SNOWDANCE, INC.
800,000 Shares
Common Stock, $.__ par value
"QUALIFIED INDEPENDENT UNDERWRITER" AGREEMENT
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New York, New York
_____ __, 1997
The undersigned, Snowdance, Inc. (the "Company"), a Delaware corporation,
hereby agrees with _____________________ ("___________") as follows:
1. Introduction. The Company proposes to issue and sell to the
public, 800,000 shares of common stock, $.__ par value, of the Company (the
"Common Stock") (the "Offering"). Pursuant to Rule 2720 of the National
Association of Securities Dealers, Inc. (the "NASD") Conduct Rules ("Rule 2720")
the Company, as an affiliate of NASD members, may participate in the Offering
only if the price at which the Shares is to be offered to the public is no
higher than the price recommended by a "Qualified Independent Underwriter" (as
such phrase is defined by Rule 2720) who participates in the preparation of the
registration statement and prospectus relating to the Offering and exercises
customary standards of due diligence with respect thereto.
As hereinafter used, the term "Registration Statement" means
the registration statement on Form SB-2 (No. 333-____) (including the related
preliminary prospectus, financial statements, exhibits and all other documents
to be filed as a part thereof or incorporated therein) for the registration of
the offer and sale of the Shares under the Securities Act of 1933, as amended,
and the rules and regulations thereunder (collectively, the "Act"), filed with
he Securities and Exchange Commission (the "Commission"), and any amendments
thereto, and the term "Prospectus" means the prospectus including any
preliminary or final prospectus (including the form of final prospectus as filed
with the Commission) pursuant to Rule 424(b) under the Act and any amendments or
supplements thereto, to be used in connection with the Offering.
2. Rule 2720 Requirement. _________________ hereby confirms
its agreement as set forth in Rule 2720, and agrees to act as the "Qualified
Independent Underwriter" for the Offering. _________________ represents that, as
appropriate, it satisfies or will satisfy at the times designated in Rule 2720
the other requirements set forth therein.
3. Consent. _________________ hereby consents to be named in
the Registration Statement and Prospectus as having
acted as the "Qualified Independent Underwriter." Except as permitted by the
immediately preceding sentence or to the extent required by law, all references
to _________________ in the Registration Statement or Prospectus or in any other
filing, report, document, release or other communication prepared, issued or
transmitted in connection with the Offering by the Company or any corporation
controlling, controlled by or under common control with the Company, or by any
director, officer, employee, representative or agent of any thereof, shall be
subject to _________________'s prior written consent with respect to form and
substance.
4. Fees and Expenses. In consideration for _________________
acting as Qualified Independent Underwriter for the Offering, the Company hereby
agrees to pay _________________ a fee of [________________ dollars] ($[______])
[and issue _____ warrants to purchase _____ shares of Common Stock on the first
closing of the sale of the Shares offered by the Prospectus. Such warrants shall
have a five-year duration and an exercise price equal to 120% of the initial
public offering price per share.] If, for whatever reason, it is determined that
the Offering shall not proceed, _________________ shall not be entitled to
receive the above-mentioned fee [and warrants] but shall be paid in full for its
expenses and any amount payable to _________________ under Section 7 hereof
promptly following any such determination.
5. Material Facts. The Company represents and warrants to
_________________ that at the time the Registration Statement or any amendment
or supplement thereto becomes effective, the Registration Statement and, at the
time the Prospectus is filed with the Commission (including any preliminary
prospectus and the form of prospectus filed with the Commission pursuant to Rule
424(b)) and at all times subsequent thereto, to and including the date on which
payment for and delivery of the Shares (such date being referred to herein as
the "Closing Date"), the Prospectus (as amended or supplemented if it shall have
been so amended or supplemented) will contain all material statements which are
required to be stated therein in accordance with the Act and will conform to all
other requirements of the federal securities laws, and will not, on such dates,
include any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. The Company further represents and warrants that any further filing,
report, document, release or communication which in any way refers to
_________________ or to the services to be performed by it pursuant to this
Agreement will not contain any untrue or misleading statement of a material fact
or omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading.
