Exhibit 1.09
FIRST MIDWEST SECURITIES, INC.
550,000 Units
Orlando Predators Entertainment, Inc.
SELLING AGREEMENT
Dear Sirs:
1. We, as Underwriter, are offering for sale an aggregate of 550,000
Units (the "Firm Units") of Orlando Predators Entertainment, Inc. (the
"Company") which we have agreed to purchase from the Company. In addition,
we have been granted an option to purchase from the Company up to an
additional 82,500 Units (the "Option Units") to cover over-allotments in
connection with the sale of the Firm Units. The Firm Units and the Option
Units purchased are herein collectively called the "Units." The Units and
the terms under which they are to be offered for sale by the Underwriter are
more particularly described in the Prospectus.
2. The Units are to be offered to the public by the Underwriter at the
price per Unit set forth on the cover page of the Prospectus (the "Public
Offering Price"), in accordance with the terms of the offering thereof set
forth in the Prospectus.
3. The Underwriter is offering, subject to the terms and conditions
hereof, a portion of the Units for sale to certain dealers who are engaged in
the investment banking or securities business and who are either (i) members
in good standing of the National Association of Securities Dealers, Inc. (the
"NASD") or (ii) dealers with their principal places of business located
outside the United States, its territories and its possessions and not
registered as brokers or dealers under the Securities Exchange Act of 1934,
as amended (the "1934 Act") who have agreed not to make any sales within the
United States, its territories or its possessions or to persons who are
nationals thereof or residents therein (such dealers who shall agree to
purchase Units hereunder being herein called "Selected Dealers"), at the
Public Offering Price, less a selling concession (which may be changed) of
not in excess of $. per Unit payable as hereinafter provided, out of which
concession an amount not exceeding $. per Unit may be reallowable by
Selected Dealers to members of the NASD or foreign dealers qualified as
aforesaid. The Selected Dealers have agreed to comply with the provisions of
Section 24 of Article III of the Rules of Fair Practice of the NASD, and if
any such dealer is a foreign dealer and not a member of the NASD, such
Selected Dealer also has agreed to comply with the NASD's interpretation
with respect to free-riding and withholding, to comply, as though it were a
member of the NASD, with the provisions of Section 8 and 36 of Article III of
such Rules of Fair Practice, and to comply with Section 25 of Article III
thereof as that Section applies to non-member foreign dealers. The
Underwriter may be included among the Selected Dealers.
4. We shall have full authority to take such action as we may deem
advisable in respect of all matters pertaining to the public offering of the
Units.
5. If you desire to purchase any of the Units, your application should
reach us promptly by telephone, telegraph or facsimile at our office at 0000
X. Xxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxxxx
X. Xxxxx, Telephone No. (000) 000-0000 or (000) 000-0000, Fax No. (414)
000-0000. We reserve the right to reject subscriptions in whole or in part,
to make allotments and to close the subscription books at any time without
notice. The Units allotted to you will be confirmed subject to the terms and
conditions of this Agreement.
6. Any Units purchased by you under the terms of this Agreement may be
immediately reoffered to the public in accordance with the terms of offering
thereof set forth herein and in the Prospectus, subject to the securities or
blue sky laws of the various states or other jurisdictions.
You agree to pay us on demand an amount equal to the Selected Dealer
concession as to any Units purchased by you hereunder which, prior to the
termination of this Agreement, we may purchase or contract to purchase and,
in addition, we may charge you with any broker's commission and transfer tax
paid in connection with such purchase or contract to purchase. Certificates
for Units delivered on such repurchases need not be the identical
certificates originally purchased.
No expenses shall be charged to Selected Dealers. A single transfer tax,
if payable, upon the sale of the Units by the Underwriter to you will be paid
when such Units are delivered to you. However, you shall pay any transfer
tax on sales of Units by you and you shall pay your proportionate share of
any transfer tax (other than the single transfer tax described above) in the
event that any such tax shall from time to time be assessed against you and
other Selected Dealers as a group or otherwise.
Neither you nor any other person is or has been authorized to give any
information or to make any representation in connection with the sale of the
Units other than as contained in the Prospectus.
7. The first three paragraphs of Section 6 hereof will terminate when
we shall have determined that the public offering of the Units has been
completed and upon telegraphic notice to you of such termination, but, if not
theretofore terminated, they will terminate at the close of business on the
30th full business day after the date hereof; provided however, that we shall
have the right to extend such provisions for a further period or periods, not
exceeding an additional 30 full business days in the aggregate upon
telegraphic or facsimile notice to you.
8. For the purpose of stabilizing the market in the Units, we have
been authorized to make purchases and sales of the Units of the Company, in
the open market or otherwise, for long or short account, and, in arranging
for sales, to over-allot.
