NGTV a California corporation [5,997,174] Units 1 Consisting of One Share of Common Stock and One Redeemable Common Stock Purchase Warrant AGREEMENT AMONG UNDERWRITERS
EXHIBIT 1.3
NGTV
a California corporation
a California corporation
[5,997,174] Units 1
Consisting of
One Share of Common Stock and
One Redeemable Common Stock Purchase Warrant
Consisting of
One Share of Common Stock and
One Redeemable Common Stock Purchase Warrant
AGREEMENT AMONG UNDERWRITERS
, 2006
Capital Growth Financial, LLC
As Representative of the several
Underwriters named in Schedule I hereto
000 XX Xxxxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
As Representative of the several
Underwriters named in Schedule I hereto
000 XX Xxxxxx Xxxx
Xxxxx 000
Xxxx Xxxxx, XX 00000
Ladies and Gentlemen:
We understand that NGTV, a California corporation (“Company”), desires to enter into
agreements, substantially in the form of Exhibits A and B hereto (“Underwriting Agreements”). The
Underwriting Agreements provide for the sale by the Company and the Selling Security Holders named
therein to you and the other prospective Underwriters named in Schedule B to Exhibit A, severally
and not jointly, of an aggregate of [5,997,174] Units (“Firm Units”), each Firm Unit consisting of
one share of Common Stock and one Warrant (“Warrant”). Each Warrant entitles the holder to
purchase one-half of one share of Common Stock commencing on the Separation Date (as such term is
defined in the Underwriting Agreements) and expiring on the five year anniversary of the effective
date of the Registration Statement. The Warrants are exercisable for whole shares only so that two
Warrants must be exercised to purchase each share of Common Stock at an exercise price of [$6.00]
per full share. The Warrants are redeemable in whole and not in part, at the option of the
Company, at a price of $.25 per Warrant at any time after they become exercisable upon not less 30
days prior written notice, if the average closing price of the Common Stock has been at least
[$8.40] per share for 10 consecutive trading days ending on the fifth business day prior to the
date on which notice of redemption is given. The Shares and Warrants underlying the Firm Units are
not immediately detachable and will not trade separately until the Separation Date. The Company
will file a current report on Form 8-K and disseminate a press release to publicly disclose the
Separation Date within two business days’ of its receipt of notice of separation from the
Representative. The warrants included in the units may not be exercised until the Separation Date.
Pursuant to the Underwriting Agreements, the Company will grant to the Underwriters an option to purchase up to
an additional [899,576] Units (“Option Units”), each
| 1 | Plus an option to acquire an additional [899,576] Units pursuant to the Underwriters’ over-allotment option. |
Option Unit identical to the Firm Units for the purpose of covering over-allotments in connection
with the sale of the Firm Units. The Option Units and the securities comprising same are
hereinafter collectively called the “Option Securities”; and the Option Units and Firm Units are
hereinafter collectively referred to as the “Units.”
We understand that changes may be made in those who are to be Underwriters and in the
respective number of Units to be purchased by them, but that the number of Securities to be
purchased by us, as set forth in said Schedule B will not be changed without our consent, except as
provided herein or in the Underwriting Agreements. The parties on whose behalf you execute the
Underwriting Agreements are herein cal1ed the “Underwriters.”
We desire to confirm the agreement among you, the undersigned, and the other Underwriters with
respect to the purchase of the Units by the Underwriters, severally and not jointly, from the
Company. The aggregate number of Units which any Underwriter will be obligated to purchase from
the Company pursuant to the terms of the Underwriting Agreements is herein called the “Underwriting
Obligation” of that Underwriter.
1. Authority and Compensation of Representative. We hereby authorize you, as our
representative and on our behalf, (a) to enter into agreements with the Company and the Selling
Security Holders, in substantially the forms attached’ hereto as Exhibits A and B, 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 and the Selling Security
Holders, respectively, at the purchase price per Unit determined as set forth in said Exhibits, of
the number of Units set forth opposite our name in Schedule B to said Exhibit A, and our
proportionate share of the Option Units which you determine to be purchased; (b) to exercise all
the authority and discretion vested in the Underwriters and in you by the provisions of the
Underwriting Agreements; (c) to take all such action as you in your discretion may deem necessary
or advisable in order to carry out the provisions of the Underwriting Agreements and of this
Agreement, and the sale and distribution of the Units; and (d) to determine all matters relating to
the public advertisement of the Units.
