EXHIBIT DRAFT
UNDERWRITING AGREEMENT
SEC FILE NO. 333-11509
ND Holdings, Inc.
3,000,000 shares
No Par Common Stock
Best Efforts, No Minimum
xx, 1997
Financial Advantage Brokerage Services, Inc.
00 Xxxxx Xxxx (PO BOX 1934)
Minot, ND 58702
Gentlemen:
ND Holdings, Inc., a North Dakota corporation (the "Company")
hereby confirms its agreement with Financial Advantage Brokerage
Services, Inc., a North Dakota corporation (the "Underwriter")
regarding the participation by the Underwriter in the Public
Offering (hereinafter defined), and agrees, as follows:
SECTION 1
Description of Securities
1.01. Public Offering. The Company represents, covenants,
warrants, and agrees that its authorized, issued and outstanding
capitalization, when the Public Offering of the Stock (hereinafter
defined) contemplated hereby is permitted to commence and at the
Closing Date (hereinafter defined), will be as set forth in the
Registration Statement and related Prospectus (as such terms are
hereinafter defined or described). The Company proposes to issue,
and engages Underwriter to offer and sell to the public pursuant to
the registration provision of the Securities Act of 1933, as
amended (the "Act"), shares of the duly authorized no par value
common stock of the Company on a "best efforts" basis for up to
2,546,419 shares for the account of the Company and also on a best
efforts basis for the accounts of certain unaffiliated shareholders
of the Company, up to 453,581 shares. A list of the selling
shareholders and the number of shares to be offered by each such
shareholder is attached hereto as Appendix I. There is no minimum
number of shares required to be sold prior to the Company and
Selling Shareholders receiving proceeds from the sale of the shares
offered. The first 907,162 shares sold will be allocated equally
between the Company's shares and the total selling shareholders
shares (pro-rata as among the individual selling shareholders).
All shares sold in excess of 907,162 will be the for the account of
the Company. The shares of Stock to be authorized, issued, offered
and sold pursuant to the Public Offering contemplated by this
Agreement shall be offered and sold at a price of {$3.50} per share
on the terms hereinafter set forth.
SECTION 2
Representations and Warranties of the Company
In order to induce the Underwriter to enter into this Agreement,
the Company hereby represents, warrants, and covenants to and
agrees with the Underwriter as follows:
XX, 1997
Page 2
2.01. Registration Statement and Prospectus. A Registration
Statement on Form S-1 with respect to the Stock, including the
related Prospectus, copies of which have heretofore been delivered
by the Company to the Underwriter, has been carefully prepared by
the Company in conformity with the requirements of the Act, and the
rules and regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder,
and said Registration Statement has been filed with the Commission
under the Act; one or more amendments to said Registration
Statement, copies of which have heretofore been delivered to the
Underwriter, has or have heretofore been filed; and the Company may
file on or prior to the effective date additional amendments to
said Registration Statement, including the final Prospectus. As
used in this Agreement, the term "Registration Statement" refers to
and means said Registration Statement and all amendments thereto,
including the Prospectus, all exhibits and financial statements,
when it becomes effective (the "Effective Date"); the term
"Prospectus" refers to and means the Prospectus included in the
Registration Statement on the Effective Date; and the term
"Preliminary Prospectus" refers to and means any prospectus
included in said Registration Statement before it becomes
effective.
2.02. Accuracy of Registration Statement and Prospectus. The
Commission has not issued any order preventing or suspending the
use of any Preliminary Prospectus with respect to the Stock, and
each Preliminary Prospectus has conformed in all material respects
with the requirements of the Act and the applicable Rules and
Regulations of the Commission thereunder and has not included any
untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein not misleading. On
the Effective Date and on the Closing Date, the Registration
Statement and Prospectus and any further amendments or supplements
thereto will contain all statements which are required to be stated
therein in accordance with the Act and the Rules and Regulations
for the purposes of the proposed public offering of the Stock, and
all statements of material fact contained in the Registration
Statements and Prospectus will be true and correct, and neither the
Registration Statement nor the Prospectus will include any untrue
statement of material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided, however, the Company does not
make any representations or warranties as to information contained
in or omitted from the Registration Statement or the Prospectus in
reliance upon information furnished in writing on behalf of the
Underwriter specifically for use therein.
