EXHIBIT 1 (A)
AMENDED FORM OF SELLING AGREEMENT
___________, 1998
Up to 50,000,000 Shares of Common Stock
RENAISSANCE DESIGNER GALLERY PRODUCTS, INC.
Price: $0.10 Per Share
-----------------------
SELLING AGREEMENT
(Name of Broker/Dealer)
Gentlemen:
RENAISSANCE DESIGNER GALLERY PRODUCTS, INC., a corporation organized
under the laws of the state of Nevada, (the "Company"), hereby confirms its
agreement with you as follows:
1. INTRODUCTORY.
-------------
The Company is offering to the general public its Common Stock of a
par value of $0.01 per share at the public price of $0.10 per share.
The minimum amount of Common Stock offered will equal 30,000,000
shares aggregating $3,000,000 and the maximum amount of Common Stock
offered will be 50,000,000 shares aggregating $5,000,000. Until
subscription are received for the minimum amount of shares offered and
continuing thereafter until the Offering is terminated, all funds paid
in respect to subscriptions will be held in an Escrow Account with
Central Bank & Trust Co., Hutchinson, Kansas.
The subscription period for the Offering will terminate ninety (90)
days from the date of the Prospectus unless the Company, at its sole
discretion, extends such Offering for an additional ninety (90) days.
The Company hereby confirms its agreement with you, that you will act
as our Selling Agent for the offering of the Common Stock on a "best
efforts" basis as agent for the Company.
2. REPRESENTATIONS AND WARRANTIES.
-------------------------------
The Company represents and warrants to you that:
(a) The Company has prepared and filed with the United States
Securities and Exchange Commission and a Registration Statement
under Form SB-2, which the Prospectus is a part, in form and
substance so as to comply with Section 5 of the Securities Act of
1933, as amended (the "Act"). Such Prospectus, as amended from
time to time, (including financial statements, exhibits and all
other documents as a part thereof, or referred to therein or
incorporated therein) is herein called the "Prospectus".
(b) As of the date of this Agreement, the Prospectus, and at all
times subsequent thereto through the termination of the offering
of all of the Common Stock, as set forth above in Paragraph 1,
the Prospectus (as amended or as supplemented) will contain all
statements which are required to be stated therein in accordance
with the Act and the applicable rules and regulations thereunder
(the "Regulations"), will conform to the requirements thereof in
all material respects, and will not include any untrue statement
of a material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein not
misleading.
(c) The Common Stock conforms to the descriptions thereof contained
in the Prospectus.
(d) The Company is validly existing and in good standing as a
corporation under the laws of the state of Nevada and has the
power and authority to act as described in the Prospectus.
(e) The Company will cooperate with you to ensure that the offering
and sale of the Common Stock complies with the requirements of
Rules of the National Association of Securities Dealers, Inc.
("NASD").
(f) There are no contracts or other documents which are required to
be summarized in the Prospectus which have not been summarized
therein.
(g) Except as set forth in the Prospectus, there is no litigation or
governmental proceeding pending or, to the knowledge of the
Company, threatened which involves the Company and is of a
character which,
(i) might result in a judgment or decree having a material
adverse effect on the business or condition (financial or
otherwise) of the Company or materially affecting its
properties or assets, or
(ii) is required to be disclosed in the Prospectus.
(h) Except as contemplated by this Agreement or as set forth in the
Prospectus, subsequent to the time as of which information is
given in the Prospectus and Supplements thereto and until the
offering is terminated, as set forth in Paragraph 1 above,
(i) the Company has not and will not have incurred any material
liabilities or obligations, direct or contingent, and
2
(ii) there has not and will not have been any change in the
management or capital structure or any material adverse
change in the financial or other condition, net worth or
results of operations of the Company, other than as set
forth in the Prospectus.
(i) The Company has full power and authority to execute, deliver and
perform all agreements referred to in the Prospectus and such
agreements have been duly and validly authorized, executed and
delivered by the Company and are valid and legally binding
agreements of the Company, as the case may be, enforceable in
accordance with their terms.
