SUPERIOR SUPPLEMENTS, INC.
500,000 Units
Each Unit Consisting of two Shares of Common Stock
and two Class A Common Stock Purchase Warrants
AGREEMENT AMONG UNDERWRITERS
____________, 1997
To each of the Underwriters named in Schedule I
to the attached Underwriting Agreement
Dear Sirs:
1. Underwriting Agreement. Superior Supplements, Inc., a Delaware
corporation (the "Company"), proposes to enter into an underwriting agreement
in the form of the Underwriting Agreement attached hereto as Exhibit "A" (the
"Underwriting Agreement") with the underwriters named in Schedule I to the
Underwriting Agreement (the "Underwriters"), acting severally and not jointly,
with respect to the purchase from the Company of 250,000 Units and from PMF,
Inc., the Selling Security Holder an additional 250,000 Units for a total of
500,000 Units (the "Firm Units"). Upon our request, and as provided in Section
3 of the Underwriting Agreement, the Selling Security Holder will also sell to
the Underwriters up to a maximum of an additional 75,000 Units (the "Optional
Units"). Both the Firm Units and the Optional Units are sometimes collectively
referred to herein as the "Units." All of the Units which are the subject of
this Agreement are more fully described in the Prospectus of the Company
described below. Under the terms of the Underwriting Agreement, each of the
Underwriters will agree, in accordance with the terms thereof to purchase the
aggregate number of Firm Units set forth opposite its name in said Schedule I,
subject to adjustment pursuant to Section 12 hereof and Section 14 of the
Underwriting Agreement.
2. Registration Statement and Prospectus. The Units are described in a
registration statement and related prospectus which have been filed with the
Securities and Exchange Commission (the "Commission") under the Securities Act
of 1933, as amended (the "Act"). An amendment to such registration statement
has been or will be filed in which you have been or will be named as one of the
Underwriters of the Units. Copies of the registration statement as filed and as
amended have been delivered to you, and you hereby authorize us to approve on
your behalf any further amendments or supplements which may be necessary or
appropriate. The registration statement, as amended at the time it becomes
effective, is called the "Registration Statement" and the final prospectus
relating to the Units as filed by the Company with the Commission pursuant to
Rule 424(b) under the Act is referred to as the "Prospectus."
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3. Authority of Representative. You authorize us as your
Representative to execute the Underwriting Agreement with the Company in the
form attached with such insertions, deletions or other changes as we may
approve (but not as to the number of, and price of, the Units to be purchased
by you except as provided herein and therein) and to take such action as in our
discretion we may deem advisable in respect of all matters pertaining to the
Underwriting Agreement, this Agreement, the transactions for the accounts of
the several Underwriters contemplated thereby and hereby, and the purchase,
carrying, sale and distribution of the Units.
4. Public Offering. In connection with the public offering of the
Units, you authorize us, in our discretion:
(a) To determine the time and manner of the initial public
offering (after the Registration Statement become effective), the initial
public offering price, and the concessions and reallowances to dealers, to
change the public offering price and such concessions and reallowances after
the initial public offering, to furnish the Company with the information to be
included in the Registration Statement and the Prospectus (and any amendment or
supplement thereto) with respect to the terms of the public offering, and to
determine all matters relating to the public advertisement of the Units and any
communications with dealers or others;
(b) To reserve all or any part of your Units for sale to
retail purchasers (including institutions) and to dealers selected by us
("Selected Dealers") among which may be included any Underwriter (including
ourselves) and each of which shall be a member of the National Association of
Securities Dealers, Inc., and each of which shall agree that in making sales to
purchasers in the United States it will conform to the Rules of Fair Practice
of said Association (or, in the case of a foreign dealer not eligible for
membership in such Association, which shall agree not to reoffer, resell or
deliver Units in the United States, its territories or its possessions, or to
persons whom it has reason to believe are citizens thereof or residents
therein), such reservations for sales to retail purchasers to be as nearly as
practicable in proportion to the respective underwriting obligations of the
Underwriters and such reservations for sales to Selected Dealers to be in such
proportion as we determine, and from time to time to add to the reserved Units
such Units retained by you remaining unsold and to release to you any of your
Units reserved but not sold;
(c) To sell reserved Units as nearly as practicable in
proportion to the respective reservations to retail purchasers at the public
offering price, and to Selected Dealers at the public offering price less the
Selected Dealer's concession pursuant to the Selected Dealer Agreement in
substantially the form attached; and
(d) To buy Units for your account from Selected Dealers at
the public offering price less such amount not in excess of the Selected
Dealer's concession as we may determine.
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After advice from us that the Units are released for public offering,
you will offer to the public in conformity with the terms of offering set forth
in the Prospectus, or any amendment or supplement, such of your Units as we
advise you are not reserved.