2.03. Financial Statements. The financial statements of the
Company, together with related schedules and notes as set forth in
the Registration Statement and Prospectus, will present fairly the
financial position and the results of the operation of the Company
at the representative periods to which they apply; such financial
statements have been prepared in accordance with generally accepted
principles of accounting consistently applied throughout the
periods concerned except as otherwise stated therein.
2.04. Independent Public Accountants. Xxxxx Xxxxx &
Associates, P.C., Certified Public Accountants which has certified
or shall certify certain of the financial statements filed or to be
filed with the Commission as part of the Registration Statement and
Prospectus and, as an expert, has reviewed certain other
information of a financial or accounting nature contained in the
Registration Statement and the Prospectus, are independent
certified public accountants as required by law.
XX, 1997
Page 3
2.05. No Material Adverse Change. Except as may be reflected
in or contemplated by the Registration Statement or the Prospectus,
subsequent to the dates as of which information is given in the
Registration Statement and Prospectus, and prior to the Closing
Date, (i) there shall not be any material adverse change in the
condition, financial or otherwise, of the Company or in its
business taken as a whole; (ii) there shall not have been any
material transaction entered into by the Company other than
transactions in the ordinary course of business; (iii) the Company
shall not have incurred any material obligation, contingent or
otherwise, which are not disclosed in the Prospectus; (iv) there
shall not have been nor will there be any change in the capital
stock or long-term debt (except current payments) of the Company;
and (v) the Company has not and will not have paid or declared any
dividends or other distributions on its capital stock.
2.06. No Defaults. The Company is not in default in the
performance of any obligation, agreement, or condition contained in
any debenture, note or other evidence or indebtedness, or any
indenture or loan agreement of the Company, other than as set forth
in the Prospectus. The execution and delivery of this Agreement
and the consummation of the transactions herein contemplated, and
compliance with the terms of this Agreement, will not conflict with
or result in a breach of any of the terms, conditions or provisions
of, or constitute a default under, the articles of incorporation,
as amended, or bylaws of the Company, any note, indenture,
mortgage, deed of trust, or other agreement or instrument to which
the Company is a party or by which it or any of its property is
bound, or any existing law, order, rule, regulation, writ,
injunction, or decree of any government, governmental
instrumentality, agency or body, arbitration tribunal or court,
domestic or foreign, having jurisdiction over the Company or its
property. The consent, approval, authorization, or order of any
court or governmental instrumentality, agency, or body is not
required for the consummation of the transactions herein
contemplated except such as may be required under the Act or under
the blue sky or securities laws of any state or jurisdiction.
2.07. Incorporation and Standing. The Company is and at the
Closing Date will be duly incorporated and validly existing in good
standing as a corporation under the laws of its jurisdiction of
incorporation, with an authorized and outstanding capital stock as
set forth in the Registration Statement and the Prospectus, and
will full power and authority (corporate and other) to own its
property and conduct its business, present and proposed, as
described in the Registration Statement and Prospectus; the Company
has full power and authority to enter into this Agreement; the
Company owns, free and clear of any lien, charge, or encumbrance,
all of the property and rights to property as set forth in the
Registration Statement; and the Company is duly qualified and in
good standing as a foreign corporation in each jurisdiction in
which it owns or leases real property or transacts business
requiring such qualification.
2.08. Legality of Outstanding Stock. The outstanding common
stock of the Company has been duly and validly authorized and
issued, is fully paid and non-assessable, and will conform to all
statements with regard thereto contained in the Registration
Statement and Prospectus. Except as set forth in the Registration
Statement, there are no outstanding options, warrants, or other
rights to subscribe for, purchase, or receive shares of the
Company's common stock or any other security convertible into
common stock.
2.09. Legality of Stock. The Stock has been duly and validly
authorized and when issued and validly issued, fully paid and non-
assessable. The Stock, upon issuance, will not be subject to the
preemptive rights of any shareholders of the Company. A sufficient
number of shares of Stock have been reserved for issuance upon
exercise with regard thereto in the Registration Statement and
Prospectus.
2.10. Prior Sales. No securities of the Company have been
sold by the Company or by, or on behalf of, or for the benefit of,
any person or persons controlling, controlled by, or under common
control with the Company within three years prior to the date
hereof, except as set out in the Registration Statement.