6. Availability of Information. The Company hereby agrees to
provide _________________, at the Company's expense,
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all information and documentation with respect to the Company's business,
financial condition and other matters as _________________ may deem relevant,
including, without limitation, copies of all correspondence with the Commission,
certificates of its officers, opinions of its counsel and comfort letters from
its auditors. The above mentioned certificates, opinions of counsel and comfort
letters shall be provided to _________________ as it may request on the
effective date of the Registration Statement and on the closing date of the
Offering. The Company will make reasonably available to _________________, its
auditors, counsel, and officers and directors to discuss with _________________
any aspect of the Company or its business which _________________ may deem
relevant. In addition, the Company, at _________________'s request, will cause
to be delivered to _________________, copies of any certificates, opinions,
letters and reports and shall cause the person issuing such certificates,
opinions, letters or reports to authorize _________________ to rely thereon to
the same extent as if addressed directly to _________________. The Company
represents and warrants to _________________ that all such information and
documentation provided pursuant to this paragraph 6 will not contain any untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein not misleading. In addition, the Company will promptly
advise _________________ of all telephone conversations with the Commission
which relate to or may affect the Offering.
7. Indemnification.
(a) Subject to the conditions set forth below, the Company
hereby agrees that it will indemnify and hold _________________ and each
officer, partner, employee or representative of _________________ and each
person controlling, controlled by or under common control with _________________
within the meaning of Section 15 of the Act or Section 20 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), or the rules and
regulations thereunder (individually, an "Indemnified Person") harmless from and
against any and all loss, claim, damage, liability, cost or expense whatsoever
(including, but not limited to, any and all legal fees and other expenses and
disbursements incurred in connection with investigating, preparing to defend or
defending any action, suit or proceeding, including any inquiry or
investigation, commenced or threatened, or any claim whatsoever or in appearing
or preparing for appearance as a witness in any action, suit or proceeding
including any inquiry, investigation or pretrial proceeding such as a
deposition) to which such Indemnified Person may become subject under the Act,
the Exchange Act, or other federal or state statutory law or regulation at
common law or otherwise, arising out of, based upon, or in any way related or
attributed to (i) this Agreement, (ii) any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or
Prospectus or any other filing report, document, release or communication,
whether oral or written referred to in
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paragraph 5 hereof or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, (iii) any application or other document executed by the
Company or based upon written information furnished by the Company filed in any
jurisdiction in order to qualify the Shares under the securities or Blue Sky
laws thereof, or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, (iv) the breach of any representation or warranty made by the
Company in this Agreement, or (v) the performance by _________________ as the
"Qualified Independent Underwriter" pursuant to this Agreement unless as a
direct result of _________________'s gross negligence, bad faith or willful
misfeasance. The Company further agrees that upon demand by an Indemnified
Person at any time or from time to time, they will promptly reimburse such
Indemnified Person for, any loss, claim, damage, liability, cost or expense
as to which the Company has indemnified such person pursuant hereto.
Notwithstanding the foregoing provisions of this paragraph 7, any such payment
or reimbursement by the Company of fees, expenses or disbursements incurred by
an Indemnified Person in any proceeding in which a final judgment by a court of
competent jurisdiction (after all appeals or the expiration of time to appeal)
is entered against such Indemnified Person as a direct result of such person's
gross negligence, bad faith or willful misfeasance will be promptly repaid to
the Company.
