such opinion, an opinion
of the same tenor as the opinion of such counsel as to the
matters referred to in Exhibit C hereof but modified to relate to
the Registration Statement and the Prospectus as amended and
supplemented to such date);
(j) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement) and
each time that a document filed under the Act or the Exchange Act is
incorporated by reference into the Prospectus (other than (A) a
Current Report pursuant to Section 13 or 15(d) of the Exchange Act on
Form 8-K relating exclusively to the previous issuance of Common or
Preferred Shares under the Registration Statement or (B) a Quarterly
Report on Form 10-Q under the Exchange Act, unless, in the case of
clause (B), the Agents shall otherwise request), in either case to set
forth financial information included in or derived from the Company's
consolidated financial statements or accounting records, and each time
the Company sells Common or Preferred Shares to the Purchasing Agent
as principal and the applicable Terms Agreement specifies the delivery
of a letter under this Section 4(j) as a condition to the purchase of
Common or Preferred Shares pursuant to such Terms Agreement, the
Company shall cause Kaufman Rossin & Co. forthwith to furnish such
Agent a letter, dated the date of such amendment, supplement,
incorporation or Settlement Date relating to such sale, as the case
may be, in form reasonably satisfactory to such Agent, of the same
tenor as the letter referred to in Exhibit D hereof but modified to
relate to the Registration Statement and the Prospectus as amended or
supplemented to the date of such letter, with such changes
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<PAGE> 12
as may be necessary to reflect changes in the financial statements and
other information derived from the accounting records of the Company,
to the extent such financial statements and other information are
available as of a date not more than five business days prior to the
date of such letter; provided, however, that, with respect to any
financial information or other matter, such letter may reconfirm as
true and correct at such date as though made at and as of such date,
rather than repeat, statements with respect to such financial
information or other matter made in the letter referred to in Exhibit
D hereof which was last furnished to such Agent; and
(k) That each time the Registration Statement or the Prospectus shall
be amended or supplemented (other than by a Pricing Supplement), each
time a document filed under the Act or the Exchange Act is
incorporated by reference into the Prospectus (other than a Current
Report pursuant to Section 13 or 15(d) of the Exchange Act on Form 8-K
relating exclusively to the previous issuance of Common or Preferred
Shares under the Registration Statement), and each time the Company
sells Common or Preferred Shares to the Purchasing Agent as principal
and the applicable Terms Agreement specifies the delivery of a
certificate under this Section 4(k) as a condition to the purchase of
Common or Preferred Shares pursuant to such Terms Agreement, the
Company shall furnish or cause to be furnished forthwith to such Agent
a certificate, dated the date of such supplement, amendment,
incorporation or Settlement Date, as the case may be, in such form and
executed by such officers of the Company as shall be reasonably
satisfactory to such Agent (or, in the case of certificates delivered
pursuant to Section 6(B)(b) hereof, by such other employees authorized
by the Board of Directors of the Company to execute and deliver such
certificates), to the effect that the statements contained in the
certificate referred to in Section 6 hereof which was last furnished
to such Agent are true and correct at such date as though made at and
as of such date (except that such statements shall be deemed to relate
to the Registration Statement and the Prospectus as amended and
supplemented to such date) or, in lieu of such certificate,
certificates of the same tenor as the certificates referred to in said
Section 6 but modified to relate to the Registration Statement and the
Prospectus as amended and supplemented to such date.
5. Payment of Expenses. The Company covenants and agrees with each Agent
that the Company will pay or reimburse all expenses incident to this Agreement,
including the following:
(a) the reasonable fees and expenses of one counsel for the Agents in
connection with the preparation of a blue sky survey of qualifications and
exemptions to offer and sell Common or Preferred Shares in the various
states in the United States, the District of Colombia, Puerto Rico and
Guam.
(b) to the extent the Company has agreed to print any of the following, the
cost of printing any Terms Agreement, any Indenture, any blue sky survey
and any other documents in connection with the offering, purchase, sale and
delivery of the Common or Preferred Shares;
(c) any filing fees in connection with the qualification of the Common or
Preferred Shares for offering and sale under state securities laws as
provided in Section 4(b) hereof;
(d) any fees charged by securities rating services for rating the Common or
Preferred Shares; (v) any filing fees incident to any required review by
the National Association of Securities Dealers, Inc. ("NASD") of the terms
of the sale of the Common or Preferred Shares;
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<PAGE> 13
(e) the cost of preparing the Common or Preferred Shares;
(f) the fees and expenses of any Trustee and any agent of any Trustee and
any transfer or paying agent of the Company and the fees and disbursements
of counsel for any Trustee or such agent in connection with any Indenture
and the Common or Preferred Shares; and
(g) taxes (other than transfer taxes on sales by the Agents or Dealers) in
connection with the issuance and delivery of the Common or Preferred
Shares; provided that the Company shall not be obligated to reimburse any
Agent for any expenses referred to in this sentence incurred after the
initial offering of Common or Preferred Shares except as may be negotiated
from time to time by the Company and the Agents. Except as provided in this
Section, Section 7 and Section 8 hereof, each Agent shall pay all other
costs and expenses it incurs.
6. Conditions to the Obligations of the Agents. (A) The obligations of each
Agent to solicit offers to purchase the Common or Preferred Shares pursuant to
Section 1 hereof will, unless waived by such Agent expressly in writing, be
subject to the accuracy of the representations and warranties on the part of the
Company made herein as of the date hereof and as of the Commencement Date, to
the accuracy of the statements of the Company's officers made in each
certificate furnished pursuant to the provisions hereof, to the performance and
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed and to the following additional conditions
precedent:
(a)
(i) The Prospectus as amended or supplemented (including the
Pricing Supplement) with respect to such Common or Preferred
Shares shall have been filed with the Commission pursuant to Rule
424(b) under the Act within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 4(a) hereof;
(ii) no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceeding
for that purpose shall have been initiated or threatened by the
Commission; and
(iii) all requests for additional information on the part of the
Commission shall have been complied with.
(b) The Company shall have furnished to such Agent an opinion or opinions
of the counsel to the Company, dated the Commencement Date, substantially
to the effect set forth in Exhibit C hereto. Any of the opinions set forth
therein may be delivered by another counsel for the Company who is
reasonably satisfactory to the Agents.
(c) Such Agent shall have received from counsel for the Agent, an opinion,
dated the Commencement Date, with respect to the Registration Statement, as
amended as of the Commencement Date, the Prospectus, as amended and
supplemented as of the Commencement Date, and other related matters as such
Agent may reasonably require; and the Company shall have furnished to such
counsel such documents as they may reasonably request for the purpose of
enabling them to pass on such matters.