As our share of the compensation for your services hereunder, we will pay to you, and we
authorize you to charge to our account on the Closing Dates referred to in the Underwriting
Agreement, $ per Unit in respect of’ the aggregate number of Units which we shall agree to
purchase pursuant to the Underwriting Agreements.
2. Public Offering of Units. The sale of Units to the public is to be made, as herein
provided, as soon after the Registration Statement relating to the Units becomes effective as in
your judgment is advisable. The purchase price to be paid by the Underwriters for the Units and
the initial public offering price have been determined by agreement between you, the Company and
the Selling Security Holders. The Units shall be first offered to the public at the initial public
offering price as so determined (“Initial Public Offering Price”). You will advise us by facsimile
or telephone when the Units shall be released for offering and when the Registration Statement
relating to the Units shall become effective. We agree not to sell any of the Units until you have
released them for that purpose. We authorize you, after the initial public offering, to change the
public offering price, the concession, and the re-allowance if, in your sole discretion, such
action becomes desirable by reason of changes in general market conditions or otherwise. As used
herein, the terms “Registration Statement,” “Preliminary Prospectus,” and “Prospectus” shall have
the meanings ascribed thereto in the Underwriting Agreements. The public offering price at the
time in effect is herein called the “Offering Price.” After notice from you that the Units are
released for public sale, we will offer to the pub1ic in conformity with the provisions hereof and
with the terms of offering set forth in the Prospectus such of our Units as you
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advise us are not reserved. We agree not to offer or sell any of the Units to persons over whose
accounts we exercise investment discretion without their specific advance consent.
3. Offering to Dealers and Retail Sales. We authorize you to reserve for offering and Sale,
and on our behalf to sell, to retail purchasers (such sales being herein called “Retail Sales”) and
to dealers selected by you (such dealers, among whom any Underwriter may be included, being herein
called “Selected Dealers”) all or any part of our Units as you, in your sole discretion, shall
determine. Such sales, if any, shall be made (a) in the case of Retail Sales, at the Offering
Price, and (b) in the case of sales to Selected Dealers, at the Offering Price less such concession
as you, in your sole discretion, shall determine. Except for such sales as are designated by a
purchaser to be for the account of a particular Underwriter or Selected Dealer, any sales to
Selected Dealers made for our account shall be as nearly as practicable in the ratio that the Units
reserved for our account for offering to Selected Dealers bears to the aggregate of all Units of
all Underwriters so reserved.
You agree to notify us promptly on the date of the public offering as to the number, if any,
of the Units which we may retain for direct sale by us. Prior to the termination of the provisions
referred to in Section 13 hereof, you may reserve for offering and sale as hereinbefore provided
any Units theretofore retained by us remaining unsold, and we may, with your consent, retain any
Units heretofore reserved by you remaining unsold.
We agree that, from time to time prior to the termination of the provisions referred to in
Section 13 hereof, we shall furnish to you such information as you may request in order to
determine the number of Units purchased by us under the Underwriting Agreements which then remain
unsold, and we shall upon your request sell to you for the account of any Underwriter as many of
such unsold Units as you may designate at the Offering Price, less all or any part of the
concession to Selected Dealers as you, in your sole discretion, shall determine. The provisions of
Section 4 hereof shall not be applicable in respect of any such sale.
We authorize you to determine the form and manner of any communications or agreements with
Selected Dealers. In the event that there shall be any agreements with Selected Dealers, you are
authorized to act as manager thereunder and we agree, in such event, to be governed by the terms
and conditions of such agreements. The form of Selected Dealer Agreement attached hereto as
Exhibit C is satisfactory to us.
It is understood that any Selected Dealer to whom an offer may be made as hereinbefore
provided shall be actually engaged in the investment banking or securities business and shall be
either (a) a member in good standing of the National Association of Securities Dealers, Inc.
(“NASD”) or (b) a foreign dealer or institution which is not eligible for membership in the NASD
and which agrees not to make any sales within the United States of America, its territories or its
possessions or to persons who are citizens thereof or residents therein. Each Selected Dealer
shall agree to comply with the provisions of Rules 2740 and 2790 of the NASD Conduct Rules. Each
foreign Selected Dealer who is not a member of the NASD also shall agree to comply with the NASD’s
Free-Riding Interpretation, as may be in effect from time-to-time, and to comply, as though it were
a member of the NASD, with Rules 2730, 2740 and 2750 of the NASD’s Conduct Rules, and to comply
with Rule 2420 thereof as that Rule applies to a non-member broker or dealer in a foreign country.
