PREMIER CONCEPTS, INC.
AGREEMENT AMONG UNDERWRITERS
__________________, 1997
Cohig & Associates, Inc.
As Representative of the Several Underwriters
Cohig & Associates, Inc.
0000 Xxxxx Xxxxxxxx Xxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Dear Sirs:
We wish to confirm the agreement among you, Cohig & Associates, Inc., as
Representative of the several Underwriters (the "Representative"), and each of
the other Underwriters named in Schedule I to the Underwriting Agreement which
is attached hereto as EXHIBIT A and by reference incorporated herein
("Underwriting Agreement") (all such parties being herein called the
"Underwriters"), with respect to the purchase by the Underwriters severally, and
not jointly, from Premier Concepts, Inc. (the "Company") of the respective
number of Securities (the "Securities") set forth in the Underwriting
Agreement. The Securities consist of one share (a "Share") of Common Stock and
one Common Stock Purchase Warrant (a "Warrant").
We understand that changes may be made in those who are to be Underwriters
and in the respective numbers of Securities to be purchased by them, but that
the number of Securities to be purchased by us as set forth in the Underwriting
Agreement will not be changed without our consent except as provided herein or
in the Underwriting Agreement. The aggregate number of the Securities which any
Underwriter will be obligated to purchase from the Company pursuant to the terms
of the Underwriting Agreement or as subject to adjustment pursuant to the terms
of the Underwriting Agreement is herein called the "Underwriting Obligation" of
that Underwriter. Unless otherwise indicated, the definition of terms used
herein shall have the same meaning as in the Underwriting Agreement.
THE UNDERWRITERS SHALL ONLY OFFER AND SELL THE SECURITIES TO CUSTOMERS
TOGETHER ON THE BASIS OF ONE SHARE AND ONE WARRANT.
1. AUTHORITY AND GENERAL POSITION OF THE REPRESENTATIVE. We hereby
authorize you, as our Representative and on our behalf, (a) to enter into the
Underwriting Agreement with the Company, substantially in the form attached
hereto as Exhibit A, but with such changes therein as in your judgment will not
be materially adverse to the Underwriters, providing for the purchase by us,
severally and not jointly, from the Company, at a price per Share and at a price
per Warrant equal to the public offering price (the "Offering Price") less the
Underwriting Discount as set forth in the Registration Statement (equal to ten
percent (10%) of the Initial Offering Price of the Shares and Warrants), of the
number of the Securities set forth opposite our name in Schedule I of the
Underwriting Agreement, (b) to exercise all the authority and discretion vested
in the Underwriters
and in you by the provisions of the Underwriting Agreement, and (c) to take
all such action as you in your discretion may deem necessary and advisable in
order to carry out the provisions of the Underwriting Agreement and of this
Agreement and in furtherance of the sale and distribution of the Securities.
We authorize you to file with any governmental agency or authority any report
which in your judgment is necessary or desirable in connection with the
offering of the Securities, and we agree to furnish you any information
needed for each such report.
Without limiting the foregoing, you are authorized, with respect to the
Underwriting Agreement and this Agreement, in your sole discretion, to (i)
postpone the Closing Date or any other time or date specified therein, (ii)
exercise any right of cancellation or termination, (iii) arrange for the
purchase by other persons (including yourselves or any other Underwriter) of any
Securities not taken up by any defaulting Underwriter or by the other
Underwriters, (iv) consent to such changes in the Underwriting Agreement as you
deem advisable in your sole discretion, and (v) enter into agreements on behalf
of the Underwriters in furtherance of any of any other conferred authority.
Your authority as Representative of the several Underwriters shall include
the taking of such action as you may deem advisable in respect of all matters
pertaining to any and all offers and sales of the Securities, including the
right to make any modifications which you consider necessary or desirable in the
arrangements with Selected Dealers or others. You shall be under no liability,
for or in respect of, (i) the value, validity or form of the Securities and
underlying securities, (ii) the form, accuracy or legal sufficiency of the
Registration Statement, the Prospectus, agreements or other instruments executed
by the Company or others, (iii) the delivery of the Securities, or (iv) the
performance by the Company or by others of any agreement on its or their part.