XX, 1997
Page 4
2.11. Litigation. Except as set forth in the Registration
Statement and Prospectus, there is, and at the Closing Date there
will be, no action, writ, or proceeding before any court or
governmental agency, authority or body pending or to the knowledge
of the Company, threatened, which might result in judgments against
the Company not adequately covered by insurance or which
collectively might result in any material adverse change in the
condition (financial or otherwise), the business or the prospects
of the Company, or would materially affect the properties or assets
of the Company.
2.12. Common Stock. Upon delivery of and payment for the no
par Common Stock to be sold by the Company as set forth in Section
1.01 of this Agreement, the purchasers will receive good and
marketable title thereto, free and clear of all liens,
encumbrances, charges, and claims whatsoever; and the Company will
have on the Effective Date and at the time of delivery of such
Common Stock full legal right and power and all authorization and
approval required by law to sell, transfer, and deliver such Common
Stock in the manner provided hereunder.
2.13. Finder. The Company and the Underwriter represent to
each other that no person has acted as a finder in connection with
the transactions contemplated herein and each will indemnify the
other party with respect to any claim for finder's fees in
connection herewith.
2.14. Exhibits. There are no contracts or other documents
which are required to be filed as exhibits to the Registration
Statement by the Act or by the Rules and Regulations which have not
been so filed and each contract to which the Company is a party and
to which reference is made in the Prospectus has been duly and
validly executed, and is in full force and effect in all material
respects in accordance with its terms, and none of such contracts
has been assigned by the Company; and the Company knows of no
present situation or condition of fact which would prevent
compliance with the terms of such contracts, as amended to date.
Except for amendments or modifications of such contracts in the
ordinary course of business, the Company has no intention of
exercising any right which it may have to cancel any of its
obligations under any of such contracts, and has no knowledge that
any other party to any of such contracts has any intention not to
render full performance under such contracts.
2.15. Tax Returns. The Company has filed all federal and
state returns which are to be filed, and has paid all taxes shown
on such returns and on all assessments received by it to the extent
such taxes have become due. All taxes with respect to which the
Company is obligated have been paid or adequate accruals have been
set up to cover any such unpaid taxes.
2.16. Property. Except as otherwise set forth in or
contemplated by the Registration Statement and Prospectus, the
Company has good title, free and clear of all liens, encumbrances,
and defects, except liens for current taxes not due and payable, to
all property and assets which are described in the Registration
Statement and the Prospectus as being owned by the Company, subject
only to such exceptions as are not material and do not adversely
affect the present or prospective business of the Company.
2.17. Authority. The execution and delivery by the Company
of this Agreement has been duly authorized by all necessary
corporate action and this contract is the valid, binding, and
legally enforceable obligation of the Company.
XX, 1997
Page 5
SECTION 3
Issue, Sale and Delivery of the Stock
3.01.01. The Company hereby appoints the Underwriter as its
exclusive agent for a period of 90 days from the Effective Date,
which period may be extended for not more than an additional 90
days upon the mutual agreement of the Underwriter and the Company,
to sell the Stock of the Company on a "best efforts" basis for
3,000,000 shares of Stock to the public at an offering price of
{$3.50} per share. The Underwriter, on the basis of the
representations and warranties herein contained, and subject to the
terms and conditions herein set forth, accepts such appointment and
agrees to use its best efforts to find purchasers for the Stock.
"Best efforts" as used in this Agreement in connection with the
Underwriter shall mean that effort which would be employed by a
reasonably diligent broker-dealer in the position of the
Underwriter. The price at which the Underwriter shall sell the
Stock to the public, as agent for the Company, shall be {$3.50} per
share, and the Company shall pay the Underwriter a commission of
eight percent (8%) of the offering price for each share.
3.01.02 There is no agreement to provide underwriter shares or
warrants to the Underwriter.
3.01.03. Engraved certificates in such form that they can be
negotiated by the purchasers thereof (issued in such denominations
and in such names as the Underwriter may direct the transfer agent
to issue) for the Stock shall be made available by the Company to
the Underwriter for checking and packaging at the offices of the
transfer agent at least two full business days prior to the initial
Closing Date, it being understood that the directions from the
Underwriter to the transfer agent shall be given at least three
full business days prior to the initial Closing Date.