The several Underwriters may allow, and the Selected Dealers, if any, may re-allow, such concession
or concessions as you may determine from time to time on sales of Units to any qualified dealer,
all subject to the NASD’s Conduct Rules.
You, and any of the several Underwriters with your prior consent, may make purchases or sales
of the Units from or to any of the other Underwriters, at the Offering Price, less all or any part
of the
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gross spread, and from or to any of the Selected Dealers at the Offering Price, less all or any
part of the concession to Selected Dealers.
Upon your request, we will advise you of the identity of any dealer to whom we allow such a
discount and any Underwriter or Selected Dealer from whom we receive such a discount.
4. Repurchase in the Open Marker. Any Units sold by us (otherwise than through you) which
shall be contracted for or purchased in the open market by you on behalf of any Underwriter or
Underwriters shall be repurchased by us on demand at a price equal to the cost of such purchase
plus commissions and taxes on redelivery. Any Units delivered on such repurchase need not be the
identical certificates originally sold by us. In lieu of delivery of such Units to us, you may
sell such Units in any manner for our account and charge us with the amount of any loss or expense
or credit us with the amount of any profit, less any expense resulting from such sale, or charge
our account with an amount not in excess of the concession to Selected Dealers.
5. Delivery and Payment. Upon your request, we shall deliver to you payment for the Units to
be purchased by us under the Underwriting Agreements in an amount equal to the Initial Public
Offering Price for such Units, less the concession to Selected Dealers. Such payment shall be made
in such form and at such time and place as may be specified in such request, and we authorize you
to make payment for such Units against delivery thereof for our account hereunder. If we are a
member of, or clear through a member of, The Depository Trust Company (“DTC”), you may, in your
discretion, deliver our Units through the facilities of DTC.
You shall remit to us, as promptly as practicable, the amounts received by you from Selected
Dealers and retail purchasers as payment in respect of’ Units sold by you for our account pursuant
to Section 3 hereof for which payment has been received. Units purchased by us under the
Underwriting Agreements and not reserved or sold by you for our account pursuant to Section 3
hereof shall be delivered to us as promptly as practicable after receipt by you. Any Units
purchased by us and so reserved which remain unsold at any time prior to the settlement of accounts
hereunder may, in your discretion, and shall, upon your request, be delivered to us, but, until
termination of the Selected Dealers Agreements pursuant to the terms thereof and of other selling
arrangements, such delivery shall be for carrying purposes only. In case any Units reserved for
sale in Retail Sales or to Selected Dealers shall not be purchased and paid for in due course as
contemplated hereby, we agree (a) to accept delivery when tendered by you of any Units so reserved
for our account and not so purchased and paid for, and (b) in case we shall have received payment
from you in respect of any such Units, to reimburse you on demand for the full amount which you
shall have paid us in respect of’ such Units.
In the event of our failure to tender payment for Units as provided in the Underwriting
Agreements, you shall have the right under the provisions thereof to arrange for other persons, who
may include you and any other Underwriter, to purchase such Units which we had agreed to purchase,
but without re1ieving us from liability for our default.
6. Authority to Borrow. We authorize you to advance your funds for our account (charging
current interest rates) and to arrange loans for our account or the account of the Underwriters for
the purpose of carrying out this Agreement, and in connection therewith to execute and deliver any
notes or other instruments, and to handle or pledge as security therefor all or any part of our
Units purchased hereunder for our account. Any lender is hereby authorized to accept your
instructions in all matters relating to such loans. Any part of our Units so held by you may be
delivered to us for carrying purposes and, if so delivered, will be redelivered to you upon demand.