Nor shall you as such Representative or otherwise be liable under any of the
provisions hereof or for any matters connected herewith, except for liabilities
arising from actions not taken in good faith and no obligation not expressly
assumed by you as such Representative herein shall be implied from this
Agreement.
In representing the Underwriters hereunder, you shall act as the
Representative of each of them, respectively. Nothing herein contained shall
constitute the several Underwriters partners with you or with each other, or
render any Underwriter liable for the commitments of any other Underwriter,
except as otherwise provided herein or in the Underwriting Agreement. The
commitments and liabilities of each of the Underwriters are several in
accordance with their respective Underwriting Obligation and are not joint.
2. PUBLIC OFFERING. We authorize you to manage the offering of the
Securities and to take such action as you deem advisable with respect thereto.
The public offering of the Securities is to be made as soon after the
Registration Statement becomes effective as in your judgment is advisable, and
the public offering of the Securities is to be made at the public offering price
specified in the Final Prospectus, subject to other terms and conditions as you
determine in accordance with the Underwriting Agreement. We authorize you as
our Representative to make any changes in the public offering price and other
terms of the Offering as you deem advisable, in your sole discretion, by reason
of changes in general market conditions or otherwise. We understand that you
will advise us when the Securities are released for public offering, when the
-2-
Registration Statement relating to such offering becomes effective and the price
at which the Securities are to be offered.
3. ACCOUNTING FOR SALES OF SECURITIES. The Underwriting Discount, as set
forth in the Registration Statement, shall consist of a Management Fee, an
Underwriting Fee, and a Selling Concession. On or before the Effective Date of
the Registration Statement you shall inform us, by facsimile, telephone or
similar communication, of what portion of the Underwriting Discount is allocated
to the Management Fee, Underwriting Fee and Selling Concession.
The Securities constituting our Underwriting Obligation may be delivered to
us for resale by us or may be sold by you for our account as provided in Section
5 hereof. With respect to Securities delivered to us, you shall be entitled to
the Management Fee and we shall be entitled to the Selling Concession and the
Underwriting Fee. With respect to Securities retained by you and sold for our
account, you shall be entitled to the Management Fee and the Selling Concession
and we shall be entitled to the Underwriting Fee.
You shall maintain a separate account with respect to our participation in
this Offering. With respect to Securities to be delivered to us for resale by
us, such account shall be debited in the amount we have agreed to pay the
Company for the Securities plus the amount of the Management Fee with respect to
such Securities. With respect to Securities sold by you for our account and for
which payment in full has been received by you, the account shall be credited
with the amount of the Underwriting Fee with respect to such Securities. With
respect to Securities reserved for sale by you for our account and that have not
been sold or for which payment in full has not been received by you, our account
shall be debited by the amount that we have agreed to pay to the Company for
such Securities; provided, however, that we may request delivery to us of any
such Securities remaining unsold or unpaid for on the Closing Date, in which
event such Securities shall be accounted for as provided above for Securities
delivered to us for resale by us. Our account shall be credited in the amount
of funds delivered or credited to you as provided in Section 4 hereof.
If we agree at any time to purchase Securities in addition to those
constituting our Underwriting Obligation, our account shall be adjusted with
respect to such Securities in the same manner as if those Securities had been a
part of our Underwriting Obligation.
4. SETTLEMENT OF ACCOUNT. At or before the close of business, Denver,
Colorado time, on the last business day prior to the Closing Date, we shall
deliver to you, by wire or by certified or official bank check in United States
funds payable to your order, the full aggregate public offering price of the
Securities delivered to us for resale by us. After the Closing Date, we agree
to promptly remit to you any debit balance in our account and you agree to remit
to us any credit balance in our account after such adjustments as are provided
for herein and in the Underwriting Agreement. You shall not be accountable for
any interest on any credit balance in our account. The determination by you of
the amounts to be paid to or by us shall be final and conclusive.