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9. On becoming a Selected Dealer, and in offering and selling the
Units, you agree to comply with all the applicable requirements of the
Securities Act of 1933, as amended (the "1933 Act"), and the 1934 Act. You
confirm that you are familiar with Rule 15c2-8 under the 1934 Act relating to
the distribution of preliminary and final prospectuses for securities of an
issuer (whether or not the issuer is subject to the reporting requirements of
Section 13 or 15(d) of the 0000 Xxx) and confirm that you have complied and
will comply therewith.
We hereby confirm that we will make available to you such number of
copies of the Prospectus (as amended or supplemented) as you may reasonably
request for the purposes contemplated by the 1933 Act or the 1934 Act, or the
rules and regulations thereunder.
10. Upon request, you will be informed as to the states and other
jurisdictions in which we have been advised that the Units are qualified for
sale under the respective securities or blue sky laws of such states and
other jurisdictions, but we assume no obligation or responsibility as to the
right of any Selected Dealer to sell the Units in any state or other
jurisdiction or as to the eligibility of the Units for sale therein.
11. No Selected Dealer is authorized to act as our agent or otherwise
to act on our behalf, in offering or selling the Units to the public or
otherwise or to furnish any information or make any representation except as
contained in the Prospectus.
12. Nothing will constitute the Selected Dealers an association or
other separate entity or partners with the Underwriter or with each other,
but you will be responsible or your share of any liability or expense based
on any claim to the contrary. We shall not be under any liability for or in
respect of value, validity or form of the Units or the delivery of the
certificates for the Units, or the performance by anyone of any agreement on
its part, or the qualification of the Units for sale under the laws of any
jurisdiction, or for or in respect of any other matter relating to this
Agreement, except for lack of good faith and for obligations expressly
assumed by us or by the Underwriter in this Agreement and no obligation on
our part shall be implied herefrom. The foregoing provisions shall not be
deemed a waiver of any liability imposed under the 1933 Act.
Payment for the Units sold to you hereunder is to be made at the Public
Offering Price less the above-mentioned selling concession at such time and
date as we may advise, at the office of First Midwest Securities, Inc., at
the address indicated above, by a certified or official bank check in
Clearing House funds, payable to the order of First Midwest Securities, Inc.,
against delivery of certificates for the Units. If such payment is not made
at such time, you agree to pay us interest on such funds at the prevailing
brokers' loan rate.
13. Notices should be addressed to us at our office address indicated
above. Notices to you shall be deemed to have been duly given if telegraphed,
mailed, or telefaxed to you at the address to which this letter is addressed.
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14. This Agreement shall be governed by and construed exclusively in
accordance with the laws of the State of Wisconsin without giving effect to
the choice of law or conflicts of law principles thereof.
15. If you desire to purchase any Units, please confirm your
application by signing and returning to us your confirmation on the duplicate
copy of this letter enclosed herewith, even though you may have previously
advised us thereof by telephone, telegraph or fax. Our signature hereon may
be by facsimile.
Very truly yours,
FIRST MIDWEST SECURITIES, INC.
By:
------------------------------------
Xxxxx Xxxxx, President
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First Midwest Securities, Inc.
0000 X. Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Gentlemen:
We hereby irrevocably subscribe for ________ Units of Orlando Predators
Entertainment, Inc. in accordance with the terms and conditions stated in the
foregoing letter. We hereby acknowledge receipt of the Prospectus referred
to in the first paragraph thereof relating to said Units and we confirm that
we have no right to return any Units to you. We further confirm that our
commitment hereunder will not result in any violation by us of Section 8(b)
or 15(c) of the Securities Exchange Act of 1934 or the rules and regulations
thereunder, including Rule 15c3-1, or any provision of any applicable rules
of any securities exchange to which we are subject or of any restriction
imposed upon us by such exchange. We further state that in purchasing said
Units we have relied upon said Prospectus and upon no other statement
whatsoever, whether written or oral. We confirm that we are a dealer
actually engaged in the investment banking or securities business and that we
are either (i) a member in good standing of the National Association of
Securities Dealers, Inc. (the "NASD") or (ii) a dealer with its principal
place of business located outside the United States, its territories and its
possessions and not registered as a broker or dealer under the Securities
Exchange Act of 1934, as amended, who hereby agrees not to make any sales
within the United States, its territories or its possessions or to persons
who are nationals there or of residents therein. We hereby agree to comply
with the provisions of Section 24 of Article III of the rules of Fair
Practice of the NASD, and if we are a foreign dealer and not a member of the
NASD, we also agree to comply with the NASD's interpretation with respect to
free-riding and withholding, to comply, as though we were a member of the
NASD, with provisions of Sections 8 and 36 of Article III of such Rules of
Fair Practice, and to comply with Section 25 of Article III thereof as that
Section applies to non-member foreign dealers.
Name of Firm_____________________________
Authorized Signature_____________________
Title____________________________________
Date_____________________________________