3.01.04. During the period of the offering contemplated
hereby, payment for Stock shall be in clearing house funds, and the
Underwriter and selected dealers shall request that all checks and
other orders in payment for the Stock be made payable to the order
of ND Holdings, Inc., Escrow Account, First Western Bank and Trust.
Such checks and orders shall be transmitted by the Underwriter and
selected dealers to the Escrow Account at First Western Bank and
Trust, Minot, North Dakota by noon of the next business day
following receipt.
3.01.05. The time and date of delivery and payment hereunder
are herein called the "Closing Date" and shall take place at the
office of the Company on such dates and after such times as will be
fixed by notice in writing to be given by the Underwriter to the
Company. The Closing Dates and places may be changed by the
agreement of the Underwriter and the Company.
3.01.06. The certificates so delivered for the Stock shall be
registered in the names of the purchasers thereof for the number of
shares purchased by each, as may be required by the Underwriter in
the notice.
3.02. The Company shall reimburse the Underwriter for its
expenses in an amount equal to two percent (2%) of the total
proceeds realized from the sale of the Stock in the offering, which
non-accountable sum shall include the fees of the Underwriter's
counsel, but shall not include the following; NASD filing fees;
printing, and any and all other expenses customarily paid by the
issuer in a public offering. There has been no deposit or retainer
paid to the Underwriter.
3.03. The parties hereto respectively covenant that as of the
Closing Date the representations and warranties herein contained
and the statements contained in all the certificates theretofore or
simultaneously delivered by any party to another, pursuant to this
Agreement, shall in all respects be true and correct.
3.04. The Underwriter covenants that, reasonably promptly
after the Closing Date, it will supply the Company with all
information required from the Underwriter for the completion of
Form SR and such additional information as the Company may
reasonably request to be supplied to the securities commissions of
such states in which the Stock has been qualified for sale.
XX, 1997
Page 6
SECTION 4
Offering of the Stock on Behalf of the Company
4.01. In offering the Stock for sale, the Underwriter shall
offer it solely as an agent for the Company, and such offer shall
be made upon the terms and subject to the conditions set forth in
the Registration Statement and Prospectus. The Underwriter shall
commence making such offer as an agent for the Company as soon
after the Effective Date as it may deem advisable; provided,
however, that if the Underwriter does not commence such offering
within three business days after the effective date, it shall so
advise the Company and the Commission.
4.02. The Underwriter may invite registered dealers selected
by it("Participating Dealers") to offer and sell the shares for the
account of the Company pursuant to a form of Selected Dealers
Agreement, pursuant to which the Underwriter may allow such
concession (out of its underwriting commission) as it may
determine, within the limits set forth in the Registration
Statement and Prospectus, and all such sales by Participating
Dealers shall be as agents for the accounts of their customers.
4.03. On each sale by the Underwriter of any of the Stock by
Participating Dealers, the Underwriter shall require the
Participating Dealer offering any Stock to agree to offer the
shares on the terms and conditions of the offering set forth in the
Registration Statement and Prospectus.
SECTION 5
Registration Statement and Prospectus
5.01. Immediately upon the effectiveness of this Offering, the
Company shall deliver to the Underwriter without charge two (2)
signed copies of the Registration Statement, including all
financial statements and exhibits filed therewith and any
amendments or supplements thereto, and shall deliver without charge
to the Underwriter nine (9) conformed copies of the Registration
Statement and any amendment or supplement thereto, including such
financial statements and exhibits, along with the required N.A.S.D.
filing fee check. The signed copies of the Registration Statement
so furnished to the Underwriter will include signed copies of any
and all consents and certificates of the independent public
accountant certifying to the financial statements included in the
Registration Statement and Prospectus and signed copies of any and
all consents and certificates of any other persons whose profession
gives authority to statements made by them and who are named in the
Registration Statement or Prospectus as having prepared, certified,
or reviewed any part thereof.
5.02. The Company will deliver to the Underwriter, without
charge, prior to the Effective Date as many copies of each
Preliminary Prospectus filed with the Commission bearing in red ink
the statement required by the Commission's Rule 433 (b) as may be
reasonably required by the Underwriter. The Company consents to
the use of such documents by the Underwriter and by dealers prior
to the Effective Date.
