Exhibit 1.3
AGREEMENT AMONG UNDERWRITERS
Agreement dated as of June __, 1997 between Xxxxxx Capital, Inc.
("Xxxxxx") and Aegis Capital Corporation. ("Aegis") (Xxxxxx and Aegis are
herein collectively referred to as the "Underwriters").
W I T N E S S E T H :
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WHEREAS, Intercorp Excelle Inc. (the "Company") has filed with the
Securities and Exchange Commission ("Commission"), a registration statement
on Form SB-2 (Registration No. 333-____) and one or more amendments thereto
(collectively, the "Registration Statement") for the public sale ("Offering")
through the Underwriters, severally and not jointly, of 1,000,000 shares of
common stock, no par value per share (the "Common Stock"), and 1,000,000
common stock purchase warrants (the "Warrants"), 500,000 shares of Common
Stock and 500,000 Warrants to be underwritten by Xxxxxx, and 500,000 shares
of Common Stock and 500,000 Warrants to be underwritten by Aegis, plus an
option, exercisable for a period of 45 days from the effective date of the
Registration Statement, to purchase up to an additional 150,000 shares of
Common Stock and up to 150,000 Warrants to cover over-allotments, if any (the
"Over-allotment Option"); and
WHEREAS, the Company and the Underwriters are, on the date hereof,
entering into an underwriting agreement (the "Underwriting Agreement") which
provides that the Underwriters will (a) purchase the Common Stock and
Warrants (collectively, the "Securities"), severally and not jointly, at a
price that reflects a 10% discount, (b) receive an expense allowance equal to
3% of the gross proceeds of the offering the ("Expense Allowance"), and (c)
be sold, for nominal consideration, five-year warrants to purchase up to an
aggregate of 100,000 shares of Common Stock and up to 100,000 Warrants (the
"Underwriters' Warrants").
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. UNDERWRITING FEES AND EXPENSES. Of the 10% underwriting discount per
share of Common Stock and Warrant, each Underwriter shall receive 2% with
respect to underwritten Securities and an additional 8% with respect to
Securities actually sold. Each Underwriter shall bear its own expenses in
connection with the transactions contemplated herein, provided that the
following expenses shall be deducted from the Expense Allowance prior to
distribution: fees and disbursements of Singer Xxxxxxxx LLP, counsel to the
Underwriters in connection with the transaction (other than for blue sky matters
which, pursuant to the Underwriting Agreement, shall be borne by the Company).
It is understood amount the Underwriters that Singer Xxxxxxxx LLP is acting as
legal counsel for both the Underwriters and that the interests of one
Underwriter is not
superior to the other. After such deductions, the balance of the Expense
Allowance shall be divided equally among the Underwriters. However, any
reduction in compensation payable to the Underwriters in connection with the
Offering as a result of the determination of the National Association of
Securities Dealers, Inc. that compensation had previously accrued to one, but
not both Underwriters, shall be deducted in its entirety from the compensation
otherwise payable to such Underwriter pursuant to the terms of this Agreement
2. PURCHASE OF COMMON STOCK AND WARRANTS AND OVER-ALLOTMENT OPTION. Each
Underwriter shall underwrite, severally and not jointly, the Common Stock and
Warrants set forth in the first Whereas clause hereof. Xxxxxx shall retain
500,000 shares of Common Stock and 500,000 Warrants; and Aegis shall retain
500,000 shares of Common Stock and 500,000 Warrants. Xxxxxx and Aegis shall
have the mutual right to exercise the Over-allotment Option on a pro-rata basis.
3. UNDERWRITERS' WARRANTS. Each Underwriter shall be entitled to
purchase a pro rata portion of the Underwriters' Warrants.
4. NOMINEE TO BOARD OF DIRECTORS. Xxxxxx and Aegis shall be entitled to
designate one mutually agreed upon nonvoting advisor to the Company's Board of
Directors as set forth in the Underwriting Agreement.
5. INDEMNITY AND CONTRIBUTION.
5.1. Each Underwriter agrees to indemnify and hold harmless the other
Underwriter, its officers, directors, partners, employees, agents, and counsel
and each person, if any, who controls any such Underwriter within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act ("Control Persons"),
with respect to written information provided to the Company by such Underwriter
as stated in Section 2(c) of the Underwriting Agreement, to the extent and upon
the terms which the Underwriters agree to indemnify and hold harmless the
Company as set forth in the Underwriting Agreement.