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<PAGE> 14
(d) The Company shall have furnished to such Agent a certificate of the
Company, signed by any of the Chairman of the Board, the President or the
Chief Financial Officer, dated the Commencement Date, to the effect that to
the best of such person's knowledge after reasonable investigation:
(i) this Agreement is substantially in the form presented to and
approved by the Board of Directors of the Company;
(ii) The representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the date of such certificate with the same effect as if made on the
date of such certificate, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied as a condition to the obligations of such Agent
under this Agreement;
(iii) since the date of the most recent financial statements included
or incorporated by reference in the Prospectus, as amended and
supplemented, there has been no material adverse change in the
business, properties, financial condition or results of operations of
the Company and its consolidated subsidiaries, taken as a whole, other
than those changes reflected in or contemplated by the Prospectus, as
amended and supplemented as of the date of the certificate;
(iv) no stop order suspending the effectiveness of the Registration
Statement is in effect, and no proceedings for such purposes are
pending before or threatened by the Commission; and
(e) Kaufman, Rossin & Co. shall have furnished to such Agent a letter or
letters, dated the Commencement Date, in form and substance satisfactory to
such Agent, confirming that they are independent public accountants within
the meaning of the Act and the Exchange Act and the respective applicable
published rules and regulations thereunder.
(f) Subsequent to the respective dates as of which information is given in
the Registration Statement and the Prospectus, as amended and supplemented,
there shall not have been any material adverse change in the business,
properties, financial condition or results of operations of the Company and
its consolidated subsidiaries, taken as a whole, the effect of which, in
the reasonable judgment of such Agent after reasonable inquiry, is to
impair the marketability of the Common or Preferred Shares.
(g) There shall not have occurred:
(i)
(A) a suspension or material limitation in trading in securities
generally on the New York Stock Exchange,
(B) a suspension in trading in any securities of the Company on any
exchange or over-the-counter market, or
(C) a general moratorium on commercial banking activities in New York
declared by either Federal or New York State authorities, if the
effect of any such occurrence is such as to impair, in the reasonable
judgment of such Agent, after reasonable inquiry, the marketability of
the Common or Preferred Shares; or
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<PAGE> 15
(ii) the outbreak or material escalation of hostilities involving the
United States or the declaration by the United States of a national
emergency or war, if the effect of any such occurrence on the
financial markets of the United States is such as to impair, in the
reasonable judgment of such Agent, after reasonable inquiry, the
marketability of the Common or Preferred Shares.
(h) The Company shall have furnished to such Agent such further
information, certificates and documents as such Agent may reasonably
request from time to time. Any certificate signed by any officer of the
Company and delivered to such Agent or its counsel and delivered explicitly
pursuant to the terms of this Agreement shall be deemed a representation
and a warranty by the Company to such Agent as to matters covered thereby,
as if set forth herein. The obligations of the Purchasing Agent to purchase
Common or Preferred Shares pursuant to any Terms Agreement entered into by
it pursuant to Section 1 hereof will be subject to the accuracy of the
representations and warranties on the part of the Company herein as of the
date of such Terms Agreement and as of the Settlement Date thereunder, to
the accuracy of the statements of the Company's officers made in each
certificate furnished pursuant to the provisions hereof, to the performance
and observance by the Company of all covenants and agreements contained
herein and in such Terms Agreement on its part to be performed and observed
and to the following additional conditions precedent (which cannot be
waived by the Purchasing Agent in any respect without the consent of each
other Agent):
(i) The Prospectus as amended or supplemented (including the Pricing
Supplement) with respect to such Common or Preferred Shares shall have
been filed with the Commission pursuant to Rule 424(b) under the Act
within the applicable time period prescribed for such filing by the
rules and regulations under the Act and in accordance with Section
4(a) hereof;
(ii) no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and (iii)
all requests for additional information on the part of the Commission
shall have been complied with.
(iii) Upon the request of any Agent, such Agent shall have received,
appropriately updated and modified,
(A) a certificate of the Company, dated as of the Settlement Date, to
the effect set forth in Section 6(A)(d),
(B) the opinion or opinions of the counsel to the Company or such
other counsel satisfactory to such Agent, dated as of the Settlement
Date, to the effect set forth in Section 6(A)(b),
(C) the opinion of counsel for the Agent, dated as of the Settlement
Date, to the effect set forth in Section 6(A)(c) and/or (iv) the
letter or letters of Kaufman Rossin & Co., dated as of the Settlement
Date, to the effect set forth in Section 6(A)(e).
(D) The conditions set forth in Sections 6(A)(f) and 6(A)(g) shall
have been satisfied.
(E) Prior to the Settlement Date, the Company shall have furnished to
any Agent such further information, certificates and documents as such
Agent may reasonably request.
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<PAGE> 16
If any of the conditions specified in this Section 6 shall not
have been fulfilled in all material respects when and as provided in
this Agreement and in such Terms Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement and in
such Terms Agreement shall not be in all material respects reasonably
satisfactory in form and substance to such Agent and its counsel, such
Terms Agreement and all obligations of any Agent thereunder may be
canceled at, or at any time prior to, the Settlement Date by such
Agent. Notice of such cancellation shall be given to the Company in
writing or by telephone or telegraph confirmed in writing.
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Agent against
any losses, claims, damages or liabilities, joint or several, to which
such Agent may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement, the Prospectus or any
amendment or supplement to any of the foregoing, or arise out of or
are based upon the 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 reimburse each Agent for
any legal or other expenses reasonably incurred by such Agent in
connection with investigating or defending any such action or claim;
provided, however, that the Company shall not be liable to provide any
indemnity hereunder in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement, the
Prospectus, or any amendment or supplement to any of the foregoing in
reliance upon and in conformity with written information furnished to
the Company by any Agent expressly for use in any Preliminary
Prospectus, the Registration Statement, the Prospectus or any
amendment or supplement to any of the foregoing and provided further
that the Company will not be liable to provide any indemnity hereunder
to any Agent with respect to any loss, claim, damage or liability
arising out of or based upon any untrue statement or alleged untrue
statement or omission or alleged omission to state a material fact in
any Preliminary Prospectus which had been corrected in the Prospectus
as amended or supplemented if the person asserting any such loss,
claim, liability, charge or damage purchased Common or Preferred
Shares from an Agent but was not sent or given a copy of the
Prospectus as so amended or supplemented at or prior to the written
confirmation of the sale of such Common or Preferred Shares to such
person.
