Exhibit 1.2
FIRST AMENDMENT TO UNDERWRITING AGREEMENT
THIS FIRST AMENDMENT TO UNDERWRITING AGREEMENT (the "Amendment") dated as
of May 4, 1999, is entered into by xxxxxx-xxxxxxxxxxxx.xxx, inc., a Delaware
corporation (the "Company") and ROCKCREST SECURITIES L.L.C., a Texas limited
liability company (the "Underwriter").
R E C I T A L S:
1. The Company and the Underwriter have entered into an Underwriting
Agreement dated April 30, 1999 (the "Underwriting Agreement").
2. The Company and the Underwriter now desire to amend the Underwriting
Agreement and confirm the continued legality, validity and binding effect of the
Underwriting Agreement, as amended by this Amendment.
NOW, THEREFORE, in consideration of the premises herein contained and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I.
Amendments
The Underwriting Agreement is amended as follows:
(a) Introduction. Effective as of the date hereof, the
Introduction of the Underwriting Agreement is amended to read in its
entirety as follows:
"xxxxxx-xxxxxxxxxxxx.xxx, inc., a Delaware corporation (the
"Company"), has an authorized capitalization of 30,000,000 shares of
common stock, par value $0.001 per share (the "Common Stock") and
5,000,000 shares of preferred stock, par value $0.01 per share (the
"Preferred Stock"), of which 6,000,000 shares of Common Stock and no
shares of Preferred Stock are currently issued and outstanding. This
Agreement contemplates that Rockcrest Securities L.L.C. (sometimes
referred to herein as the "Underwriter"), pursuant to the terms of
this Agreement, will us its best efforts to sell, for the account of
the Company, a minimum of 1,000,000, and a maximum of 1,800,000,
shares of Common Stock at a price of $5.00 per share. The term
"Shares", as used herein, includes as many of the shares of Common
Stock as are issued and sold pursuant to the terms hereof, unless the
context indicates otherwise.
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The Company hereby confirms as follows its agreement with you in
connection with the proposed offer and sale of the Shares:"
(b) Section 2(b)(ii). Effective as of the date hereof, Section
2(b)(ii) of the Underwriting Agreement is amended to read in its
entirety as follows:
"such funds are returned directly to the persons who subscribe
for the Shares, with interest thereon; all in accordance with the
terms of an escrow agreement to be entered into prior to the Effective
Date."
(c) Section 2(c). Effective as of the date hereof, Section 2(c)
of the Underwriting Agreement is amended to read in its entirety as
follows:
"On or before the fifth business day following the Company's and
the Underwriter's receipt of notification from the escrow agent that
it has received cash or cleared funds for 1,000,000 Shares during the
Offering Period, the initial closing on the sale of such Shares shall
occur at a time and place agreed upon by the Company and the
Underwriter, provided that the other conditions to Closing set forth
in Section 7 hereof have been satisfied. The date of such closing is
referred to herein as the "Initial Closing Date" and such closing is
referred to as the "Initial Closing." At the Initial Closing, the
Company will deliver to the Underwriter the certificates for the
Shares (in such denominations and in such names as the Underwriter
shall request upon at least 48 hours prior written notice) against
payment to the Company by the escrow agent, on behalf of the
purchasers of such Shares (by wire transfer or other immediately
available funds acceptable to the Company), of the public offering
price of such Shares, less (i) the Underwriter's selling commission
equal to ten percent (10%) of the public offering price of such Shares
and (ii) the difference between the Expense Allowance (as hereinafter
defined) minus the Advance (as hereinafter defined) (such difference
is referred to hereinafter as the "Net Expense Allowance"). Such
commission and Net Expense Allowance shall be paid to the Underwriter
by the escrow agent at the Initial Closing.
(d) Section 2(d). Effective as of the date hereof, Section 2(d)
of the Underwriting Agreement is amended to read in its entirety as
follows:
"Following the Initial Closing, the Company and the Underwriter
shall mutually agree upon the time and place for additional closings
on Shares sold during the balance of the Offering Period and shall
instruct the escrow agent, in writing signed by both the Company and
the Underwriter, to make payment for any Shares as to which a closing
shall occur to the Company, less the 10% selling commission payable to
the Underwriter for such Shares and the Net Expense
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First Amendment to Underwriting Agreement - Page 2
Allowance against delivery to the Underwriter by the Company of
certificates for the Shares sold at such closing. Such commission and Net
Expense Allowance shall be paid to the Underwriter by the escrow agent at
such closing."
(e) Section 5(b). Effective as of the date hereof, Section 5(b)
of the Underwriting Agreement is amended to read in its entirety as
follows:
"The Company shall pay to the Underwriter a nonaccountable
expense allowance equal to one percent (1%) of the total proceeds of
the offering (the "Expense Allowance") of which $25,000 in cash (the
"Advance") has been paid prior to the execution of this Agreement;
provided, however, that in the event the sale of the Shares is not
consummated or this Agreement is terminated for any reason, the
Company's liability to the Underwriter for the Expense Allowance shall
not exceed such Advance. The Underwriter agrees that the Advance
shall not be used to cover Underwriter's general overhead, salaries,
supplies or similar expenses of Underwriter incurred in the normal
conduct of its business. Notwithstanding the foregoing, upon
completion of the offering contemplated hereby, whether or not Shares
are sold, or prior termination of this Agreement for any reason, the
Underwriter shall account to the Company for its expenditures of the
Advance and refund to the Company any portion of such Advance not
actually expended by Underwriter in connection with the transactions
contemplated hereby."
ARTICLE II.
Ratifications
The terms and provisions of the Underwriting Agreement, as modified by this
Amendment, are hereby ratified and confirmed and shall continue in full force
and effect. The parties hereto acknowledge and agree that the Underwriting
Agreement, as amended hereby, is and shall remain in full force and effect and
is and shall continue to be the legal, valid and binding obligation of each of
them, as applicable, enforceable against each of them in accordance with their
respective terms.
ARTICLE III.
Miscellaneous
Section 3.1. References to Underwriting Agreement. The Underwriting
Agreement and any and all other agreements, documents or instruments now or
hereafter executed and delivered pursuant to the terms hereof or pursuant to the
terms of the Underwriting Agreement, as amended hereby, is hereby amended so
that any reference therein to the Underwriting Agreement shall mean a reference
to the Underwriting Agreement, as amended hereby.
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Section 3.2. Further Assurances. Each of the parties agrees that at any
time and from time to time, upon the written request of the other party, it will
execute and deliver such further documents and do such further acts and things
as the other party may reasonably request in order to fully effect the purposes
of this Amendment.
Section 3.3. Severability. Any provision of this Amendment held by a
court of competent jurisdiction to be invalid or unenforceable shall not impair
or invalidate the remainder of this Amendment and the effect thereof shall be
confined to the provision so held to be invalid or unenforceable.
Section 3.4. Counterparts. This Amendment may be executed in one or more
counterparts, each of which when so executed shall be deemed to be an original,
but all of which when taken together shall constitute one and the same
instrument.
SECTION 3.5. ENTIRE AGREEMENT. THE UNDERWRITING AGREEMENT, AS AMENDED
HEREBY, REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL AGREEMENTS
OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN THE PARTIES.
Section 3.6. Headings. The headings, captions, and arrangements used in
this Amendment are for convenience only and shall not affect the interpretation
of this Amendment.
EXECUTED as of the date first written above.
xxxxxx-xxxxxxxxxxxx.xxx, inc.
By:/S/ Xxxxxx X. Xxxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxxx
Title: Chief Executive Officer
ROCKCREST SECURITIES L.L.C.
By:/S/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: President
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