(j) The execution, delivery and performance of this Agreement by the
Company and the sale and delivery of the Common Stock as provided
herein, will not conflict with, or result in a breach of any of
the terms or provisions of, or constitute a default under any
agreement to which the Company is a party or by which the assets
of it may be bound. No consent, approval, authorization or other
order of any regulatory, administrative or other government body
(other than under the Act and the Regulations) is legally
required for the valid issuance and sale of the Common Stock
under this Agreement.
(k) The financial statements contained in the Prospectus are true and
accurate as of the date thereof and no subsequent events of the
Company has caused such information not to be truthful or
accurate.
3. REPRESENTATIONS AND WARRANTIES OF THE SELLING AGENT.
----------------------------------------------------
You represent and warrant to and agree with the Company as follows:
(a) You are a member in good standing of the NASD and will maintain
such registration and qualification throughout the term of this
Agreement and have full power and authority to act as a Selling
Agent hereunder.
(b) You will comply with all federal laws pertaining to the sale of
the Common Stock, and the Constitution, By-Laws and Rules of the
NASD. You specifically undertake to comply with NASD Conduct
Rules, 2730, 2740, 2420, and 2750.
(c) You will not knowingly offer any shares of the Common Stock in
any jurisdiction where you are not licensed to conduct business
as a broker/dealer.
(d) You have made no sale of the Common Stock prior to the effective
date of the Prospectus and will not make any sales unless
preceded or accompanied by a Prospectus.
3
(e) You agree that all subscriptions for the shares of Common Stock
will be promptly transmitted by noon the next business day to an
Escrow Account established by the Company entitled "Renaissance -
Escrow Account" maintained with the Central Bank & Trust, Co.,
Hutchinson, Kansas.
(f) Your actions as Selling Agent hereunder shall be performed
pursuant to this Agreement and the Prospectus.
(g) That you will not confirm sales of the Common Stock to any
account over which you exercise discretionary authority without
the written consent of the account owner.
4. SALE OF COMMON STOCK.
---------------------
Subject to the sale of minimum shares of Common Stock aggregating
$3,000,000, you will receive a commission of nine percent (9%) on sale
of shares of Common Stock by you. In the event such sales were
directed to you by the Company and you chose to execute such sales,
your commission will be six and one-half percent (6.50%) of the sale
of the shares of Common Stock. All commissioner will be paid in cash
only and computed solely on the amount of initial subscriptions.
All subscribers payments for Shares are to be made payable to
"Renaissance - Escrow Account" with the Central Bank & Trust Co.,
Hutchinson, Kansas and must be promptly transmitted by you to such
escrow (by noon the next business day after receipt) in compliance
with the applicable rules of the NASD and of the Securities
Exchange Act of 1934.
5. FURTHER AGREEMENTS.
-------------------
The Company covenants and agrees that:
(a) The Prospectus shall have become effective on the date of this
Agreement and, to the best of its knowledge, no stop order
suspending the effectiveness of the Prospectus or the institution
or threatening of any proceedings for that purpose have been
initiated. The Company will use its best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible
the withdrawal thereof, if issued. To permit the offer and sale
of all of the Common Stock pursuant to the requirements of the
Act, the Company will prepare and file with the Securities and
Exchange Commission any required filings which, in the opinion of
Xxxxxxx X. Xxxxx, counsel for the Company, may deem necessary or
advisable in connection with the distribution of the Common
Stock; and the Company will advise you promptly of any request of
the Securities and Exchange Commission of an amendment or
supplement to the Prospectus or for additional information.
4
(b) If, at any time while the Prospectus relating to the Common Stock
is required to be delivered under federal or state law, any event
occurs as a result of which, in the opinion of counsel for the
Company, the Prospectus as then amended or supplemented includes
an untrue statement of a material fact or omits to state any
material fact required to be stated therein, or necessary to make
the statements therein not misleading, or if it is necessary at
any time to amend the Prospectus to comply with federal or state
law, the Company will promptly notify you and prepare and file an
appropriate amendment or supplement.
(c) The Company will deliver to you from time to time as many copies
of the Prospectus (and, in the event the Prospectus is amended or
supplemented pursuant to the provisions of this Agreement, or
such amended or supplemented Prospectus) as you may reasonably
request, which copies, as from time to time amended or
supplemented, the Company authorized for use in connection with
the distribution of the Common Stock.