(b) Each Agent, severally and not jointly, will indemnify and hold
harmless the Company against any losses, claims, damages or
liabilities to which the Company may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in
any Preliminary Prospectus, the Registration Statement, the
Prospectus, or any amendment or supplement to any of the foregoing, or
arise out of or are based upon the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case
to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or
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<PAGE> 17
omission or alleged omission was made in any Preliminary Prospectus,
the Registration Statement, the Prospectus, or any such amendment or
supplement to any of the foregoing in reliance upon and in conformity
with written information furnished to the Company by such Agent
expressly for use therein; and will reimburse the Company for any
legal or other expenses reasonably incurred by the Company in
connection with investigating or defending any such action or claim.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof, enclosing a
copy of all papers served; but the omission to so notify the
indemnifying party shall not relieve it from any liability which it
may have to any indemnified party unless, and only to the extent that,
such omission results in the forfeiture of substantive rights or
defenses by the indemnifying party. In case any such action shall be
brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party
shall assume the defense of any such litigation or proceeding,
including the employment of counsel and the payment of all expenses.
Such counsel shall be designated in writing by such Agent in the case
of parties indemnified pursuant to Section 7(b) and by the Company in
the case of parties indemnified pursuant to Section 7(a). Any
indemnified party shall have the right to participate in such
litigation or proceeding and to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such
indemnified party unless
(i) the indemnifying party and the indemnified party shall have
mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any
impleaded parties) include (x) the indemnifying party and (y) the
indemnified party and, in the written opinion of counsel to such
indemnified party, representation of both parties by the same
counsel would be inappropriate due to actual or likely conflicts
of interest between them, in either of which cases the reasonable
fees and expenses of counsel (including disbursements) for such
indemnified party shall be reimbursed by the indemnifying party
to the indemnified party. If there is a conflict as described in
clause (ii) above, and the indemnified parties have participated
in the litigation or proceeding utilizing separate counsel whose
fees and expenses have been reimbursed by the indemnifying party
and the indemnified parties, or any of them, are found to be
solely liable, such indemnified parties shall repay to the
indemnifying party such fees and expenses of such separate
counsel as the indemnifying party shall have reimbursed. It is
understood that the indemnifying party shall not, in connection
with any litigation or proceeding or related litigation or
proceedings in the same jurisdiction as to which the indemnified
parties are entitled to such separate representation, be liable
under this Agreement for the reasonable fees and out-of-pocket
expenses of more than one separate firm (together with not more
than one appropriate local counsel) for all such indemnified
parties. Subject to the next paragraph, all such fees and
expenses shall be reimbursed by payment to the indemnified
parties of such reasonable fees and expenses of counsel promptly
after payment thereof by the indemnified parties. An indemnifying
party will not
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<PAGE> 18
be liable for any settlement or any action or claim effected
without its written consent (which consent will not be
unreasonably withheld).In furtherance of the requirement above
that fees and expenses of any separate counsel for the
indemnified parties shall be reasonable, each Agent and the
Company agree that the indemnifying party's obligations to pay
such fees and expenses shall be conditioned upon the following:
(1) in case separate counsel is proposed to be retained by
the indemnified parties pursuant to clause (ii) of the
preceding paragraph, the indemnified parties shall in good
faith fully consult with the indemnifying party in advance
as to the selection of such counsel; and
(2) reimbursable fees and expenses of such separate counsel
shall be detailed and supported in a manner reasonably
acceptable to the indemnifying party (but nothing herein
shall be deemed to require the furnishing to the
indemnifying party of any information, including without
limitation, computer print-outs of lawyers' daily time
entries, to the extent that, in the judgment of such
counsel, furnishing such information might reasonably be
expected to result in a waiver of any attorney-client
privilege); and
(3) the Company and such Agent shall cooperate in monitoring
and controlling the fees and expenses of separate counsel
for indemnified parties for which the indemnifying party is
liable hereunder, and the indemnified party shall use every
reasonable effort to cause such separate counsel to minimize
the duplication of activities as between themselves and
counsel to the indemnifying party.
(d) If the indemnification provided for in this Section 7 is unavailable to
or insufficient to hold harmless an indemnified party under subsection (a)
or (b) above in respect of any losses, claims, damages or liabilities (or
actions in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified
party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company on the one hand and an Agent
on the other from the offering of the Common or Preferred Shares to which
such loss, claim, damage or liability (or action in respect thereof)
relates; if, and only if, contribution solely on the basis of relative
benefits is found to be unavailable, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (or actions in
respect thereof) in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company on the
one hand and such Agent on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities (or
actions in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one
hand and such Agent on the other shall be deemed to be in the same
proportion as the total net proceeds from such offering (before deducting
expenses) received by the Company bear to the total underwriting discounts
and commissions received by such Agent, in each case as set forth in the
table on the cover page of the Prospectus as amended or supplemented to
relate to a particular offering of Common or
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<PAGE> 19
Preferred Shares. The relative fault shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or such
Agent on the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. The Company and each Agent agree that it would not be just and
equitable if contribution pursuant to this subsection (d) were determined
by pro rata allocation (even if the Agents were treated as one entity for
such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to above in this
subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or
claim. Notwithstanding the provisions of this subsection (d), no Agent
shall be required to contribute any amount in excess of the amount by which
the total price at which the applicable Common or Preferred Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Agent has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The obligations of the Agents in this
subsection (d) to contribute are several in proportion to their respective
underwriting obligations with respect to such Common or Preferred Shares
and not joint. Any party entitled to contribution, promptly after receipt
of notice of commencement of any action against such party in respect of
which a claim for contribution may be made under this Section 7(d), will
notify any such party or parties from whom contribution may be sought, but
the omission to so notify will not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
under this Section 7(d). No party will be liable for contribution with
respect to any action or claim settled without its written consent (which
consent will not be unreasonably withheld).
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who
controls any Agent within the meaning of the Act; and the obligations of
each Agent under this Section 7 shall be in addition to any liability which
such Agent may otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to each person,
if any, who controls the Company within the meaning of the Act.
8. Termination.
This Agreement may be terminated at any time either by the Company as to any of
the Agents or by any of the Agents insofar as this Agreement relates to such
Agent upon the giving of written notice of such termination to such Agent or
Agents or to the Company, as the case may be; provided that Section 10 shall
survive only for the term provided therein and only with respect to the parties
covered thereby. In the event of termination of this Agreement (other than with
respect to section 10), no terminating party or parties with respect to which
this Agreement is terminated shall have any liability to the other parties
hereto, except as follows:
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<PAGE> 20
(a) as provided in the first sentence of the fourth paragraph of Section 1
and Sections 4(c), 5, 7, 9 and 11;
(b)
(i) if at the time of termination a Terms Agreement is in effect
between the Purchasing Agent and the Company but the time of delivery
to any Agent of the Note or Common or Preferred Shares relating
thereto has not occurred or
(ii) if the Agent or Agents shall then own any Note or Common or
Preferred Shares purchased pursuant to a Terms Agreement, then the
Company's representations and warranties stated in Section 3 and its
obligations under the sixth paragraph of Section 1 and Sections 4(a),
4(b), 4(d), 4(e), 4(f), 4(i), 4(j) and 4(k), with respect to clause
(i) above, shall remain in full force and effect and not be terminated
and, shall remain in full force and effect and not be terminated until
the earlier of the date on which such Common or Preferred Shares are
resold or the expiration of 90 days from such termination; provided,
however that the Company may repurchase any such Common or Preferred
Shares from the Agents at the net price sold to the Agents on original
issuance and thereby terminate its obligations hereunder; and
(c) if the Company shall terminate this Agreement within six months of the
date hereof, other than as a result of a breach hereof by an Agent, the
Company shall be obligated, in addition to any matters covered by clauses
(a) and (b) of this Section 8, to reimburse the Agents for the reasonable
out-of-pocket expenses incurred by the Agents in connection with the
execution of this Agreement and the offering and sale of Common or
Preferred Shares including, but not limited to, the reasonable fees and
expenses of one counsel for the Agents in connection with the establishment
of the program contemplated hereby.