If we fail (whether or not such failure shall constitute a default
hereunder) to deliver to you, or you fail to receive, our delivery of funds for
the Securities which we have agreed to purchase, at the time and in the manner
provided in this Section 4, you, individually and not as Representative
-3-
of the Underwriters, are authorized (but shall not be obligated) to make
payment to the Company for such Securities for our account, but any such
payment by you shall not relieve us of any of our obligations hereunder or
under the Underwriting Agreement, and we agree to repay you on demand the
amount, together with associated costs, so advanced for our account.
On the Closing Date of the offering, you are authorized to accept delivery
of the certificates representing the securities underlying the Securities
purchased for our account and to give a receipt therefor.
We authorize you to deliver our Securities, and any other securities of the
Company purchased by you for our account pursuant to the provisions of Section 7
hereof, against sales of the Company's securities made by you for our account
pursuant to any provisions of this Agreement. You agree to cause to be
delivered to us, as soon as practicable after the Closing Date referred to in
the Underwriting Agreement or earlier in your discretion, the Securities
representing such part of our Underwriting Obligation as shall not have been
sold or reserved for sale by you for our account. In any case, if any of the
Securities reserved for sale in Retail Sales or to Selected Dealers and foreign
dealers shall not be purchased and paid for in due course as contemplated
hereby, we agree (i) to accept delivery when tendered by you of any of the
Securities so reserved for our account and not so purchased and paid for, and
(ii) in case we shall have received payment from you in respect of any such
Securities, to reimburse you on demand for the full amount which you shall have
paid us in respect of such Securities.
Notwithstanding anything above to the contrary, you may in your discretion
deliver to us through the facilities of The Depository Trust Company ("DTC") the
certificates representing the securities comprising the Securities purchased by
us that are not sold or reserved for sale by you and cause DTC to debit us and
to credit you an amount representing the full aggregate public offering price of
such Securities and you, in turn, shall credit our account by such amount in
accordance with Section 3 hereof.
5. RESERVATION OF SECURITIES. We authorize you, with respect to our
Underwriting Obligation, to reserve for sale and sell and deliver for our
account any or all of such Securities in amounts determined in your discretion
(a) to institutional and other retail purchasers selected by you, (b) to dealers
(including any Underwriters) selected by you who are members of the National
Association of Securities Dealers, Inc. (the "NASD"), and (c) to foreign dealers
(including any Underwriters) who are not eligible for membership in the NASD who
agree to make no sales in the United States, its territories, or its possessions
or to persons who are citizens thereof or residents therein and to comply with
the Interpretation of the NASD with respect to Free-Riding and Withholding. You
will advise us (i) of the number of Securities purchased by us that we will
retain for sale for our account; (ii) if applicable, the number of Securities
not purchased by us that you have allocated to us for resale and for which our
account shall be debited as provided in Section 3 hereof; and (iii) the amount
the Underwriters have agreed to pay the Company for the Securities plus the
Management Fee and Underwriting Fee with respect to such Securities. With your
consent, any Securities reserved by you for sale for our account but not sold
and paid for, may be released to us for direct sale, in which event the number
of Securities reserved shall be correspondingly reduced. We authorize you to
fix the concession to dealers and the reallowance
-4-
to dealers and, after initial public offering of the Securities, to make
changes therein you deem advisable.
When requested by you from time to time, we will advise you of the number
of Securities retained by, released, or allocated to us for resale that remain
unsold. You may at any time prior to the Closing Date (a) reserve such unsold
Securities for sale by you for our account or (b) purchase any such unsold
Securities that, in your opinion, are needed to enable you to make deliveries on
your behalf or for the accounts of the several Underwriters pursuant to this
Agreement. Such purchases, if made, will be accounted for as Securities
retained by you to be sold for our account.
