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MIKE'S ORIGINAL, INC.
700,000 Units, Each Consisting of One (1) Share of Common Stock and
Two (2) Class A Redeemable Common Stock Purchase Warrants
SELLING AGREEMENT
, 1997
Dear Sirs:
The undersigned, IAR Securities Corp., as representative of the
underwriters (the "Representative"), has agreed, subject to the terms and
conditions of the Underwriting Agreement dated __________, 1997 (the
"Underwriting Agreement"), to purchase from Mike's Original, Inc., a Delaware
corporation (the "Company"), an aggregate of 700,000 units (the "Units")
consisting of a total of 700,000 shares of Common Stock, par value $.001 per
share, of the Company (the "Common Stock") and 1,400,000 Class A Redeemable
Common Stock Purchase Warrants (the "Warrants") to purchase one share of Common
Stock, at the purchase price set forth on the cover of the Prospectus (as
hereinafter defined). The 700,000 Shares of Common Stock and 1,400,000 Warrants
are hereinafter referred to as the "Firm Securities." The Firm Securities,
Common Stock and Warrants are more particularly described in the enclosed
prospectus (the "Prospectus"), additional copies of which will be supplied in
reasonable quantities upon request.
We are offering a part of the Securities for sale to selected dealers
(the "Selected Dealers"), among which we are pleased to include you, at the
public offering price or at such price less a concession in the amount set forth
in the Prospectus under "Underwriting", as provided herein. This offering is
made subject to delivery of the Securities and its acceptance by
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us, to the approval of all legal matters by counsel, and to the terms and
conditions herein set forth and may be made on the basis of the reservation of
Securities or an allotment against subscription.
We have advised you by telegram or telex of the method and terms of the
offering. Acceptances should be sent to IAR Securities Corp., 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxx Xxxxxxxxxx, President. We reserve the
right to reject any acceptance in whole or in part.
The Securities purchased by you hereunder are to be offered by you to
the public at the public offering price, except as herein otherwise provided.
We, as Representative, may buy Securities from, or sell Securities to,
any Selected Dealer, and any Selected Dealer may buy Securities from, or sell
Securities to, any other Selected Dealer at the public offering price or at such
price less all or any part of the concession, as provided herein. We, as
Representative, after the initial public offering may change the public offering
price, the concession, and the reallowance.
Securities purchased by you hereunder shall be paid for in full at the
public offering price or such price less the applicable concession, as we shall
advise, on such date as we shall determine, on one day's notice to you, by
certified or official bank check payable in New York Clearing House funds to the
order of IAR Securities Corp., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 against
delivery of the Securities. If you are called upon to pay the public offering
price for the Securities purchased by you, the applicable concession will be
paid to you, less any amounts charged to your account as provided herein, after
termination of this Agreement as it applies to the offering of the Securities.
Notwithstanding the preceding two sentences, payment for and delivery of
Securities purchased by you hereunder will be made at our option either by
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physical delivery of certificates representing the shares so purchased or
through the facilities of The Depository Trust Company if you are a member or,
if you are not a member, settlement may be made through a correspondent which is
a member pursuant to instructions you may send to us prior to such specified
date.
We have been advised by the Company that a registration statement for
the Securities, filed under the Securities Act of 1933, as amended (the
"Securities Act"), has become effective. You agree (which agreement shall also
be for the benefit of the Company) that in selling Securities purchased pursuant
hereto you will comply with the applicable requirements of the Securities Act
and of the Securities Exchange Act of 1934, as amended, (the "Exchange Act"). No
person is authorized by the Company or the Representative to give any
information or to make any representations not contained in the Prospectus, in
connection with the sale of Securities. You are not authorized to act as agent
for the Company or the Representative in offering Securities to the public or
otherwise. Nothing contained herein shall constitute the Selected Dealers
partners with the Representative or with one another.
Upon your application to us, we will inform you as to the advice we
have received from counsel concerning the jurisdictions under the respective
"blue sky" or securities laws of which it is believed that the Securities have
been qualified or registered or is exempt for offer and sale, but we have not
assumed and will not assume any responsibility or obligation as to the accuracy
of such information or as to the right of any Selected Dealers to offer or sell
Securities in any jurisdiction.
As Representative, we shall have full authority to take such action as
we may deem advisable in respect of all matters pertaining to the offering or
arising thereunder. We, acting as
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the Representative shall not be under any obligation to you except for
obligations expressly assumed by us in this Agreement.
We are authorized to purchase and sell the Securities and shares of
Common Stock or Warrants for long or short account and we are also authorized to
stabilize or maintain the market prices of the Common Stock and the Warrants.
You agree, from time to time until the termination of this Agreement,
to report to us the number of Securities purchased by you pursuant to the
provisions hereof which then remain unsold and, on our request, you will resell
to us any such Securities remaining unsold at the purchase price thereof if, in
our opinion, such Securities are needed to make delivery against sales made to
others.
If prior to the termination of this Agreement as it applies to the
offering of the Securities (or prior to such earlier date as we have determined)
we purchase or contract to purchase in the open market or otherwise any
Securities or shares of Common Stock or Warrants underlying the Securities which
were purchased by you from us or from any other underwriter or dealer for
reoffering (including any Securities or shares of Common Stock or Warrants which
may have been issued on transfer or in exchange for such Securities or shares of
Common Stock or Warrants), and which Securities or shares of Common Stock or
Warrants were therefore not effectively placed for investment by you, you
authorize us either to charge your account with an amount equal to the
concession from the public offering price for which you purchased such
Securities, which shall be credited against the cost of such Securities, or to
require you to repurchase such Securities at a price equal to the total cost of
such purchase, including any commissions and transfer taxes on redelivery.