9. Representations and Indemnities to Survive. The respective agreements,
representations, warranties, indemnities and other statements of the Company or
its officers and of the Agents set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation made by or
on behalf of the Agents or the Company or any of the officers, directors or
controlling persons referred to in section 7 hereof, and will survive delivery
of and payment for the Common or Preferred Shares, and the indemnity agreement
contained in Section 7 hereof shall survive any termination of this Agreement.
10. Notices. All communications hereunder will be in writing and effective only
on receipt, and, if sent to the Company, will be mailed or delivered or sent by
facsimile transmission or telegraph and confirmed to it at Lee Schmactenberg,
Esq. Corporate Counsel for Swissjet Inc. 1533 Sunset Drive, Coral Gables Fl.
33143 and if sent to any of the Agents, will be mailed or delivered or sent by
facsimile transmission or telegraph and confirmed to them at their respective
addresses and facsimile transmission numbers, as follows: if to J. W. Korth &
Company, to it at 32841 Middlebelt Road, Suite 400, Farmington Hills, Michigan
48334, attention: Robert W. Haun, facsimile transmission number (248) 855-0805.
Any party hereto may change its address or facsimile number set out in this
Section 11 by a notice given to the other parties in accordance herewith.
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11. Successors. This Agreement will inure to the benefit of and be binding upon
the parties hereto and their respective successors and the officers and
directors and controlling persons referred to in Section 7 hereof, and no other
person will have any right or obligation hereunder. The term "successors" as
used in this Agreement shall not include a purchaser, as such purchaser, of
Common or Preferred Shares from any Agent or from any selected dealer acting
through such Agent.
12. Applicable Law. This Agreement and each Terms Agreement will be governed by
and construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed wholly within such jurisdiction,
13. Counterparts. This Agreement may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement.
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement between the
Company and you.
Very truly yours,
Swissjet, Inc
By: __________________________
Title: _______________________
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
J. W. KORTH & COMPANY
By: __________________________
Title: _______________________
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<PAGE> 22
EXHIBIT A
ADMINISTRATED PROCEDURES TO BE FOLLOWED IN THE
OFFERING AND DELIVERY OF COMMON AND PREFERRED SHARES
Administrative procedures to be followed in connection with, and
certain specific terms of, the offering of Common or Preferred Shares for sale
by the Agents and the sale as a result thereof by the Company are stated below.
The Company will advise the Purchasing Agent and the Trustee in writing of those
persons handling administrative responsibilities with whom the Purchasing Agent
and the Trustee are to communicate regarding orders to purchase Common or
Preferred Shares and the details of their delivery. To the extent the procedures
set forth below conflict with the provisions of the Common or Preferred Shares,
the Indenture or the Distribution Agreement, the relevant provisions of the
Common or Preferred Shares, the Indenture and the Distribution Agreement shall
control. To the extent the Common or Preferred Shares, if any, are sold through
the Agents, acting as agents and not as principals, the following procedures
shall be modified as necessary to reflect that sale.
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<PAGE> 23
ADMINISTRATIVE PROCEDURES FOR BOOK-ENTRY COMMON OR PREFERRED SHARES
Procedure for Rate Setting and Posting:
The Company and the Purchasing Agent will discuss from time to time the
aggregate principal amount and price in the case of Preferred Shares the
dividend rate to be borne by, each Tranche of Book-Entry Common or Preferred
Shares that may be purchased by the Purchasing Agent. If the Company decides to
set amounts and prices and (in the case of preferred) dividend rates to be borne
by, any Tranche to be purchased by the Purchasing Agent (the setting of such
amounts, maturities and rates by the Company to be referred to herein as a
"Posting"), or if the Company decides to change amounts, prices or rates
previously posted, the Company will promptly advise the Purchasing Agent of the
amounts, prices and rates to be posted. The Purchasing Agent will thereafter
promptly advise the other Agents of the amount, prices and rates to be posted.
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<PAGE> 24
OFFERING OF COMMON OR PREFERRED SHARES:
In the event that there is a Posting, each of the Agents will communicate the
aggregate amounts prices of, and the (in the case of preferred) dividend rates
to be borne by, each Tranche that is the subject of the Posting to each of the
broker-dealers (the "Dealers") that has entered into a dealers agreement (a
"Dealers Agreement") with such Agent and, pursuant to such Dealers Agreement,
will solicit offers to purchase the Common or Preferred Shares in the Tranche
from the Dealers.
Purchase of Common or Preferred Shares by the Purchasing Agent:
The Purchasing Agent will, no later than 4 P.M. (Eastern time) on the sixth day
subsequent to the day on which such Posting occurs, or if such sixth day is not
a day on which commercial banks in New York City are not required or authorized
to be closed (such a day, a "Business Day"), on the next succeeding Business
Day, or on such later Business Day and time as shall be mutually agreed upon by
the Company and the Agents (any such day, a "Trade Date"), (i) complete, execute
and deliver to the Company a Terms Agreement that sets forth, among other
things, the amount of each Tranche that the Purchasing Agent is offering to
purchase (and the amount of such Common or Preferred Shares which have been
solicited by each Agent) or (ii) inform the Company that none of the Common or
Preferred Shares of a particular Tranche will be purchased by the Purchasing
Agent.
Preparation of Pricing Supplement:
Immediately upon receipt of a completed and executed Terms Agreement from the
Purchasing Agent, the Company will (i) execute and deliver such Terms Agreement
to the Purchasing Agent or (ii) inform the Purchasing Agent that its offer to
purchase the Common or Preferred Shares of a particular Tranche has been
rejected. The Purchasing Agent will immediately inform the other Agents of the
action taken by the Company.