6. CREDIT ARRANGEMENTS. We authorize you, in carrying out the provisions
of this Agreement, to advance your own funds (charging then current interest
rates) or to arrange loans for our account, and in connection therewith to
execute and deliver any notes or other instruments and to hold or pledge as
security therefor any Securities or other securities of the Company purchased
pursuant to this Agreement for our account that you may be holding for our
account. Any third party lender is hereby authorized to accept your
instructions with respect to all matters relating to such loans. You shall
promptly remit to us on credit to our account the proceeds of any loan made on
our behalf. Nothing contained in the foregoing, however, shall be construed as
requiring you to advance funds or negotiate for loans with third parties for the
purpose of meeting any of our obligations under this Agreement or the
Underwriting Agreement.
7. STABILIZATION; TRADING. We authorize you, at any time during the
term of this Agreement or for such longer period necessary to cover any short
position or to liquidate any long position incurred under the provisions of this
Agreement, (a) to make purchases and sales of Securities in the open market or
otherwise, in addition to purchases and sales made under the authority of
Section 5 hereof, either for long or short account, on terms and at prices as
you determine and (b) in arranging for sales of Securities pursuant to Section 5
hereof to over-allot and to make purchases for the purpose of covering any
over-allotments made. Any such purchases, sales, and over-allotments may, but
are not required to, be made, at your sole discretion, for the accounts of the
several Underwriters and if so made shall be as nearly as is practicable in
proportion to their respective Underwriting Obligation; provided, however, that
at no time shall our net commitment under this Section 7 for long and short
account exceed 15 percent of our Underwriting Obligation. Any securities that
have been purchased by you for stabilizing purposes before the execution of this
Agreement may at your option be treated as having been purchased for the
accounts of the several Underwriters pursuant to the foregoing authorization.
We agree to take up at cost on demand any securities so purchased for our
account and deliver on demand any securities sold or over-allotted for our
account. We will advise you from time to time, at your request, of the amount
of securities remaining unsold that were delivered to us pursuant to this
Section 7.
You will notify us promptly if you engage in any transaction hereunder that
in your judgment may be deemed a "stabilizing transaction" within the meaning of
the applicable rules of the Securities and Exchange Commission (the
"Commission"). We will not effect any stabilizing purchases without your prior
written consent.
-5-
If, pursuant to the provisions of the first paragraph of this Section 7 and
prior to the termination of this Agreement (or prior to an earlier date
determined by you), you purchase or contract to purchase for the accounts of the
several Underwriters in the open market or otherwise any Securities that were
retained by or released to us for direct sale, or any Securities that may have
been issued in exchange for such Securities, we authorize you either to charge
our account with an amount equal to the Selling Concession with respect thereto,
which amount shall be credited against the cost of such Securities, or to
require us to repurchase such Securities, and to debit our account for such
purchase, at a price equal to the total cost of such purchase, including
commissions, if any, and transfer taxes on the redelivery.
8. OPEN MARKET TRANSACTIONS. We agree that, except with your consent and
except as herein provided upon advice from you, we will not make purchases or
sales on the open market or otherwise or attempt to induce others to make
purchases or sales, either before or after the purchase of the Securities, of
any securities of the Company, and prior to the completion of our participation
in the distribution of the Securities (as defined in Regulation M promulgated by
the Commission under the Securities Exchange Act of 1934 (the"Exchange Act").
We will otherwise comply with all applicable laws and requirements, including
Regulation M. Nothing contained in this Section 8 shall prohibit us from acting
as broker or agent in the execution of unsolicited orders of customers for the
purchase or sale of any securities of the Company.
9. BLUE SKY. Prior to the commencement of the Offering by the
Underwriters, you will inform us as to the states under the respective
securities or blue sky laws of which it is believed that the Securities have
been qualified or are exempt for sale, but you do not assume any responsibility
or obligation as to the accuracy of such information or as to the right of any
Underwriter or dealer to sell the Securities in any jurisdiction.