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7. Allocation of Expenses and Liability. We authorize you to charge our account with and we
agree to pay (a) all transfer taxes on sales made by you for our account, except as herein
otherwise provided; and (b) our proportionate share (based on our Underwriting Obligation) of all
expenses incurred by you in connection with the purchase, carrying, sale and distribution of’ the
Units and all other expenses arising under the terms of the Underwriting Agreements or this
Agreement. Your determination of all such expenses and your allocation thereof shall be final and
conclusive. You may at any time make partial distributions of credit balances or call for payment
of debit balances. Funds for our account at any time in your hands may be held in your general
funds without accountability for interest. As soon as practicable after the termination of this
Agreement, the net credit or debit balance in our account after proper charge and credit for all
interim payments and receipts, shall be paid to or by us, provided that you may establish such
reserve as you, in your sole discretion, shall deem advisable to cover possible additional expenses
chargeable to the several Underwriters. Notwithstanding any settlement, we will remain liable for
any taxes on transfers for our account and for our proportionate share (based on our Underwriting
Obligations) of all expenses and liabilities that may be incurred for the accounts of the
Underwriters.
8. Liability for Future Claims. Neither any statement by you of any credit or debit balance
in our account, nor any reservation from distribution to cover possible additional expenses
relating to the Units, shall constitute any representation by you as to the existence or
nonexistence of possible unforeseen expenses or liabilities of, or charges against, the several
Underwriters. Notwithstanding the distribution of any net credit balance to us or the termination
of this Agreement or both, we shall be and remain liable for, and will pay on demand, (a) our
proportionate share (based on our Underwriting Obligation) of all expenses and liabilities which
may be incurred by or for the accounts of the Underwriters if they are deemed to constitute an
association, unincorporated business, partnership or any separate entity, and (b) any transfer
taxes paid after such settlement on account of any sale or transfer for our account.
9. Stabilization and Over-Allotment. We authorize you (a) to make purchases and sales of
Units and other securities of the Company in the open market or otherwise, for long or short
account, and on such terms and at such prices as you, in your sole discretion, shall deem
advisable; (b) in arranging for sales of the Units, to over-allot; and (c) either before or after
the termination of this Agreement, to cover any short position or liquidate any long position
incurred pursuant to this Section 9; subject, however, to the applicable rules and regulations of
the Securities and Exchange Commission (“Commission”) under the Securities Exchange Act of 1934, as
amended (“1934 Act”). All such purchases and sales and over-allotments shall be made for the
accounts of the several Underwriters as nearly as practicable in proportion to their respective
Underwriting Obligations; provided, however, that our net position resulting from such purchases
and sales and over-allotment shall not exceed, for either long or short account, 15% of the
aggregate amount which we shall become obligated to pay in respect of the total number of Units
purchased for our account. We agree to take up at cost on demand any Units or other securities
purchased for our account pursuant to this Section 9, and to deliver on demand any such Units
over-allotted for our account pursuant to this Section 9.
If you effect any stabilizing purchase pursuant to this Section 9, you will promptly notify us
of the date and time when the first stabilizing purchase was effected, and the date and time when
stabilizing was terminated. You will retain such information as is required to be retained by you
“as manager” pursuant to Rule 17a-2 under the 1934 Act. We will furnish to you not later than
three business days following the date on which stabilizing was commenced such information as is
required by Rule 17a-2(d) and notify you of the date and time when stabilizing was terminated.
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10. Open Market Transactions. We agree that we will not make bids or offers, or make or
induce purchases or sales for our own account or the accounts of customers, in the open market or
otherwise, either before or after the purchase of the Units and for either long or short account of
any Units or any security of the same class and series, or any right to purchase any such security
except (a) as provided in this Agreement, the Underwriting Agreements, and the Selected Dealers
Agreements or otherwise approved by you; (b) in brokerage transactions not involving solicitation
of the customer’s order; and (c) in connection with option and option-related transactions that are
consistent with the “no-action” position set forth in Release No. 17609, as amended in Release No.
19565, of the Commission under the 1934 Act. We further agree that we will not lend, either before
or after the purchase of the Units, to any customer, Underwriter, Selected Dealer, or to any other
securities broker or dealer, any Units. Before the completion of our participation in the
distribution (as defined in Regulation M), we will otherwise comply with Regulation M.
11. Blue Sky. Before the initial offering by the Underwriters, you will inform us as to the
states and other jurisdictions under the respective securities or blue sky laws of which it is
believed that the Units have been qualified for sale or are exempt from such qualification, 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 offer or sell the Units in any state or other jurisdiction.
You agree to file or cause to be filed, on behalf of the Underwriters, a Further State Notice in
respect of the Units pursuant to Article 23-A of the General Business Law of the State of New York,
if necessary.