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<PAGE> 25
If any offer by the Purchasing Agent to purchase Common or Preferred Shares is
accepted by or on behalf of the Company, the Company, with the approval of each
Agent, will prepare a Pricing Supplement reflecting the terms of each Tranche
and will arrange to have the Pricing Supplement filed with the Commission in
accordance with the applicable paragraph of Rule 424(b) under the Securities Act
of 1933, as amended (the "Act"), and will supply one copy of such Pricing
Supplement to each Agent and to the Trustee. Each Agent will deliver, or will
cause to be delivered, copies of the applicable Pricing Supplement to (i) each
of the Dealers that purchased such Common or Preferred Shares pursuant to a
Dealers Agreement in sufficient amounts so that a copy of the applicable Pricing
Supplement can be delivered to each such Dealer and each purchaser of Common or
Preferred Shares from such Dealer and (ii) each purchaser of Common or Preferred
Shares from such Agent (other than such Dealers).
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<PAGE> 26
Delivery of Prospectus:
In each instance that a Pricing Supplement is prepared, each of the Agents will
affix, or will cause to be affixed, copies of the Pricing Supplement to the
Prospectus prior to their distribution to purchasers of the Common or Preferred
Shares from such Agent (other than Dealers that are purchasers of Common or
Preferred Shares from such Agent with a view to their distribution pursuant to a
Dealers Agreement) and will be responsible for determining that Dealers
purchasing Common or Preferred Shares from such Agent have sufficient copies of
the most current version of the Pricing Supplements and the related Prospectus
to deliver copies of such Pricing Supplement attached to the Prospectus to every
purchaser of the Common or Preferred Shares, as appropriate. The Agent and the
Dealers will destroy any Pricing Supplements, and any Prospectuses to which they
are attached (other than those retained for files), that remain in their
possession after Pricing Supplements have been delivered to the purchasers of
Common or Preferred Shares.
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<PAGE> 27
A copy of the Prospectus and a Pricing Supplement relating to a Book-Entry
Common or Preferred Share must accompany or precede any written offer of such
Common or Preferred Shares, confirmation of the purchase of such Common or
Preferred Shares and payment for such Common or Preferred Shares by its
purchaser (other than an Agent or Dealer). Each of the Agents and the Dealers
will deliver a Prospectus and Pricing Supplement as herein described with
respect to each Book-Entry Common or Preferred Shares sold by any of them, along
with a confirmation of sale, to each purchaser on the Business Day immediately
following the Trade Date.
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<PAGE> 28
Issuance:
On the Settlement Date (as defined in the Distribution Agreement) for each
Tranche sold pursuant to the Distribution Agreement, the Company will issue and
will cause the Trustee to authenticate one or more Global Certificates. Each
Global Certificate will be dated and issued as of the date of its authentication
by the Trustee.
Registration:
Each Global Certificate will be registered in the name of CEDE & CO., as nominee
for DTC, on the Securities Register. The beneficial owner of a Book-Entry Common
or Preferred Shares (or an indirect participant in DTC designated by such owner)
will designate a participant in DTC (with respect to such Common or Preferred
Shares, the "Participant") to act as agent for such beneficial owner in
connection with the book-entry system maintained by DTC, and DTC will record in
book-entry form, in accordance with instructions provided by the Participant, a
credit balance indicating that the Participant is the record holder of the
Common or Preferred Shares. The ownership interest of the beneficial owner in
such Common or Preferred Shares will be recorded through the records of the
Participant or through the separate records of the Participant and an indirect
participant in DTC.
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<PAGE> 29
Denominations:
Book-Entry Common or Preferred Shares will be issued in principal amounts of one
share or any amount in excess thereof that is an integral multiple of one share.
Global Certificates will be denominated in principal amounts not in excess of
3,000,000. If a Tranche having an aggregate principal amount in excess of
3,000,000 shares would, but for the preceding sentence, be represented by a
single Global Certificate, then one Global Certificate will be authenticated and
issued to represent each 3,000,000 shares of such Tranche and an additional
Global Certificate will be authenticated and issued to represent any remaining
shares of such Tranche. In such a case, each of the Global Securities
representing such Book-Entry Common or Preferred Shares shall be assigned the
same CUSIP number.
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<PAGE> 30
Settlement:
The receipt by the Company of immediately available funds in payment for a
Tranche and the authentication and issuance of the Global Certificate(s)
representing such Tranche shall constitute "Settlement" with respect to the
Common or Preferred Shares constituting such Tranche. The Settlement Date with
respect to any purchase of Book-Entry Common or Preferred Shares from the
Company by the Purchasing Agent will be a date on or before the third Business
Day next succeeding the Trade Date, unless otherwise agreed by each Agent and
the Company and specified in the applicable Terms Agreement.
Settlement Procedures:
The following Settlement Procedures will be performed by the Company, the
Trustee, each Agent and each of the Dealers with regard to each Tranche of
Book-Entry Common or Preferred Shares issued by the Company on a Trade Date:
A. The Purchasing Agent will advise the Company in writing of the following
settlement information:
1. Aggregate number Common or Preferred Shares .
2. Stated Dividend Rate for Preferred Shares.
3. Monthly, quarterly or semi-annual interest dividend payments for
Preferred Shares.
4. Settlement date.
5. Agents' price.
6. Dealers' selling concession.
7. Optional Redemption (if any for Preferred Shares ). .
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<PAGE> 31
B. The Company will advise the Trustee by telephone (confirmed in writing at
any time on the same date) or electronic transmission (i) of the information
set forth in Settlement Procedure "A" above, (ii) that the Common or
Preferred Shares are Book-Entry Common or Preferred Shares and (iii) confirm
the identity of the Purchasing Agent as purchaser.
C. The Trustee will enter a pending deposit message through DTC's Participant
Terminal System, providing the following settlement information to DTC, the
Agents and Standard & Poor's Corporation:
1. The information set forth in Settlement Procedure "A".
2. If a Tranche of Preferred Shares, the Expected Dividend Payment Date
for such Tranche of Preferred Shares, number of days by which such date
succeeds the related Regular Record Date and amount of Dividends
payable on such Dividend Payment Date.
3. CUSIP number of the Global Certificate(s) representing such Tranche of
Common or Preferred Shares.
4. Whether such Global Certificates(s) will represent any other Tranche of
Book-Entry Common or Preferred Shares (to the extent known at such
time).
D. The Trustee will complete the Global Certificate(s) representing such
Tranche or the Company will prepare and deliver to the Trustee a completed
Global Certificate representing such Tranche.
E. The Trustee will authenticate the Global Certificate(s) representing such
Tranche.
F. DTC will credit such Tranche to the Trustee's participant account at DTC.
31
<PAGE> 32
G. The Trustee will enter a Same-Day Funds Settlement System ("SDFS") deliver
order through DTC's Participant Terminal System instructing DTC to (i) debit
such Tranche to the Trustee's participant account and credit the Common or
Preferred Shares belonging to such Tranche to the Purchasing Agent's
participant account and (ii) debit the Purchasing Agent's settlement account
and credit the Trustee's settlement account for an amount equal to the
aggregate principal amount of such Common or Preferred Shares, less the
underwriting discount. The entry of such a deliver order shall constitute a
representation and warranty by the Trustee to DTC that (i) the Global
Certificate(s) representing such Book-Entry Common or Preferred Shares has
or have been issued and authenticated and (ii) the Trustee is holding such
Global Certificate(s) pursuant to the Letter of Representations with respect
to such Common or Preferred Shares between the Company, the Trustee and DTC.