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You agree that except with our consent and except as otherwise provided
herein, you will not, prior to termination of this Agreement or until we notify
you that you are released from this restriction, bid for, purchase, or sell,
directly or indirectly, any Securities or any shares of Common Stock or Warrants
(or, if requested by us by telex or otherwise, any other securities of the
Company) for your account or for the accounts of customers except as broker or
agent in the execution of unsolicited brokerage orders therefor.
As contemplated by Rule 15c2-8 under the Exchange Act, we agree to mail
a copy of the Prospectus to any person making a written request therefor during
the period referred to in Rule 15c2-8, such mailing to be made to the address
given in the request. You confirm that you 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 final
prospectuses and amendments or supplements thereto required to be delivered
under Rule 15c2-8. We have heretofore delivered to you such preliminary
prospectuses as have been requested by you, receipt of which is hereby
acknowledged, and will deliver such copies of the Prospectus as will be
requested by you.
Selected Dealers will be governed by the conditions herein set forth
until this Agreement is terminated. This Agreement will terminate at the close
of business on the 45th full day after the date hereof, but may be extended by
us for an additional period or periods not exceeding 45 full days in the
aggregate. Whether or not extended, we may, however, terminate this agreement or
any provision hereof at any time. Notwithstanding the termination of this
Agreement, you shall be and shall remain liable for, and will pay on demand,
your proportionate amount of any loss, liability, claim, or damage or related
expense which may be asserted against you alone, or against you together with
other dealers purchasing Securities upon the terms hereof, or against
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us, based upon the claim that the Selected Dealers, or any of them, constitute
an association, unincorporated business, partnership, or separate entity.
All communications from you shall be address to IAR Securities Corp.,
00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxx Xxxxxxxxxx, President. Any
notice from us to you shall be deemed to have been fully authorized by us and to
have been duly given if mailed, telegraphed, or telexed to you at the address to
which this letter is mailed. This Agreement shall be construed in accordance
with the laws of the State of New York, without giving effect to conflict of
laws. Time is of the essence in this Agreement.
If you agree to purchase Securities in accordance with the terms
hereof, kindly confirm such agreement by completing and signing the form
provided for that purpose on the enclosed duplicate hereof and returning it to
us promptly.
Very truly yours,
IAR SECURITIES CORP.
By: __________________________
Xxxxx Xxxxxxxxxx
President
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IAR Securities Corp.,
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We hereby confirm our agreement to purchase units (the "Units"), each
consisting of one share of Common Stock, par value $.001 per share, of Mike's
Original, Inc. (the "Company") (the "Common Stock") and two warrants (the
"Warrants") to purchase one share of Common Stock, allotted to us subject to the
terms and conditions of the foregoing Selling Agreement and your telegram or
telex to us referred to therein. We hereby acknowledge receipt of the definitive
Prospectus relating to the Common Stock and Warrants, and we confirm that in
purchasing Common Stock and Warrants we have relied upon no statements
whatsoever, written or oral, other than the statements in the Prospectus. We
represent that we are actually engaged in the investment banking or securities
business and that we are a member in good standing of the NASD which agrees to
comply with all applicable rules of the NASD or, if we are not such a member, we
are a foreign dealer or institution not eligible for membership in the NASD (a)
which agrees to make no offers or sales within the United States, its
territories, or its possessions or to persons who are citizens thereof or
residents therein, and, in making sales, to comply with the NASD's
interpretation with respect to free-Riding and Withholding and Rules 2730, 2740
and 2750 of the NASD Conduct Rules as if we were an NASD member and Rule 2420 as
it applies to a nonmember broker or dealer in a foreign country and (b) which in
connection with offers and sales of Common Stock and Warrants made by us outside
the United States (i) will either furnish to each person to whom any such offer
or sale is made a copy of the then current preliminary prospectus or the
Prospectus (as then amended or supplemented if the Company shall have furnished
amendments or supplements thereto), as the case may be, or inform such person
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that such preliminary prospectus or the Prospectus will be available upon
request and (ii) will furnish to each person to whom any such offer or sale is
made such prospectus, advertisement, or other offering document containing
information relating to the the Common Stock, the Warrants or the Company as may
be required under the law of the jurisdiction in which such offer or sale is
made. Any prospectus, advertisement, or other offering document furnished by us
to any person in accordance with clause (b)(ii) of the preceding sentence and
any such additional offering material as we may furnish to any person (c) shall
comply in all respects with the laws of the jurisdiction in which it is so
furnished, (d) shall be prepared and so furnished at our sole risk and expense,
and (e) shall not contain information relating to the the Common Stock, the
Warrants or the Company which is inconsistent in any respect with the
information contained in the then current preliminary prospectus or in the
Prospectus (as then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), as the case may be. It is understood
that no action has been taken to permit a public offering in any jurisdiction
other than the United States where action would be required for such purpose.
If for federal income tax purposes the Selected Dealers, among
themselves or with the Representative, should be deemed to constitute a
partnership, then we elect to be excluded from the application of Subchapter K,
Chapter 1, Subtitle A of the Internal Revenue Code of 1986, as amended, and we
agree not to take any position inconsistent with such election. We authorize
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you, in your discretion, to execute and file on our behalf such evidence of such
election as may be required by the Internal Revenue Service.
___________________________________
(Name of Selected Dealer)
___________________________________
(Authorized Signature)
Dated: , 1997
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