12. Default by Underwriters. Default by one or more Underwriters in respect of their
obligations under the Underwriting Agreement shall not release us from any of our obligations, or
in any way affect the liability of any defaulting Underwriter to the other Underwriters for damages
resulting from such default. In the event of such default by one or more Underwriters, you are
authorized to increase, pro rata with the other non-defaulting Underwriters, the amount of Units
which we shall be obligated to purchase from the Company; provided, however, that the aggregate
amount of all such increases for all non-defaulting Underwriters shall not exceed 10% of the Units
and, if the aggregate amount of the Units not taken up by such defaulting Underwriters exceeds such
10%, you are further authorized, but shall not be obligated, to arrange for the purchase by other
persons, who may include you and other non-defaulting Underwriters, of all or a portion of the
Units not taken up by such Underwriter. In the event any such increases or arrangements are made,
the respective amounts of the Units to be purchased by the non-defaulting Underwriters and by any
such other person or persons shall be taken as the basis for the Underwriter’s Obligations under
this Agreement, but this shall not in any way affect the liability of any defaulting Underwriter to
the other Underwriters for damages resulting from such default.
In the event of default by one or more Underwriters in respect of their obligations under this
Agreement to take up and pay for any Units purchased by you for their respective accounts pursuant
to Section 9 hereof, or to deliver any such Units sold or over-allotted by you for their respective
accounts pursuant to any provision of this Agreement, and to the extent that arrangements shall not
have been made by you for other persons to assume the obligations of such defaulting Underwriter or
Underwriters, each non-defaulting Underwriter shall assume its proportionate share of the aforesaid
ob1igations of each such defaulting Underwriter without relieving any such defaulting Underwriter
of its liability therefor.
13. Termination. Section 2, the second paragraph and the first sentence of the third
paragraph of Section 3, Section 4, the first sentence of Section 9 (other than clause (c) thereof)
and Section 10 hereof will terminate at the close of business on the forty-fifth calendar day after
the effective date of the Registration Statement, unless extended or sooner terminated as
hereinafter provided. You may extend such provisions, or any of them, for a period not to exceed
thirty additional calendar days by notice to us to such effect. You may terminate any of such
provisions at any time by notice to us, and you
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may terminate all such provisions at any time by notice to us to the effect that the offering
provisions of this Agreement are terminated.
14. General Position of the Representative. In taking action under this Agreement, you shall
act only as agent of the several Underwriters. Your authority 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 Units, 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 the value of the Units or the validity or form thereof, the Registration
Statement, the Prospectus, or agreements or other instruments executed by the Company or others; or
for or in respect of the delivery of the Units; or for the performance by the Company or others of
any agreement on its or their part; nor shall you as Representative or otherwise be liable under
any of the provisions hereof or for any matters connected herewith, except for want of good faith,
and except for any liability arising under the Securities Act of 1933, as amended (“1933 Act”); and
only obligations expressly assumed by you as 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 in Section 12 hereof and in section 6 of the Underwriting
Agreement. If the Underwriters shall be deemed to constitute a partnership for Federal income tax
purposes, it is the intent of each Underwriter to be excluded from the application of Subchapter K,
Chapter 1, Subtitle A, of the Internal Revenue Code of 1986, as amended. Each Underwriter elects
to be so excluded and agrees not to take any position inconsistent with such election. Each
Underwriter authorizes you, in your discretion, to execute and file on behalf of the Underwriters
such evidence of election as may be required by the Internal Revenue Service. The commitments and
liabilities of each of the several Underwriters are several in accordance with their respective
Underwriting Obligations, and are not joint.
15. Acknowledgment of Receipt of Registration Statement, Etc. We hereby confirm that we have
examined the Registration Statement relating to the Units as heretofore filed by the Company with
the Commission and each amendment thereto, if any, filed through the date hereof, including any
documents filed under the 1934 Act through the date hereof and incorporated by reference into the
Prospectus, that we are willing to be named as an Underwriter therein and to accept the
responsibilities of an Underwriter thereunder, and that we are willing to proceed as therein
contemplated. We confirm that we have authorized you to advise the Company on our behalf (a) as to
the statements to be included in any Preliminary Prospectus and in the Prospectus under the heading
“Underwriting” insofar as they relate to us; and (b) that there is no other information about us
required to be stated in the Registration Statement or Prospectus. We understand that the
aforementioned documents are subject to further change and that we will be supplied with copies of
any further amendments or supplements to the Registration Statement, of any document filed under
the 1934 Act after the effective date of the Registration Statement and before termination of the
offering of the Units by the Underwriters, if such document is deemed to be incorporated by
reference into the Prospectus, and of any amended or supplemented Prospectus promptly, if and when
received by you, but the making of such changes, amendments and supplements shall not release us or
affect our obligations hereunder or under the Underwriting Agreements.