H. The Purchasing Agent will enter an SDFS deliver order through DTC's
Participant Terminal System instructing DTC (i) to debit Common or Preferred
Shares received from the Trustee pursuant to settlement procedure "G" above
to the Purchasing Agent's participant account and to credit such Common or
Preferred Shares to the participant accounts of Participants (including
other Agents) that (A) will hold such Common or Preferred Shares as Dealers
that purchased the Common or Preferred Shares from the Purchasing Agent
pursuant to a Dealers Agreement or as representatives of such Dealers or (B)
will hold the Common or Preferred Shares on behalf of a purchaser of the
Common or Preferred Shares from the Purchasing Agent (other than such
Dealers), (ii) in the case of Participants
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<PAGE> 33
that will hold the Common or Preferred Shares as described in (A) above, to
debit the settlement accounts of such Participants and credit the settlement
account of the Purchasing Agent for an amount equal to the aggregate
principal amount of such Common or Preferred Shares, less the applicable
selling concession, and, (iii) in the case of Participants that will hold
the Common or Preferred Shares as described in (B) above, to debit the
settlement accounts of such Participants and credit the settlement account
of the Purchasing Agent for an amount equal to the aggregate principal
amount of such Common or Preferred Shares.
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<PAGE> 34
Settlement Procedures Timetable:
I. Transfers of funds in accordance with SDFS delivery orders described in
Settlement Procedures "G" and "H" will be settled in accordance with SDFS
operating procedures in effect on the Settlement Date.
J. The Trustee will credit to an account of the Company maintained at the
Trustee funds available for immediate use in the amount transferred to the
Trustee in accordance with Settlement Procedure "G".
Settlement Procedures "A" through "J" set forth above shall be completed as soon
as possible but not later than the respective times (Eastern time) set forth
below, or such later time as may be agreed upon by the Company and the
Purchasing Agent:
Settlement Procedure Time
A 4:00 P.M. on the Trade Date
B 5:00 P.M. on the Trade Date
C 2:00 P.M. on the Business Day before Settlement Date
D 3:00 P.M. on Business Day before Settlement Date
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<PAGE> 35
E 9:00 A.M. On Settlement Date
F 10:00 A.M. On Settlement Date
G. 2:00 P.M. On Settlement Date
H. 5:00 P.M. On Settlement Date
35
<PAGE> 36
Trustee Not to Risk Funds:
Settlement Procedure "I" is subject to extension in accordance with the events
specified in SDFS operating procedures in effect on the Settlement Date. If
Settlement of a Tranche of Book-Entry Common or Preferred Shares is rescheduled
or canceled, the Trustee will deliver to DTC, through DTC's Participant Terminal
System, a cancellation message to such effect by no later than 2:00 P.M.
(Eastern time) on the Business Day immediately preceding the scheduled
Settlement Date. Nothing herein shall be deemed to require the Trustee to risk
or expend its own funds in connection with any payment to the Company, or the
Purchasing Agent or any Dealer, it being understood by all parties that payments
made by the Trustee to the Company or the Purchasing Agent shall be made only to
the extent that funds are provided to such Trustee for such purpose.
Authenticity of Signatures:
The Company will cause the Trustee to furnish the Agents from time to time with
specimen signatures of the Trustee's officers, employees or agents who have been
authorized by the Trustee to authenticate Global Certificates, but the Agents
will not have any obligation or liability to the Company or the Trustee in
respect of the authenticity of the signature of any officer, employee or agent
of the Company or the Trustee on any Global Certificate.
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<PAGE> 37
EXHIBIT B
SWISSJET INC.
3,000,000 SHARES COMMON STOCK
3,000,000 SHARES PREFERRED STOCK
TERMS AGREEMENT
Swissjet, Inc August , 2000
4225 Ingraham Highway
Miami, Florida 33133
Pursuant to the Registration Statement for the above captioned Shares this is
Terms Agreement Number _________
Attention: Treasurer
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<PAGE> 38
Subject in all respects to the terms and conditions of the Distribution
Agreement dated August, 2000, between J. W. Korth & Company and you, the
undersigned agree to purchase the following Common or Preferred Stock Swissjet
Inc.:
Stock Type:
CUSIP:
Number of Shares:
Dividend Rate (if Preferred):
Price To Public Per Share:
Purchase Price Per Share:
Selling Concession Per Share
Settlement Date:
Optional Redemption for Preferred Shares, if any:
Initial Redemption Date:
Redemption Price: Per share
declining by per share on each anniversary of the Initial Redemption
Date until the Redemption Price is equal to the Public Offering Price.
Place for Delivery of Notes and Payment Therefore: DTC SDFS
Method of Payment: Same Day Funds System
Form (If Certificated Stock):
Place of Delivery (If Certificated Stock):
Shares to be Purchased:
<TABLE>
<S> <C>
J. W. Korth & Company ,000
Other Agents:
,000
,000
,000
---------
Total ,000
</TABLE>
Modification, if any, in the requirements to deliver the documents specified in
Section 6 (B) (b) of the Agreement: Other Provisions:
Accepted:
Swissjet, Inc. J. W. Korth & Company
By: By:
------------------------ ------------------
Name: Name:
Title: Title:
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EXHIBIT C
J.W. KORTH & COMPANY
32841 Middlebelt Road, Suite 400
Farmington Hills, Michigan 48334
(248) 855-4500
Master Selected Dealer Agreement
Dear Selected Dealer:
In connection with public offerings of securities after the date hereof
for which we are acting as manager of an underwriting syndicate or are otherwise
responsible for the distribution of securities to the public by means of an
offering of securities for sale to selected dealers, you may be offered the
right as such a selected dealer to purchase as principal a portion of such
securities. This will confirm our mutual agreement as to the general terms and
conditions applicable to your participation in any such selected dealer group
organized by us as follows.
1. Applicability of this Agreement. The terms and conditions of this
Agreement shall be applicable to any public offering of securities
("Securities"), pursuant to a registration statement filed under the Securities
Act of 1933 (the "Securities Act"), or exempt from registration thereunder
(other than a public offering of Securities effected wholly outside the United
States of America), wherein J.W. Korth & Company (acting for its own account or
for the account of any underwriting or similar group or syndicate) is
responsible for managing or otherwise implementing the sale of the Securities to
selected dealers ("Selected Dealers") and has expressly informed you that such
terms and conditions shall be applicable. Any such offering of Securities to you
as a Selected Dealer is hereinafter called an "Offering". In the case of any
Offering where we are acting for the account of any underwriting or similar
group or syndicate ("Underwriters"), the terms and conditions of this Agreement
shall be for the benefit of, and binding upon, such Underwriters, including, in
the case of any Offering where we are acting with others as representatives of
Underwriters, such other representatives.