In arranging sales of the Securities for our account hereunder, you are
authorized to sell our Securities to any particular Selected Dealer or other
buyer or to one or more other Underwriters at the Offering Price less such
amount, not in excess of the Selling Concession, as you may determine, if you
deem it advisable because of the securities or blue sky laws of any
jurisdiction, The transfer tax on any such sales among Underwriters shall be
treated as an expense and charged to the respective accounts of the several
Underwriters in proportion to their respective Underwriting Obligation.
10. TERMINATION AND SETTLEMENT. Unless sooner terminated by you, this
Agreement shall terminate 45 full calendar days from the Effective Date or the
date of the Final Prospectus, whichever is later, but may be extended by you for
a period of time not exceeding an additional 30 calendar days by notice to us to
such effect. You may in your discretion on notice to us, prior to the
termination of this Agreement, terminate or suspend any of the terms or
conditions of the Offering.
Upon termination of this Agreement, all authorizations, rights, and
obligations hereunder will cease, except (a) the mutual obligations to settle
accounts hereunder, (b) our obligations to pay any amounts referred to in the
last paragraph of this Section 10, and (c) the indemnity and other agreements
set forth in Section 11 hereof, all of which shall continue until fully
discharged. No such termination shall affect any obligations of any defaulting
Underwriter.
-6-
If any Underwriter defaults in its obligations to pay amounts due from the
Underwriter pursuant to the Underwriting Agreement and this Agreement, we will
assume our proportionate share (determined on the basis of the respective
Underwriting Obligations of the nondefaulting Underwriters) of its obligation to
the extent required by the Underwriting Agreement, but this assumption shall not
affect any obligations of any defaulting Underwriter. Such obligation shall be
eliminated to the extent that such obligation would cause the Underwriter to be
in violation of any financial responsibility rule of the Securities and Exchange
Commission.
We authorize you to charge our account with any transfer taxes on sales or
other transfers made for our account.
Notwithstanding any settlement on the termination of this Agreement, we
agree to pay our proportionate share (based on our Underwriting Obligation) of
(a) all expenses incurred by you in investigating or defending against any
claim, proceeding, or inquiry that is asserted, instituted, or initiated by any
person (including any governmental or regulatory body), other than an
Underwriter, in connection with the Registration Statement or Final Prospectus
or any amendment or supplement thereto, or any Preliminary Prospectus relating
to the offering, or any claim of invalidity of the Underwriting Agreement; and
(b) any liability, including counsel fees and expenses, incurred by you in
respect of any such claim, proceeding, or inquiry, whether such liability is the
result of a judgment or the result of any settlement agreed to by you, other
than any liability, fee, or expense as to which you receive indemnity pursuant
to Section 11 hereof or pursuant to the Underwriting Agreement. We also agree
to pay any transfer taxes that may be assessed and paid after settlement on
account of any sales or transfer hereunder for our account.
11. INDEMNITY. Each Underwriter, including the Representative, agrees to
indemnify and hold harmless each other Underwriter, any person who controls any
other Underwriter within the meaning of either Section 15 of the Securities Act
of 1933 (the "Securities Act") or Section 20 of the Exchange Act, and any
successor of any other Underwriter or of any such controlling person, all to the
extent that each Underwriter will be obligated in the Underwriting Agreement to
indemnify and hold harmless the Company and its respective directors, officers
and controlling persons, and regardless of any investigation made by or on
behalf of any Underwriter or any person controlling an Underwriter.
12. MISCELLANEOUS. We hereby confirm that we have examined the
Registration Statement relating to the Securities, including the related
Prospectus and the amendment(s) thereto filed with the Commission in respect of
the Securities, that we are willing to accept the responsibilities of an
Underwriter thereunder and that we are willing to proceed as contemplated
therein. We are familiar with the terms of the offering that are to be set
forth in the proposed amendment to the Registration Statement. In addition, we
confirm that the information relating to us that has been furnished to the
Company for use therein is correct. You are authorized to approve on our behalf
such proposed amendment and any further amendments or supplements to the
Registration Statement or the Prospectus.