16. (a) Indemnity. We agree to indemnify and hold harmless each other Underwriter and any
person who controls any such Underwriter within the meaning of Section 15 of the 1933 Act, to the
extent that, and upon the terms on which, we agree to indemnify and hold harmless the Company and
other specified persons as set forth in the Underwriting Agreements. Our indemnity agreement
contained in this Section 16 shall remain in full force and effect, regardless of any investigation
made by or on
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behalf of such other Underwriter or controlling person, and shall survive the delivery of and
payment for the Units and the termination of this Agreement and the similar agreements entered into
with the other Underwriters.
(b) Claims Against Underwriters. Each Underwriter (including you) will pay, upon request, as
contribution, its proportionate share, based upon its underwriting obligation, of any loss, claim,
damage, or liability, joint or several, paid or incurred by any Underwriter (including you) to any
person other than an Underwriter, arising out of or based upon any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement, the Prospectus, any
amendment or supplement thereto or any Preliminary Prospectus or any other selling or advertising
material approved by you for use by the Underwriters in connection with the sale of the Units, 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 (other than an untrue statement or alleged
untrue statement or omission or alleged omission made in conformity with written information
furnished to the Company through you by or on behalf of an Underwriter expressly for use therein)
or relating to any transaction contemplated by this Agreement; and will pay such proportionate
share of any legal or other expense reasonably incurred by you or with your consent in connection
with investigating or defending against any such loss, claim, damage, or liability, or any action
in respect thereof. In determining the amount of our obligation under this paragraph, appropriate
adjustment may be made by you to reflect any amounts received by any one or more Underwriters in
respect of such claim from the Company pursuant to the Underwriting Agreements or otherwise. There
shall be credited against any amount paid or payable by us pursuant to this paragraph any loss,
claim, damage, liability, or expense which is incurred by us as a result of any such claim asserted
against us, and if such loss, claim, damage, liability, or expense is incurred by us subsequent to
any payment by us pursuant to this paragraph, appropriate provision shall be made to effect such
credit, by refund or otherwise. If any such claim is asserted, you may take such action in
connection therewith as you deem necessary or desirable, including retention of counsel for the
Underwriters, and in your discretion separate counsel for any particular Underwriter or group of
Underwriters, and the fees and disbursements of any counsel so retained by you shall be included in
the amounts payable pursuant to this paragraph. In determining amounts payable pursuant to this
paragraph, any loss, claim, damage, liability or expense incurred by any person who controls any
Underwriter within the meaning of Section 15 of the 1933 Act which has been incurred by reason of
such control relationship shall be deemed to have been incurred by such Underwriter. Any
Underwriter may elect to retain, at its own expense, its own counsel. You may settle or consent to
the settlement of any such claim on advice of counsel retained by you. Whenever you receive notice
of the assertion for any claim to which the provisions of this paragraph would be applicable, you
will give prompt notice thereof to each Underwriter. If any Underwriter or Underwriters default in
its or their obligation to make any payments under this paragraph, each non-defaulting Underwriter
shall be obligated to pay its proportionate share of all defaulted payments, based upon the
proportion such non-defaulting Underwriter’s Underwriting Obligation bears to the Underwriting
Obligations of all non-defaulting Underwriters. Nothing herein shall relieve a defaulting
Underwriter from liability for its default.
17. Capital Requirements. We confirm that the incurrence by us of our obligations under this
Agreement and under the Underwriting Agreement will not place us in violation of the net capital
requirements of Rule 15c3-1 under the 1934 Act or of any applicable rules relating to capital
requirements of any securities exchange to which we are subject.
18. Undertaking to Mail Prospectus. We represent to you that, to the extent applicable, we
have taken all action on our part required to have been taken to satisfy the policy set forth in
Release No. 33-4968 of the Commission under the 1933 Act, including the distribution in the manner
and at or prior to the time set forth in such release, of copies of the Preliminary Prospectus
relating to the Units (or if
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you have so requested, copies of any revised Preliminary Prospectus) to all persons to whom we
expect to mail confirmation of sale.