2. Conditions of Offering; Acceptance and Purchases. Any Offering will
be subject to delivery of the Securities and their acceptance by us and any
other Underwriters, may be subject to the approval of all legal matters by
counsel and the satisfaction of other conditions, and may be made on the basis
of reservation of Securities or an allotment against subscription. We will
advise you by telegram, telex or other form of written communication ("Written
Communication", which term, in the case of any Offering described in Section
3(a) or 3(b) hereon, may include a prospectus or offering circular) of the
particular method and supplementary terms and conditions (including, without
limitation, the information as to prices and offering date referred to in
Section 3(c) hereof) of any Offering in which you are invited to participate. To
the extent such supplementary terms and conditions are inconsistent with any
provision herein, such terms and conditions shall supersede any such provision.
Unless otherwise indicated in any such written Communication, acceptances and
other communications by you with respect to an offering should be sent to J.W.
Korth & Company, 32841 Middlebelt Road, Suite 400, Farmington Hills, MI 48334
(Fax (248) 855-6681. We reserve the right to reject any acceptance in whole or
in part. Unless notified otherwise by us, Securities purchased by you shall be
paid for on such date as we shall determine, on one day's prior notice to you,
by certified or official bank check, in an amount equal to the Public Offering
Prices (as hereinafter defined) or, if we shall so advise you, at such Public
Offering Price less the Concession (as hereinafter defined), payable in New York
Clearing House funds to the order of J.W. Korth & Company, 32841 Middlebelt
Road, Suite 400, Farmington Hills, MI 48334, against delivery of the Securities.
If Securities are purchased and paid for at such Public Offering Price, such
Concession will be paid after the termination of the provisions of Section 3(c)
hereof with respect to such Securities. Notwithstanding the foregoing, unless
notified otherwise by us, payment for and delivery of Securities purchased by
you shall be made through the facilities of The
39
<PAGE> 40
Depository Trust Company, if you are a member, unless you have otherwise
notified us prior to the date specified in a Written Communication to you from
us or, if you are not a member, settlement may be made through a correspondent
who is a member pursuant to instructions which you will send to us prior to such
specified date.
3. Representations, Warranties and Agreements.
(a) Registered Offerings. In the case of any Offering of Securities
that are registered under the Securities Act ("Registered Offering"), we shall
provide you with such number of copies of each preliminary prospectus and of the
final prospectus relating thereto as you may reasonably request for the purposes
contemplated by the Securities Act and the Securities Exchange Act of 1934 (the
"Exchange Act") and the applicable rules and regulations of the Securities and
Exchange Commission thereunder. You represent and warrant that you are familiar
with Rule 15c2-8 under the Exchange Act relating to the distribution of
preliminary and final prospectuses and agree that you will comply therewith. You
agree to make a record of your distribution of each preliminary prospectus and,
when furnished with copies of nay revised preliminary prospectus, you will, upon
our request, promptly forward copies thereof to each person to whom you have
theretofore distributed a preliminary prospectus. You agree that in purchasing
Securities in a Registered Offering you will rely upon no statement whatsoever,
written or oral, other than the statements in the final prospectus delivered to
you by us. You will not be authorized by the issuer or other seller of
Securities offered pursuant to a prospectus or by any Underwriter to give any
information or to make any representation not contained in the prospectus in
connection with the sale of such Securities.
(b) Offerings Pursuant to the Offering Circular. In the case of any
Offering of Securities, other than a Registered Offering, which is made pursuant
to an offering circular or other document comparable to a prospectus in a
Registered Offering, we shall provide you with such number of copies of each
preliminary offering circular and of the final offering circular relating
thereto as you may reasonably request. You agree that you will comply with the
applicable Federal and state laws, and the applicable rules and regulations of
any regulatory body promulgated thereunder, governing the use and distribution
of offering circulars by brokers or dealers. You agree that in purchasing
Securities pursuant to an offering circular you will rely upon no statements
whatsoever, written or oral, other than the statements in the final offering
circular delivered to you by us. You will not be authorized by the issuer or
other seller of Securities offered pursuant to an offering circular or by any
Underwriter to give any information or to make any representation not contained
in the offering circular in connection with the sale of such Securities.
(c) Offer and Sale to the Public. With respect to any Offering of
Securities, we will inform you by a Written Communication of the public offering
price, the selling concession, the reallowance (if any) to dealers and the time
when you may commence welling Securities to the public. After such public
offering has commenced, we may change the public offering price, the selling
concession and the reallowance to dealers. The offering price, selling
concession and reallowance (if any) to dealers at any time in effect with
respect to an Offering are hereinafter referred to, respectively, as the "Public
Offering Price", the "Concession" and the "Reallowance". With respect to each
Offering of Securities, until the provisions of this Section 3(c) shall be
terminated pursuant to Section 4 hereof, you agree to offer Securities to the
public only at the Public Offering Price, except that if a Reallowance is in
effect, a reallowance from the Public Offering Price not in excess of such
Reallowance may be allowed as consideration for services rendered in
distribution to dealers who are actually engaged in the investment banking or
securities business, who execute the written agreement prescribed by section
24(c) of Article III of the Rules of Fair Practice of the
40
<PAGE> 41
National Association of Securities Dealers, Inc. (the "NASD") and who are either
members in good standing of the NASD or foreign banks, dealers or institutions
not eligible for membership in the NASD who represent to you that they will
promptly reoffer such Securities at the Public Offering Price and will abide by
the conditions with respect to foreign banks, dealers and institutions set forth
in Section 3(e) hereof.
(d) Over-allotment; Stabilization; Unsold Allotments. We may, with
respect to any Offering, be authorized to over-allot in arranging sales to
Selected Dealers, to purchase and sell Securities for long or short account and
to stabilize or maintain the market price of the Securities. You agree that,
upon our request at any time and from time to time prior to the termination of
the provisions of Section 3(c) hereof with respect to any Offering, you will
report to us the amount of Securities purchased by you pursuant to such Offering
which then remain unsold by you and will, upon our request at any such time,
sell to us for our account or the account of one or more Underwriters such
amount of such unsold Securities as we may designate at the Public Offering
Price less an amount to be determined by us not in excess of the Concession. If,
prior to the later of (I) the termination of the provisions of Section 3(c)
hereof with respect to any Offering or (ii) the covering by us of any short
position created by us in connection with such Offering for our account or the
account of one or more Underwriters, we purchase or contract to purchase for our
account or the account of one or more Underwriters in the open market or
otherwise any Securities purchased by you under this Agreement as part of such
Offering, you agree to pay us on demand an amount equal to the Concession with
respect to such Securities (unless you shall have purchased such Securities
pursuant to Section 2 hereof at the Public Offering Price in which case we shall
not be obligated to pay such Concession to you pursuant to Section 2) plus
transfer taxes and broker's commissions or dealer's mark-up, if any, paid in
connection with such purchase or contract to purchase.