You recognize the importance of a broad distribution of the Units
among bona fide investors and you agree to use your best efforts to obtain such
broad distribution and to that end, to the extent you deem practicable, to give
priority to small orders. In offering the Units to Selected Dealers we will
take such action as we deem appropriate to effect a broad distribution.
5. Repurchase of Units Not Effectively Placed for Investment. You are
requested to place for investment those of your Units which are not reserved as
aforesaid. Any Units sold by you (otherwise than through us) which may be
delivered to us against a purchase contract made by us for the account of any
Underwriter prior to termination of the provisions referred to in Section 11 of
this Agreement, shall be purchased by you upon demand from us at the cost of
such purchase plus brokerage commissions and transfer taxes on redelivery.
Units delivered on such repurchase need not be identical to those purchased by
you. In lieu of demand repurchase by you we may in our discretion (i) sell for
your account the Units so purchased by us, at such price and upon such terms as
we may determine, and debit or credit your account with the loss and expense or
net profit resulting from such sale, or (ii) charge your account with an amount
not in excess of the Selected Dealer's concession with respect to such Units
plus brokerage commissions and transfer taxes paid in connection with such
purchase.
6. Payment and Delivery. We shall give you at least 24 hours prior
notice of the Closing Date (as defined in the Underwriting Agreement). You
agree to deliver to us at or before 9:00 a.m., New York City time, on such
Closing Date and at or before 9:00 a.m. New York City time, on the Additional
Closing Date referred to in the Underwriting Agreement if the Optional Units
are purchased, at the office of VTR Capital, Inc., 00 Xxxx Xxxxxx, Xxx Xxxx, XX
00000 (or such other office as we may direct), a certified check or bank
cashier's check payable in New York Clearing House funds to the order of VTR
Capital Inc., as Representative, for the full purchase price of the Units which
you shall have agreed to purchase from the Company less the concession to
Selected Dealers. If you are a member or clear through a member of the
Depository Trust Company ("DTC"), you may, in your discretion, deliver payment
and receive Units through the facilities of DTC. The proceeds shall be
delivered in the amounts required in each case for payment of the full purchase
price by us to the Company against delivery of the Units to us for your
account. We are authorized to accept that delivery and to give a receipt
therefor. We may in our discretion make such payment on your behalf with our
own funds, in which event you will reimburse us promptly upon request. You
authorize us, as your custodian, to take delivery of your Units, registered as
we may direct in order to facilitate deliveries. You also authorize us to hold
for your account such of your Units as we have reserved for sale to retail
purchasers and to Selected Dealers, and to deliver your reserved Units against
such sales. We will deliver your unreserved Units to you promptly and, after we
receive
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payment for reserved Units sold by us for your account, we will remit to you,
as promptly as practicable, an amount equal to the price paid by you for such
Units. As soon as practicable after termination of Sections 4, 5 and 9 and the
first and penultimate sentences of Section 8 of this Agreement (pursuant to
Section 11 hereof) we will deliver to you any of your Units reserved but not
sold. All Units delivered to you pursuant to this Section will be evidenced by
certificates for the Common Stock and Warrants included in the Units in such
denominations as you shall direct by written notice received by us not later
than the second full business day preceding the Closing Date.
7. Authority to Borrow. In connection with the purchase or carrying of
any Units purchased hereunder for your account, you authorize us, in our
discretion, to advance funds for your account, charging current interest rates,
or to arrange loans for your account, and in connection therewith to execute
and deliver any notes or other instruments and hold or pledge as security any
of your Units. Any lender may rely on our instructions in all matters relating
to any such loan. Any of your Units held by us for your account may be
delivered to you for carrying purposes only, and subject to our further
direction.
8. Stabilization and Over-Allotment. To facilitate the distribution of
the Units, you authorize us during the term of this Agreement, or for such
longer period as may be necessary in our discretion, to make purchases and
sales of the Units for your account in the open market or otherwise, for long
or short account, on such terms as we deem advisable and, in arranging sales,
to over-allot. You also authorize us to cover any short position incurred
pursuant to this Section on such terms as we deem advisable. Included in the
authority granted to us by you is the authority to exercise the over-allotment
option to purchase the Optional Units granted by Section 3 of the Underwriting
Agreement. Except with respect to the exercise of such over-allotment option,
all such purchases and sales (other than purchases and sales of the Optional
Units) shall be made for the accounts of the several Underwriters as nearly as
practicable in proportion to their respective underwriting obligations. Your
net commitment under this Section shall not, at the end of any business day,
exceed 15% of your maximum underwriting obligation. You will on our demand take
up at cost or deliver against payment any Units purchased or sold or
over-allotted for your account and, if any such other Underwriter defaults in
its corresponding obligation, you will assume your proportionate share of such
obligation without relieving the defaulting Underwriter from liability. You
will be obligated in respect to purchases and sales made for your account
hereunder whether or not the proposed purchase of the Units is consummated.