5.03. The Company will procure, at its expense, as many
printed copies of the Prospectus as the Underwriter may reasonably
require for the purposes contemplated by this Agreement and shall
deliver said printed copies of the Prospectus to the Underwriter
within two (2) business days after the Effective Date.
XX, 1997
Page 7
5.04. If during such period of time as in the opinion of the
Underwriter or its counsel a Prospectus relating to this financial
is required to be delivered under the Act, any event occurs or any
event known to the Company relating to or affecting the Company
shall occur as a result of which the Prospectus as then amended or
supplemented would include an untrue statement of a material fact,
or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made,
not misleading, or if its is necessary at any time after the
effective date of the Registration Statement to amend or supplement
the Prospectus to comply with the Act, the Company will forthwith
notify the Underwriter thereof and prepare and file with the
Commission such further amendment to the Registration Statement or
supplemented or amended Prospectus as may be required and furnish
and deliver to the Underwriter and to others whose names and
addresses are designated by the Underwriter, all at the cost of the
Company, a reasonable number of copies of the amended or
supplemented Prospectus which as so amended or supplemented will
not contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make the Prospectus
not misleading in the light of the circumstances when it is
delivered to a purchase or prospective purchaser, and which will
comply in all respects with the Act, and, in the event the
Underwriter is required to deliver a Prospectus 90 days or more
after the date of the public offering, will, upon request, prepare
promptly such Prospectus or Prospectus as may be necessary to
permit compliance with the requirements of Section 10 of the Act.
5.05. The Company authorizes the Underwriter and the
Participating Dealers, if any, in connection with the distribution
of the Stock and all dealers to whom any of the Stock may be sold
by the Underwriter or by any Participating Dealer, to use the
Prospectus as from time to time amended or supplemented, in
connection with the offering and sale of the Stock and in
accordance with the applicable provisions of the Act, the
applicable Rules and Regulations and applicable state blue sky or
securities laws.
SECTION 6
Covenants of the Company
The Company covenants and agrees with the Underwriter that:
6.01. After the date hereof, the Company will not at any time,
whether before or after the Effective Date, file any amendment or
supplement to the Registration Statement or Prospectus, which
amendment or supplement the Underwriter shall not previously have
been advised and furnished with a copy a reasonable time prior to
the proposed filing thereof, or which the Underwriter or counsel
for the Underwriter shall have reasonably objected to in writing on
the ground that it is not in compliance with the Act or the Rules
and Regulations.
6.02. The Company will use its best efforts to cause the
Registration Statement, and any post-effective amendment
subsequently filed, to become effective as promptly as reasonably
practicable and will promptly advise the Underwriter, and will
confirm such advice in writing, (i) when the Registration Statement
shall have become effective and when any amendment thereto shall
have become effective and when any amendment of or supplement to
the Prospectus shall be filed with the Commission, (ii) when the
Commission shall make a request or suggestion for any amendment to
the Registration Statement or the Prospectus or for additional
information and the nature and substance thereof, (iii) of the
issuance by the Commission of an order suspending the effectiveness
of the Registration Statement pursuant to Section 8 of the Act or
of the initiation of the any proceedings for that purpose, (iv) of
the happening of any event which in the judgment of the Company
makes any material statement in the Registration Statement or
Prospectus untrue or which requires the making of any changes in
the Registration Statement or Prospectus in order to make the
statements therein not misleading, and (v) of the refusal to
qualify or the suspension of the qualification of the Stock for
offering or sale in any jurisdiction, or of the institution of any
proceedings for any of such purposes. The Company will use every
reasonable effort to prevent the issuance of any such order or of
any order preventing or suspending such use, to prevent any such
refusal to qualify or any such suspension, and to obtain as soon as
possible a lifting of any such order, the reversal of any such
refusal, and the termination of any such suspension.
XX, 1997
Page 8
6.03. The Company will prepare and file promptly with the
Commission, upon request of the Underwriter, such amendments or
supplements to the Registration Statement or Prospectus, in form
satisfactory to the counsel to the Company, as in the opinion of
counsel to the Underwriter may be necessary or advisable in
connection with the offering or distribution of the Stock and will
use its best efforts to cause the same to become effective as
promptly as possible.