6. PAYMENTS OF EXPENSES.
---------------------
The Company will bear and pay all costs and expenses in connection
with the issuance and registration of the Common Stock, this Agreement
and the preparation, printing, filing, delivery and shipping of the
Prospectus and Supplements, and all costs and expenses incurred or to
be incurred in connection with the sale and delivery of the Common
Stock pursuant to this Agreement. The Company will pay all expenses
for the registration of the shares of Common Stock in such state
jurisdictions that you may reasonably request. In the event the
Offering of the Common Stock is terminated, for any reason, the
Company will reimburse you only for your actual accountable
out-of-pocket expenses, as described in NASD Conduct Rule 2710
and NASD Notice to Members 92-28. Additionally, the Company will
pay up to $10,000 for expenses associated with the due diligence
obligations of participating broker/dealers. The expense is in
the aggregate regardless of the number of participating
broker/dealers.
7. CONDITION OF YOUR OBLIGATIONS.
------------------------------
Your obligations hereunder shall be subject to the accuracy of the
representations and warranties contained herein as of the date hereof,
and as of the date of the Closing of the Common Stock, to the accuracy
of the statements of officers of the Company made pursuant to the
provisions hereof, to the performance by the Company of its obligation
hereunder and to the following other conditions:
(a) The Prospectus shall have become effective on the date of this
Agreement and remain effective during the term of the offering,
as set forth in Paragraph 1 of this Agreement, and during the
term of the offering no stop order shall have been issued and in
5
effect and no proceedings therefore shall have been initiated or
threatened by any regulatory agency.
(b) At the closing of the sale of Common Stock, you shall receive the
favorable opinion of Xxxxxxx X. Xxxxx, counsel for the Company,
dated as of such dates and addressed to you the effect that:
(i) The Company's Restated Articles of Incorporation, and
amendments thereto, have been properly executed, filed and
recorded, are legal and valid instruments under the laws of
the State of Nevada and authorize the Company and its
successors to conduct the business of the Company as
contemplated thereunder and as described in the Prospectus
and Supplements thereto; and the Company is duly organized,
validly existing and in good standing under the laws of the
state of Nevada and has the power and authority to own its
assets and to conduct its business as described in the
Prospectus;
(ii) The issuance of the Common Stock has been duly and
validly authorized by all necessary action on the part of
the Company and, the Common Stock will be validly issued and
non-assessable;
(iii) The Common Stock conform to the descriptions
thereof contained in the Prospectus;
(iv) The Prospectus is in compliance with the Act, and to
the best of such counsel's knowledge no proceedings for a
stop order are pending or threatened;
(v) The Prospectus and any amendments or supplements thereto
(other than the financial statements included therein, as to
which no opinion need be rendered) comply as to form in all
material respects with the requirements of the Act and the
Regulations, and nothing has come to the attention of such
counsel that would lead them to believe that the Prospectus,
as amended or supplemented if amended or supplemented,
contains any untrue statement of a material fact or omits to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
(vi) To the best of such counsel's knowledge, there are no
contracts or other documents required to be summarized
therein and no legal or governmental proceedings pending or
threatened against or involving the properties of the
Company required to be disclosed in the Prospectus;
6
(vii) The Company has full power and authority to execute,
deliver and perform this Agreement, and this Agreement has
been duly and validly authorized, executed and delivered by
the Company and is a valid and legally binding agreement
enforceable in accordance with its terms;
(viii) The execution, delivery and performance of this
Agreement by the Company, as well as the agreements referred
to in the Prospectus, and the sale and delivery of the
Common Stock as provided herein, will not conflict with, or
result in a breach of any of the terms or provisions, or
constitute a default under, the Restated Articles of
Incorporation, as amended, or any applicable law, rule,
regulation, judgment, order or decree of any government,
governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Company or the assets of the
Company, or any agreement known to such counsel to which the
Company is a party or by which the assets of any of them may
be bound; and
(ix) To the best of such counsel's knowledge, no consent,
approval, authorization or other order of any regulatory,
administrative or other governmental body (other than under
the Act) is legally required for the valid issuance and sale
of the Common Stock under this Agreement.