As contemplated by Rule 15c2-8 under the 1934 Act, you agree to mail a copy of the Prospectus
mentioned in the Underwriting Agreements to any person making a written request therefor during the
period referred to in said rule, the mailing to be made to the address given in the request. We
confirm that we have delivered all Preliminary Prospectuses and revised Preliminary Prospectuses,
if any, required to be delivered under the provisions of Rule 15c2-8 and agree to deliver all
Prospectuses required to be delivered thereunder. We acknowledge that the copies of the
Preliminary Prospectus furnished to us have been distributed to dealers who have been notified of
the foregoing requirements pertaining to the delivery of Preliminary Prospectuses and Prospectuses.
You have heretofore delivered to us such number of copies of Preliminary Prospectuses as have been
reasonably requested by us, receipt of which is hereby acknowledged, and will deliver such number
of copies of Prospectuses as will be reasonably requested by us.
19. Miscellaneous. Any notice hereunder from you to us or from us to you shall be deemed to
have been duly given if sent by registered mail, telegram or facsimile transmission, to us at our
address provided to you in writing, or to you c/o Capital Growth Financial, LLC, 000 XX Xxxxxx
Xxxx, Xxxxx 000, Xxxx Xxxxx, XX 00000.
We understand that you are a member in good standing of the NASD. We hereby confirm that we
are actually engaged in the investment banking or securities business and are either (a) a member
in good standing of the NASD and will comply with Rules 2740 and 2790 of the NASD Conduct Rules (b)
a foreign dealer or institution which is not eligible for membership in the NASD and which agrees
(i) not to make any sales within the United States of America, its territories, or its possessions,
or to persons who are citizens thereof or residents therein (except that we may participate in
sales to Selected Dealers and others under Section 3 of this Agreement); (ii) that any and all
sales shall be in compliance with Rule 2790 of the NASD Conduct Rules; (iii) to comply, as though
it were a member of the NASD, with Rules 2730, 2740 and 2750 of the NASD’s Conduct Rules, and to
comply with Rule 2420 thereof as that Rule applies to a non-member broker or dealer in a foreign
country. In connection with sales and offers to sell Units made by us outside the United States,
its territories, and possessions (a) we will either furnish to each person to whom any such sale or
offer is made a copy of the then current Preliminary Prospectus or the Prospectus, as the case may
be, or inform such person that such Preliminary Prospectus or Prospectus will be available upon
request, and (b) we will furnish to each person to whom any such sale or offer is made such
prospectus, advertisement, or other offering document containing information relating to the Units
or the Company as may be required under the law of the jurisdiction in which such sale or offer is
made. Any prospectus, advertisement, or other offering document furnished by us to any person in
accordance with the preceding sentence and any such additional offering material as we may furnish
to any person shall (i) comply in all respects with the law of the jurisdiction in which it is so
furnished, (ii) be prepared and so furnished at our sole risk and expense and (iii) not contain
information relating to the Units or the Company which is inconsistent in any respect with the
information contained in the then current Preliminary Prospectus or in the Prospectus, as the case
may be. This instrument may be signed by or on behalf of the Underwriters in one or more
counterparts, each of which shall constitute an original and all of which together shall constitute
one and the same agreement among all the Underwriters, and shall become effective at such time as
all the Underwriters shall have signed or have had signed on their behalf such counterparts and you
shall have confirmed all such counterparts. You may confirm such counterparts by facsimile
signature.
This Agreement shall be governed by and construed in accordance with the laws of the State of
Florida without giving effect to the choice of law or conflicts of laws principles thereof.
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Please confirm that the foregoing correctly states the understanding between us by signing and
returning to us a counterpart.
| Very truly yours, |
||||
| As Attorney-in-Fact for each of the several Underwriters named in Schedule B to the Underwriting Agreements | ||||
| As Attorney-in-Fact for each of the several Underwriters named in Schedule B to the Underwriting Agreements | ||||
Confirmed as of the date first above written:
As Representative:
CAPITAL GROWTH FINANCIAL, LLC
By:
|
||||
| Xxxxxxx X. Xxxxxx | ||||
Title:
|
President | |||
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