(b) Promptly after receipt by an Indemnified Person under
paragraph (a) above of notice of the commencement of any action, such
Indemnified Person will, if a claim in respect thereof is to be made against the
Company under paragraph (a), notify the Company in writing of the commencement
thereof; but the omission to so notify the Company will not relieve the Company
from any liability which either may have to any Indemnified Person otherwise
than under this paragraph 7. In case any such action is brought against any
Indemnified Person, and such Indemnified Person notifies the Company of the
commencement thereof, the Company will be entitled to participate therein and,
to the extent that they may elect by written notice delivered to the Indemnified
Person promptly after receiving the aforesaid notice from such Indemnified
Person, to assume the defense thereof with counsel reasonably satisfactory to
such Indemnified Person: provided, however, that if the defendants in any such
action include both the Indemnified Person and the Company or any corporation
controlling, controlled by or under common control with the Company, or any
director, officer, employee, representative or agent of any thereof, and the
Indemnified Person shall have reasonably concluded that there may be legal
defenses available to it which are different from or additional to those
available to such other defendant, the Indemnified Person shall have the right
to select separate counsel to represent it. Upon receipt by the Indemnified
Person of notice from the Company setting forth the Company's irrevocable
election
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to assume the defense of such action and approval by the Indemnified Person of
such counsel, the Company will not be liable to such Indemnified Person under
this paragraph 7 for any fees of counsel subsequently incurred by such
Indemnified Person in connection with the defense thereof (other than the
reasonable costs of investigation subsequently incurred by such Indemnified
Person) unless (x) the Indemnified Person shall have employed separate counsel
in accordance with the provision of the next preceding sentences, (y) the
Company, within a reasonable time after notice of commencement of the action,
shall not have employed counsel reasonably satisfactory to the Indemnified
Person to represent the Indemnified Person, or (z) the Company shall have
authorized in writing the employment of counsel for the Indemnified Person at
the expense of the Company, and except that, if clause (x) or (z) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (x) or (z).
(c) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in paragraph (a) of this
paragraph 7 is due in accordance with its terms but is for any reason held by a
court to be unavailable from the Company to _________________ on grounds of
policy or otherwise, the Company and _________________ shall contribute to the
aggregate losses, claims, damages and liabilities (including legal or other
expenses reasonably incurred in connection with investigation or defending of
same) to which the Company and _________________ may be subject in such
proportion so that _________________ is responsible for that portion represented
by the percentage that its fee under this Agreement bears to the aggregate
public offering price appearing on the cover page of the Prospectus and the
Company is responsible for the balance, except as the Company may otherwise
agree to reallocate a portion of such liability with respect to such balance
with any other person; provided, however, that (y) in no case shall
_________________ be responsible for any amount in excess of the fee set forth
in paragraph 4 above and (z) no person guilty of fraudulent misrepresentation
within the meaning of Section 11(f) of the Act shall be entitled to contribution
from any person who was not guilty of such fraudulent misrepresentation. For
purposes of this paragraph (c), any person controlling, controlled by or under
common control with _________________, or any partner, director, officer,
employee, representative or any agent of any thereof, shall have the same rights
to contribution as _________________ and each person who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
each officer of the Company who shall have signed the Registration Statement and
each director of the Company shall have the same rights to contribution as the
Company, subject in each case to clause (y) of this paragraph (c). Any party
entitled to contribution will, promptly after receipt of notice of commencement
of any action, suit or proceeding against such party in respect of which a claim
for contribution may be made against the other party under this
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paragraph (c), notify such party from whom contribution may be sought, but the
omission to so notify such party shall not relieve the party from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this paragraph (c). The indemnity and
contribution agreements contained in this paragraph 7 shall remain operative and
in full force and effect regardless of any investigation made by or on behalf of
any Indemnified Person or any termination of this Agreement.
8. Authorization by Company. The Company represents and
warrants to _________________ that this Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid and binding
obligation of the Company.
9. Notice. Whenever notice is required to be given pursuant to
this Agreement, such notice shall be in writing and shall be mailed by first
class mail, postage prepaid, addresses (a) if to _________________, at
___________________, Attention: _____________ and (b) if to the Company, at
Xxxxx 00, Xxxxxxxxxxx, Xxxxxxx 00000, Attention: Xxxxxx X. Xxxxxxxxxxx.
10. Governing Law. This Agreement shall be construed (both as
to validity and performance) and enforced in accordance with and governed by the
laws of the State of New York applicable to agreements made and to be performed
wholly within such jurisdiction.
11. Parties. This Agreement shall inure solely to the benefit
of and shall be binding upon, _________________ and the Company and the
controlling persons, directors and officers referred to in paragraph 7 hereof,
and their respective successors, legal representative and assigns, and no other
person shall have or be construed to have any legal or equitable right, remedy
or claim under or in respect of or by virtue of this Agreement or any provision
herein contained.
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If the foregoing correctly sets forth the understanding between
_________________ and the Company, please so indicate in the space provided
below for that purpose whereupon this letter shall constitute a binding
agreement between us.
SNOWDANCE, INC. [QUALIFIED INDEPENDENT
UNDERWRITER]
By:______________________________ By:______________________________
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