5.2. Each Underwriter will pay as contribution, its ratable share
(based upon the number of shares of Common Stock or Warrants underwritten by
each) of any losses, liabilities, claims, or damages, joint or several, paid or
incurred by any Underwriter to any person other than an Underwriter, arising out
of, based upon, or in connection with any untrue statement or alleged untrue
statement of any material fact contained in any preliminary prospectus, the
Registration Statement, the Prospectus (as from time to time amended or
supplemented), any amendment or supplement thereto, or in any application or
other document or communication executed by or on behalf of the Company or based
upon written information furnished by or on behalf of the Company filed in any
jurisdiction in order to qualify the Units under the "blue sky" or securities
laws thereof or filed with the Commission or any securities exchange, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading (other
than a statement or omission made in reliance upon and
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in conformity with written information furnished to the Company as stated in
Section 2(c) of the Underwriting Agreement with respect to any Underwriter by or
on behalf of such Underwriter
expressly for inclusion therein); and will pay its pro rata portion of all
attorney's fees and any and all expenses whatsoever reasonably incurred in
investigating, preparing, or defending against any such loss, liability, claim,
or damage, or any action in respect thereof and any amounts paid in settlement
of any claim or litigation. In determining the amount of each of the
Underwriters' obligation under this Section 5, appropriate adjustment will be
made to reflect any amounts received by any Underwriter in respect of such
untrue statement, alleged untrue statement, omission, or alleged omission from
the Company pursuant to Section 10 of the Underwriting Agreement or otherwise.
There shall be credited against any amount paid or payable by the Underwriters
pursuant to this Section 5.2 any loss, liability, claim, damage, or expense
which is reasonably incurred as a result of any such claim asserted against the
Underwriters (other than fees and disbursements of an Underwriter's separate
counsel if such counsel is not jointly approved by the Underwriters as provided
in the next sentence), and if such loss, liability, claim, damage, or expense is
incurred by the Underwriters subsequent to any payment by the Underwriters
pursuant to this Section 5.2, appropriate provision shall made to effect such
credit, by refund or otherwise. If any such claim is asserted or any action in
connection therewith as we jointly deem necessary or desirable, including
retaining counsel for the Underwriters, and in the Underwriters' joint
discretion separate counsel for any particular Underwriter and the fees and
disbursements of any counsel so retained shall be included in the amounts
payable pursuant to this Section 5.2.
5.3. The indemnity and contribution contained in this Section 5 shall
remain operative and in full force and effect regardless of any investigation
made by or on behalf of such other Underwriter or its officers, directors,
partners, employees, agents, counsel, or Control Persons (if any) and shall
survive the delivery of the Units to the Underwriters and the termination of
this Agreement. In determining amounts payable pursuant to Section 5.2 hereof,
any loss, liability, claim, damage or expense incurred by any person who
controls any Underwriter within the meaning of Section 15 of the Act or any
Underwriter which has been incurred by reason of such control or other
relationship shall be deemed to have been incurred by such Underwriter. Any
Underwriter shall have the right to employ its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Underwriter. No
Underwriter may settle any such claim or action without the prior written
consent of the other. Whenever an Underwriter receives notice of the assertion
of any claim or the commencement of any action to which the provisions of
Section 5.2 hereof would be applicable, such Underwriter will give prompt notice
thereof to the other Underwriter.
6. REDEMPTION OF WARRANTS. It is hereby agreed that during such period
as the redemption of the Warrants requires the mutual consent of the
Underwriters pursuant to the Underwriting Agreement.
7. BOARD OF DIRECTOR DESIGNEE. Pursuant to the provisions of the
Underwriting
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Agreement, a mutually agreed upon designee of Xxxxxx and Aegis will be invited
to attend meetings of the Board of Directors of the Company. Subject to
obligations of confidentiality, upon the request of any other Underwriter, the
designee will inform such Underwriter on a timely basis of any material
information regarding the Company or its business or operations. Provided,
however, that nothing contained herein shall obligate such designee to attend
any meeting or meetings of the Board of Directors.
8. MISCELLANEOUS. This Agreement is made solely for the benefit of the
Underwriters and their respective officers, partners, agents, counsel and
Control Persons and their respective successors and assigns, and not other
person shall acquire or have any rights by virtue of this Agreement. The
validity, interpretation and construction of this Agreement and of each part
hereof will be governed by, and construed in accordance with, the laws of the
State of New York without giving effect to conflicts of laws. This Agreement
constitutes the parties' full agreement and may not be modified by anything
other than a writing signed by the parties. This Agreement may be executed in
any number of counterparts, each of which may be deemed an original and all of
which together will constitute one and the same instrument.
All notices, requests, demands and other communications which are required
or permitted to be given under this Agreement shall be in writing and shall be
deemed to have been duly given upon the delivery or mailing thereof, as the case
may be, if delivered personally or sent by registered or certified mail, return
receipt requested, postage prepaid:
(a) If to Xxxxxx, to:
Xxxxxx Capital, Inc.
000 Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
If to Aegis, to:
Aegis Capital Corporation
00 Xxxx Xxxxxxx Xxxxxxx
Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
Attn.: Xx. Xxxxxx Xxxx, Chairman
(b) With a copy of all notices to either Xxxxxx or Aegis to:
Singer Xxxxxxxx LLP
00 Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Attention: Xxxxxxx Xxxxxxxxx, Esq.
or to such other addresses as any party shall have specified by notice in
writing to the others.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered as of the date first above written.
XXXXXX CAPITAL, INC.
By: _______________________________
AEGIS CAPITAL CORPORATION
By:_______________________________
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