In giving the foregoing opinion, such counsel may rely upon
certificates of the Secretary of State of Nevada with respect to
qualification and good standing.
(b) You should receive from a duly authorized officer of the Company,
a certificate that during the term of the offering, as set forth in
Paragraph 1 of this Agreement,
(i) There shall be no material adverse change in the
condition of the Company, financial or otherwise, or its
results of operations from that as of the latest date as of
which such condition is set forth in the Prospectus, except
as referred to therein;
(ii) There shall be no material transaction entered into by
the Company from the date as of which their financial
condition is set forth in the Prospectus, other than
transactions referred to or contemplated therein and
transactions in the ordinary course of business;
(iii) No action, suit or proceeding, at law or in equity,
shall be pending or, to the knowledge of the Company,
threatened against the Company before or by any Federal or
state commission, board or other administrative agency
wherein an unfavorable decision, ruling or finding would
7
materially adversely affect the business or operations of
the Company; and
(iv) No stop order shall have been issued under the Act and
no proceeding therefore shall be initiated or, to the
knowledge of the Company, threatened.
All such opinions, certificates, letters and documents will be in
compliance with the provisions hereof only if they are satisfactory to
you. Any certificate signed by an officer of the Company, signed as
such, and delivered to you or to your counsel shall be deemed a
representation and warranty by the Company to you as to the statements
made therein.
8. CONDITIONS OF SELLING AGENT.
----------------------------
At the Closing of the sale of Common Stock, there shall be delivered
by you to the Company in form satisfactory to its counsel, the
following:
(a) A certificate executed by your officers, dated as of the Closing
of the Shares, to the effect that you are qualified to conduct
your business; that you are a corporation in good standing in the
state of ________________, that you are a member in good standing
of the NASD, and that this Agreement has been duly and validly
authorized, executed and delivered and is a valid and legally
binding agreement enforceable in accordance with its terms.
9. INDEMNIFICATION.
----------------
Each of us agrees with the other, including our officers, directors,
and shareholders, to indemnify and hold each other harmless from and
against any losses, claims, damages, or liabilities, joint or several,
to which we may become subject under the Act, or otherwise, insofar as
such losses, claims, damages or liabilities arise out of, or are based
upon, any untrue statement or alleged untrue statement of a material
fact regarding any information or representation other than as
contained in the Prospectus and all amendments thereto and the
material identified in the Prospectus, including out-of-pocket
expenses and attorneys fees reasonably incurred in investigating,
defending, or preparing to defend any such action or claim at trial or
on appeal.
10. SURVIVAL OF AGREEMENTS, REPRESENTATIONS, INDEMNITIES.
-----------------------------------------------------
The respective rights of the Company and you, and the agreements,
representations, warranties and other statements of the Company set
forth in or made pursuant to this Agreement, will remain in full force
and effect, regardless of any termination or cancellation of this
Agreement.
8
11. NOTICES.
--------
All communications hereunder, except as specifically provided
otherwise herein, shall be in writing and shall be sent by certified
mail, return receipt requested, to you at
__________________________________________________________________; or
if sent to the Company shall be sent by certified mail, return receipt
requested to 0000 X. X. Xxxx Xxxxxxxxx, Xxxxxx, Xxxxxx 00000.
12. REPORTS.
--------
Copies of all reports which the Company submits to each Shareholder
will also be submitted to you.
13. CONSTRUCTION.
-------------
This Agreement shall be governed by and construed in accordance with
the laws of the State of Kansas.
14. SUCCESSORS.
-----------
This Agreement shall inure to the benefit of and be binding upon your
successors and assigns and the successors and assigns of the Company,
but this Agreement shall not be assignable by a party hereto without
the written consent of the other parties.
If the foregoing correctly sets forth the understanding between you and the
Company, please so indicate in the space provided below for that purpose,
whereupon this letter shall constitute a binding agreement between us.
Very truly yours,
RENAISSANCE DESIGNER GALLERY PRODUCTS, INC.
By: __________________________________
A duly authorized officer
Accepted:
By: _________________________________
A duly authorized officer
9
