ZAP
SERIES B PREFERRED STOCK
4,800,000 Shares
SELLING GROUP AGREEMENT
October __, 2001
Dear Sirs:
Alexander, Wescott & Co., Inc. and Hyperion Partners Corp., the
underwriters (the "Underwriters") are the Underwriters named in the Prospectus,
dated October 2, 2001. The Underwriters agreed to sell as agent for ZAP (the
"Company"), subject to the terms and conditions set forth in the Underwriting
Agreement referred to in the Prospectus, an aggregate of up to 4,800,000 shares
of Series B Preferred Stock (the "Shares") of the Company. The Shares and the
terms upon which they are to be offered for sale by the Underwriters are more
particularly described in the Prospectus.
1.1. The Shares are to be offered to the public by the Underwriters at
a price of $1.00 per Share (herein called the "Public Offering Price") and in
accordance with the terms of the offering set forth in the Prospectus.
1.2. The Company, through the Underwriters as agents for the Company,
is offering, subject to the terms and conditions hereof, a portion of the Shares
for sale through certain dealers which are members of the National Association
of Securities Dealers, Inc. and which agree to comply with the provisions of
Section 24 of Article III of the Rules of Fair Practice of such Association and
to foreign dealers or institutions ineligible for membership in said Association
which agree (a) not to resell Shares (i) to purchasers located in, or to persons
who are nationals of, the United States of America or (ii) when there is a
public demand for the Shares to persons specified as those to whom members of
said Association participating in a distribution may not sell and (b) to comply,
as though such foreign dealer or institution were a member of such Association,
with Sections 8, 24, 25 (to the extent applicable to foreign nonmember brokers
or dealers) and Section 36 of such Rules (such dealers and institutions agreeing
to purchase Shares hereunder being hereinafter referred to as "Selected
Dealers") at the Public Offering Price less a selling concession of ___% ($.___)
per Share, payable as hereinafter provided. Selected Dealers may not reallow any
further discounts on sales to other broker/dealers.
1.3. If you desire to sell any of the Shares, your application should
reach us promptly by telephone or facsimile at the office of the undersigneds,
and we will use our best efforts to fill the same. We reserve the right to
reject all subscriptions in whole or in part, to
make allotments and to close the subscription books at any time without notice.
The Shares allotted will be confirmed, subject to the terms and conditions of
this Agreement.
1.4. The privilege of selling the Shares is extended to you by the
Underwriters only if they may lawfully sell the Shares to dealers in your state.
1.5. Any of the Shares sold you under the terms of this Agreement may
be immediately offered to the public in accordance with the terms of the
offering set forth herein and in the final Prospectus, subject to the laws of
the various states. Neither you nor any other person is or has been authorized
to give any information or to make any representations in connection with the
sale of Shares other than as contained in the Prospectus.
1.6. This Agreement will terminate when we shall have determined that
the public offering of the Shares has been completed and upon telegraphic notice
to you of such termination.
1.7. On becoming a Selected Dealer and in offering and selling the
Shares, you agree to comply with all applicable requirements of the Securities
Act of 1933, the Securities Exchange Act of 1934 and the NASD Rules of Fair
Practice.
1.8. Upon application, you will be informed as to the jurisdictions in
which we have been advised that the Shares have been qualified for sale under
the respective Shares or blue sky laws of such jurisdictions, but we assume no
obligation or responsibility as to the right of any Selected Dealer to sell the
Shares in any jurisdiction or as to any sale therein.
1.9. Additional copies of the Prospectus will be supplied to you in
reasonable quantities upon request.
1.10. It is expected that public advertisement of the Shares will be
made on termination of the Public Offering. Twenty-four hours after such
advertisement shall have appeared but not before, you will be free to advertise
at your own expense, over your own name, subject to any restrictions of local
laws, but your advertisement must conform in all respects to the requirements of
the Securities Act of 1933, and we will not be under any obligation or liability
in respect of your advertisement.
1.11. No Selected Dealer is authorized to act as our agent or to make
any representation as to the existence of an agency relationship otherwise to
act on our behalf in offering or selling the Shares to the public or otherwise.
1.12. We shall not be under any liability for or in respect of the
value, validity or form of the certificates for the Shares, or delivery of such
certificates, or the performance by anyone of any agreement on his part, or the
qualification of the Shares for sale under the laws of any jurisdiction, or for
or in respect of any matter connected with this Agreement, except for lack of
good faith and for obligations expressly assumed by us in this Agreement. The
foregoing provisions shall be deemed a waiver of any liability imposed under the
Securities Act of 1933.
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1.13. Payment for the Shares sold by you hereunder is to be made at the
Public Offering Price, for which shall be made in the regular way as described
in the Prospectus, or as we may advise, payable to the order of Xxxxxxxxx
Xxxxxxx & Co., Inc. and Hyperion Partners Corp., or as we shall specify for
deposit in a special account at American Stock Transfer & Trust Company, New
York, NY.
1.14. Notice to us should be addressed to us at the offices of the
undersigneds at the addresses indicated. Notices to you shall be deemed to have
been duly given if telefaxed or mailed to you at the address to which this
letter is addressed.
1.15. If you desire to sell any of the Shares, please confirm your
application by signing and returning to us your confirmation on the duplicate
copy of this letter enclosed herewith even though you have previously advised us
thereof by telephone or facsimile.
Dated: ________ __, 2001 ALEXANDER, WESCOTT & CO., INC.
By: ______________________________
Name: ____________________________
Title: _____________________________
OR
HYPERION PARTNERS CORP.
By: ______________________________
Name: Xxxx Xxxxxxx
Title: _____________________________
Accepted and agreed as to ________ shares of Series B Preferred Stock
this ____ day of _________ 2001.
By: _________________________
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