Upon request you will advise us of Units retained by you and unsold and will
sell to us for the account of one or more of the Underwriters such of your
unsold Units as we may designate, at the public offering price thereof less
such amount as we may determine, but not in excess of the Selected Dealer's
concession with respect thereto. Until the termination of this Agreement
pursuant to Section 11 hereof, or prior notification by us, we shall have the
sole right to effect stabilizing transactions in the Units. You agree that
until such time you will not make any purchases or sales of any of such Units
except as provided in Section 9 hereof. You also agree to timely provide us
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with the information required by Rule 17a-2(d) under the Securities Exchange
Act of 1934, as amended (the "1934 Act").
9. Open Market Transactions. You agree not to bid for, purchase,
attempt to induce others to purchase, or sell, directly or indirectly, any
Units, except as brokers pursuant to unsolicited orders and as otherwise
provided in this Agreement or in the Underwriting Agreement. You further agree
not to offer the Units for sale until notified by us, as the Representative of
the Underwriters, that they are released for that purpose.
10. Expenses and Settlement. We may charge your account with Selected
Dealer's concessions and all transfer taxes on sales made by us for your
account and with your proportionate share (based upon your underwriting
obligation) of all other expenses incurred by us under the terms of this
Agreement or the Underwriting Agreement, in excess of those reimbursed by the
Company pursuant to Section 8 of the Underwriting Agreement, or in connection
with the purchase, carrying, sale or distribution of the Units. Our
determination of the amount and allocation of expenses shall be conclusive. As
soon as practicable after termination of the provisions referred to in Section
11, the accounts hereunder will be settled, but we may reserve from
distribution such amount as we deem advisable to cover possible additional
expenses. We may at any time make partial distribution of credit balances or
call for payment of debit balances. Any of your funds in our hands may be held
with our general funds without accountability for interest. Notwithstanding any
settlement, you will pay (i) your proportionate share (based upon your
underwriting obligation) of any liability which may be incurred by the
Underwriters, or any of them, based on the claim that the Underwriters
constitute an association, partnership, unincorporated business or other
separate entity, and of any expenses incurred by us, or by any other
Underwriter with our approval, in contesting any such liability, and (ii) any
transfer taxes which may be assessed and paid after such settlement on account
of any sale or transfer for your account.
11. Termination and Settlement. This Agreement will terminate (a) at
the close of business on the 30th day after the date of the Underwriting
Agreement; or (b) on such earlier or later date, not more than 30 days after
the date specified in (a), as we may determine; or (c) on the date of
termination of the Underwriting Agreement, if the same shall be terminated as
provided by its terms.
Upon termination of this Agreement, all authorizations, rights and
obligations hereunder will cease, except (a) the mutual obligation to settle
accounts hereunder, (b) your obligation to pay any claims referred to in the
last paragraph of this Section, (c) the obligations with respect to indemnity
set forth in Section 15 hereof (all obligations of which will continue until
fully discharged), and (d) your obligation with respect to purchases which may
be made by us from time to time thereafter to cover any short position with
respect to the offering, all of which will continue until fully discharged, and
except our authority with
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respect to matters to be determined by us, or by us and the Company, pursuant
to the terms of the Underwriting Agreement, which will survive the termination
of this Agreement.
The accounts arising pursuant to this Agreement will be settled and
paid as soon as practicable after termination. The determination by us of the
amounts to be paid to or by you will be final and conclusive.
Notwithstanding any settlement upon the termination of this Agreement,
you will pay your proportionate share of any amount asserted against and
discharged by the Underwriters, or any of them, based upon the claim that the
Underwriters constitute an association, unincorporated business or other
separate entity, or based upon or arising out of a claim that this Agreement or
the Underwriting Agreement is invalid or illegal for any reason, including any
expense incurred in defending against such claim, and will pay any transfer
taxes which may be assessed thereafter on account of any sale or transfer of
Units for our account.
12. Default by Underwriters. Default by one or more Underwriters
hereunder or under the Underwriting Agreement shall not release the other
Underwriters from their obligations or affect the liability of any defaulting
Underwriter to the other Underwriters for damages resulting from such default.
In case of default under the Underwriting Agreement by one or more
Underwriters, we may arrange for the purchase by others, including
non-defaulting Underwriters, of Units not taken up by such defaulting
Underwriter and you will, at our request, increase pro rata with the other
non-defaulting Underwriters the aggregate principal amount of Units which you
are to purchase, or both, by an amount not exceeding one-ninth of your original
underwriting obligations. In the event any such arrangements are made, the
respective Units to be purchased by non-defaulting Underwriters and by such
others shall be taken as the basis for the underwriting obligations under this
Agreement.