-7-
WE CONFIRM THAT WE ARE EITHER (a) A MEMBER OF THE NASD AND THAT OUR
OBLIGATION TO PURCHASE SECURITIES PURSUANT TO THE UNDERWRITING AGREEMENT WILL
NOT RESULT IN A VIOLATION OF THE FINANCIAL RESPONSIBILITY REQUIREMENTS OF RULE
15c3-1 OF THE COMMISSION UNDER THE EXCHANGE ACT OR OF ANY SIMILAR PROVISIONS OF
ANY APPLICABLE RULES OF ANY SECURITIES EXCHANGE OR ASSOCIATION TO WHICH WE ARE
SUBJECT OR OF ANY RESTRICTION IMPOSED UPON US BY ANY SUCH EXCHANGE OR ANY
GOVERNMENTAL AUTHORITY; OR (b) A FOREIGN DEALER WHO IS NOT ELIGIBLE FOR
MEMBERSHIP IN THE NASD WHO HEREBY AGREES TO MAKE NO SALES WITHIN THE UNITED
STATES, ITS TERRITORIES, OR ITS POSSESSIONS (EXCEPT THAT WE MAY PARTICIPATE IN
GROUP SALES) OR TO PERSONS WHO ARE CITIZENS THEREOF OR RESIDENT THEREIN, AND IN
MAKING OTHER SALES TO COMPLY WITH THE NASD INTERPRETATION ON FREE-RIDING AND
WITHHOLDING.
WE AGREE THAT WE WILL NOT SELL ANY OF THE SECURITIES TO BE DELIVERED TO US
TO ACCOUNTS AS TO WHICH WE HAVE DISCRETIONARY AUTHORITY WITHOUT THE PRIOR
SPECIFIC WRITTEN APPROVAL OF THE CUSTOMER. WE REPRESENT TO YOU THAT ANY SUCH
SALES WILL BE MADE IN CONFORMITY WITH ALL APPLICABLE RULES CONCERNING
SUITABILITY, DISCLOSURE, AND THE LIKE.
We represent that we will comply with the provisions of Rules 2470, 2730,
2740, and 2750 of the NASD Rules of Conduct with respect to our participation in
this Offering. If a foreign dealer, we will comply with such sections as if we
were a member of the NASD.
We will not advertise with respect to the offering or sale of the
Securities until after the first public advertisement made by you on behalf of
the Underwriters and then only with your consent and at our own expense.
We agree that with respect to any matters connected with this Agreement or
action taken by you pursuant to it, you shall act only as agent of the
Underwriters and shall be under no liability to us in any such respect or in
respect of the form of, or the statements contained in, or the validity of, any
Preliminary Prospectus, the Registration Statement, the Final Prospectus, or any
amendment or supplement to any of them; for any report or other filing made by
you for us or on our behalf under this Agreement; for or in respect of the
validity or value of or title to any Securities; the performance by the Company
or others of any agreement on its or their part; or the qualification of the
sale of Securities under the laws of any jurisdiction; except for lack of good
faith, for obligations expressly assumed by you in this Agreement (and no
obligations on your part will be implied or inferred from confirmation or
acceptance of this Agreement), and for any liability imposed by the Securities
Act.
Any notice from you to us shall be deemed to have been duly given if sent
or transmitted by mail, facsimile, or similar means to us at our address as set
forth in the current CCH NASD Manual or at such other address of which we shall
have advised you in writing.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Colorado.
-8-
The section headings in this Agreement have been inserted as a matter of
convenience of reference and are not part of this Agreement.
This Agreement is being executed by us and delivered to you in duplicate.
Please indicate your receipt of identical agreements for each of the other
Underwriters by confirming this Agreement, whereupon it shall constitute a
binding contract between us.
Very truly yours,
By:
--------------------------------------------
Attorney-in-fact for each of the several
Underwriters named in Schedule I to the
Underwriting Agreement
Confirmed as of the date first mentioned above:
COHIG & ASSOCIATES, INC.
By:
----------------------------------
Title:
----------------------------------
-9-