(e) NASD. You represent and warrant that you are actually engaged in
the investment banking or securities business and either a member in good
standing of the NASD or, if you are not such a member, you are a foreign bank,
dealer or institution not eligible for membership in the NASD which agrees to
make no sales within the United States, its territories or its possessions or to
persons who are citizens thereof or residents therein, and in making other sales
to comply with the NASD's interpretation with respect to free riding and
withholding. You further represent, by your participation in an Offering, that
you have provided to us all documents and other information required to be filed
with respect to you, any related person or any person associated with you or any
such related person pursuant to the supplementary requirements of the NASD's
interpretation with respect to review of corporate financing as such
requirements relate to such Offering.
You agree that, in connection with any purchase or sale of the
Securities wherein a selling concession, discount or other allowance is received
or granted, (1) you will comply with the provisions of section 24 of Article III
of the NASD's Rules of Fair Practice and (2) if you are a non-NASD member broker
or dealer in a foreign country, you will also comply (a), as though you were an
NASD member, with the provision of sections 8 and 36 thereof and (b) with
section 25 thereof as that section applies to a non-NASD member broker or dealer
in a foreign country.
You further agree that, in connection with any purchase of securities
from us that is not otherwise covered by the terms of this Agreement (whether we
are acting as manager, as a member of an underwriting syndicate or a selling
group or otherwise), if a selling concession, discount or other allowance is
granted to you, clauses (1) and (2) of the preceding paragraph will be
applicable.
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<PAGE> 42
(f) Relationship among Underwriters and Selected Dealers. We may buy
Securities from or sell Securities to any Underwriter or Selected Dealer and,
without consent, the Underwriters (if any) and the Selected Dealers may purchase
Securities from and sell Securities to each other at the Public Offering Price
less all or any part of the Concession. You are not authorized to act as agent
for us, any Underwriter or the issuer or other seller of any Securities in
offering Securities to the public or otherwise. Neither we nor any Underwriter
shall be under any obligation to you except for obligations assumed hereby or in
any Written Communication from us in connection with any Offering. Nothing
contained herein or in any Written Communication from us shall constitute the
Selected Dealers an association or partners with us or any Underwriter or with
one another. If the Selected Dealers, among themselves or with the Underwriters,
should be deemed to constitute a partnership for Federal income tax purposes,
then you elect to be excluded from the application of Subchapter K, Chapter 1,
Subtitle A of the Internal Revenue Code of 1986 and agree not to take any
position inconsistent with that election. You authorize us, in our discretion,
to execute and file on your behalf such evidence of that election as may be
required by the Internal Revenue Service. In connection with any Offering, you
shall be liable for your proportionate amount of any tax, claim, demand or
liability that may be asserted against you alone or against one or more Selected
Dealers participating in such Offering, or against us or the Underwriters, based
upon the claim that the Selected Dealers, or any of them, constitute an
association, an unincorporated business or other entity, including, in each
case, your proportionate amount of any expense incurred in defending against any
such tax, claim, demand or liability.
(g) Blue Sky Laws. Upon application to us, we shall inform you as to
any advice we have received from counsel concerning the jurisdictions in which
Securities have been qualified for sale or are exempt under the securities or
blue sky laws of such jurisdictions, but we do not assume any obligation or
responsibility as to your right to sell Securities in any such jurisdiction.
(h) Compliance with Law. You agree that in selling Securities pursuant
to any Offering (which agreement shall also be for the benefit of the issuer or
other seller of such Securities) you will comply with all applicable laws, rules
and regulations, including the applicable provisions of the Securities Act and
the Exchange Act, the applicable rules and regulations of the Securities and
Exchange Commission thereunder, the applicable rules and regulations of the
NASD, the applicable rules and regulations of any securities exchange having
jurisdiction over the Offering and the applicable laws, rules and regulations
specified in Section 3(b) hereof.
4. Termination, Supplements and Amendments. This agreement shall
continue in full force and effect until terminated by a written instrument
executed by each of the parties hereto. This Agreement may be supplemented or
amended by us by written notice thereof to you, any such supplement or amendment
to this Agreement shall be effective with respect to any Offering to which this
Agreement applies after the date of such supplement or amendment.
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Each reference to "this Agreement" herein shall, as appropriate, be to this
Agreement as so amended and supplemented. The terms and conditions set forth in
Section 3(c) hereof with regard to any Offering will terminate at the close of
business on the 30th day after the commencement of the public offering of the
Securities to which such Offering relates, but in our discretion may be extended
by us for a further period not exceeding 30 days and in our discretion, whether
or not extended, may be terminated at any earlier time.
5. Successors and Assigns. This Agreement shall be binding on, and
inure to the benefit of, the parties hereto and other persons specified in
Section 1 hereof, and the respective successors and assigns of each of them.
6. Governing Law. This Agreement and the terms and conditions set forth
herein with respect to any Offering together with such supplementary terms and
conditions with respect to such Offering as may be contained in any Written
Communication from us to you in connection therewith shall be governed by, and
construed in accordance with, the laws of the State of Michigan.
Please confirm by signing and returning to us the enclosed copy of the
Agreement that your subscription to, or your acceptance of any reservation of,
any Securities pursuant to an Offering shall constitute (i)acceptance of and
agreement to the terms and conditions of this Agreement (as supplemented and
amended pursuant to Section 4 hereof) together with and subject to any
supplementary terms and conditions contained in any Written Communication from
us in connection with such Offering, all of which shall constitute a binding
agreement between you and us, individually or as representative of any
Underwriters, (ii) confirmation that your representations and warranties set
forth in Section 3 hereof are true and correct at that time, (iii) confirmation
that your agreements set forth in Sections 2 and 3 hereof have been and will be
fully performed by you to the extent and at the times required thereby and (iv)
in the case of any Offering described in Section 3(a) and 3(b) hereof,
acknowledgment that you have requested and received from us sufficient copies of
the final prospectus or offering circular, as the case may be, with respect to
such Offering in order to comply with your undertakings in Section 3(a) or 3(b)
hereof.
Very truly yours,
J.W. Korth & Company
By:_______________________________
Name: James W. Korth
Title: Managing General Partner
CONFIRMED:__________________________19____
__________________________________________
(Name of Dealer)
By:_______________________________________
Name:_____________________________________
(Print Name)
Title:______________________________________
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