In the event of default by one or more Underwriters in respect of
their obligations under this Agreement, each non-defaulting Underwriter shall
assume its proportionate share of the obligations under this Agreement of each
such defaulting Underwriter (other than, to the extent stated in the first
paragraph of this Section, the purchase obligation of such defaulting
Underwriter).
13. Position of Representative. We shall be under no liability to you
for any act or omission except for obligations expressly assumed by us in this
Agreement, but no obligation on our part shall be implied or inferred. Nothing
shall constitute the Underwriters, or any of them, an association, partnership,
unincorporated business or other separate entity and the rights and liability
of ourselves and each of the Underwriters are several and not joint.
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14. Compensation to Representative. As compensation for our services
as Representative, you agree to pay us $____ per Unit out of the aggregate
underwriting discount attributable to Units which you agree to purchase from
the Company under the Underwriting Agreement. We are authorized to charge your
account with such an amount.
15. Indemnification. You will indemnify and hold harmless each other
Underwriter and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Act to the extent and upon the terms by which each
Underwriter agrees to indemnify the Company in the Underwriting Agreement. Such
indemnity agreement shall survive the termination of any of the provisions of
this Agreement.
In the event that at any time any claim shall be asserted against us
as or as a result of our having acted as Representative, or otherwise involving
the Underwriters generally, relating to the Registration Statement or any
preliminary prospectus or the Prospectus, as from time to time amended or
supplemented, the public offering of the Units or any of the transactions
contemplated by this Agreement, you authorize us to make such investigation, to
retain such counsel and to take such other action as we shall deem necessary or
desirable under the circumstances, including settlement of any claim or claims
if such course of action shall be recommended by counsel retained by us. You
agree to pay to us, on request, your proportionate share (based upon your
underwriting obligation) of all expenses incurred by us (including, but not
limited to, the disbursements and fees of counsel so retained) in investigating
and defending against such claim or claims, and your proportionate share (based
upon your underwriting obligation) of any liability incurred by us in respect
of such claim or claims, whether such liability shall be the result of a
judgment against us or as a result of any such settlement.
16. Blue Sky Matters. We shall not have any responsibility with
respect to the right of any Underwriter or other person to sell Units in any
jurisdiction, notwithstanding any information we may furnish in that
connection. You hereby authorize us to take such action as may be necessary or
advisable to qualify the Units for offering and sale in any jurisdiction. We
have caused to be filed Further State Notices respecting the Units to be
offered to the public in New York in the form required by, and pursuant to, the
provisions of Article 23A of the General Business Law of the State of New York.
17. Title to Units. The Units purchased for the respective accounts of
the several Underwriters shall remain the property of those Underwriters until
sold; and no title to such Units shall in any event pass to us, as
Representative, by virtue of any of the provisions of this Agreement.
18. Capital Requirements. Unless the provisions of clause (b) of the
second sentence of the last paragraph of this Agreement are applicable to you,
you confirm that your commitment hereunder will not result in any violation of
Section 8(b) or 15(c) of the 1934 Act or in any violation of any of the rules
and regulations promulgated under the
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1934 Act, including, without limitation, Rule 15c3-1, or any provision of any
applicable rules of any securities exchange to which you are subject or of any
restriction imposed upon you by such exchange.
19. Notices and Governing Laws. Any notice from you to us shall be
mailed or transmitted by any standard form of written telecommunication to us
at 00 Xxxx Xxxxxx, Xxx Xxxx, XX 00000. Any notice from us to you shall be
mailed or transmitted by any standard from of written telecommunication to you
at your address as set forth in your Underwriter's Questionnaire. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York (without regard to conflicts of laws principles).
We represent that we are a member in good standing of the National
Association of Securities Dealers, Inc. You represent that you are (a) a member
in good standing of such Association or (b) a foreign dealer which is not
eligible for membership in such Association, in which event you will make sales
of any Units only outside the United States and its territories and possessions
to persons who are not citizens or residents of the United States or its
territories or possessions, and that in making any such sales, you will comply
with such Association's Interpretation with respect to Free-Riding and
Withholding. You further represent that: (i) you will notify each of your
customers with respect to whose account you have investment discretion and to
whose account you intend to sell any Units that you propose to sell Units to
such account as a principal and you will obtain the customer's written consent
to such sale; and (ii) you will comply with the requirements of Rule 15c2-8
under the 1934 Act and have distributed or are distributing copies of a
Preliminary Prospectus to all persons to whom you then expected to mail
confirmations of sale, not less than 48 hours prior to the time it is expected
to mail such confirmations.
Very truly yours,
VTR CAPITAL, INC.
By: ________________________________
As Representative of the several
Underwriters
Confirmed and accepted as of the date first above written.
________________________________
Attorney-in-fact for the several
Underwriters named in Schedule I
to the Underwriting Agreement
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