6.04. The Company will, when and as requested by the
Underwriter, qualify the Stock or such part thereof as the
Underwriter may determine for sale under the so-called blue sky
laws of North Dakota and will use its best efforts to qualify the
Stock or such part thereof as the Underwriter may determine for
sale under the so-called blue sky laws of such other states as may
be selected by mutual agreement between the Company and the
Underwriter, and to continue such qualification in effect so long
as required for the purposes of the distribution of the Stock. All
filings with regard to Blue Sky Registration will be completed by
the Company's attorneys at the expense of the Company. At the cost
of the Company, the attorneys for the Company shall prepare for and
deliver to the Underwriter a "Blue Sky Memorandum" describing and
opinioning upon the states in which effective registration and
qualification for sale has taken place.
6.05. The Company at its own expense will prepare and give and
will continue to give such financial statements and other
information to and as may be required by the Commission, or the
proper public bodies of the states in which the Stock may be
qualified.
6.06. During the period of five years following the Closing
Date, the Company will deliver to the Underwriter copies of each
annual report of the Company, and will deliver to the Underwriter:
(i) within 90 days after the close of each fiscal year of the
Company, a financial report of the Company and its subsidiaries, if
any, on a consolidated basis, and a similar financial report of all
unconsolidated subsidiaries, if any, all such reports to include a
balance sheet as of the end of the preceding fiscal year, an income
statement, a statement of changes in financial condition, and an
analysis of surplus covering such fiscal year, and all to be
reasonable detail and certified by independent public accountants
who may, however, be the regularly employed independent public
accountants of the Company; (ii) within 45 days after the end of
each quarterly fiscal period of the Company other than the last
quarterly fiscal period in any fiscal year, copies of the
consolidated income statement, statement of changes in financial
condition for that period, and the balance sheet as of the end that
period of the Company, and its subsidiaries, if any, and the income
statement, statement of changes in financial condition, and the
balance sheet of each unconsolidated subsidiary, if any, of the
Company for that period, all subject to year-end adjustment,
certified by the principal financial or accounting officer of the
Company; (iii) copies of all other statements, documents, or other
information which the Company shall mail or otherwise make
available to any class of its security holders, or shall file with
Commission; and (iv) upon request in writing from the Underwriter,
such other information as may reasonably be requested with
reference to the property, business and affairs of the Company and
its subsidiaries, if any.
If the Company shall fail to furnish the Underwriter with
financial statements as herein provided, within the times specified
herein, the Underwriter shall have the right to have such financial
statements prepared by independent public accountants of its own
choosing and the Company agrees to furnish such independent public
accountants such data and assistance and access to such records as
they may reasonably require to enable them to prepare such
statements and to pay their reasonable fees and expenses in
preparing the same.
XX, 1997
Page 9
6.07. The Company will pay, whether or not the transactions
contemplated hereunder are consummated or this Agreement is
prevented from becoming effective or is terminated, all costs and
expenses incident to the performance of its obligations under this
Agreement, including all expenses incident to the authorization of
the Stock and its issue and delivery to the Underwriter, any
original issue taxes in connection therewith, all transfer taxes,
if any, incident to the initial sale of the Stock to the public,
the fees and expenses of the Company's counsel and accountants, the
costs and expenses incident to the preparation, printing, copying
and filing under the Act and with the National Association of
Securities Dealers, Inc. of the Registration Statement, any
Preliminary Prospectus, and the Prospectus and any amendments or
supplements thereto, the cost of preparing and filing all exhibits
to the Registration Statement, this Agreement, the Participating
Dealer's Agreement, and the Blue Sky Memorandum, the cost of
printing and furnishing to the Underwriter copies of the
Registration Statement, copies of the Prospectus, and all other
documents or agreements related to this offering, and the cost of
qualifying the Stock under the state securities or blue sky laws as
provided in Section 6.04 herein including filing fees.
6.08. The Company will, as promptly as possible after each
annual fiscal period, render and distribute reports to its
shareholders which will include audited statement of its operations
and changes of financial position during such period and its
balance sheet as of the end of such period.
6.09. The Company will make generally available to its
security holders and will deliver to the Underwriter, as soon as
practicable, but in no event later than the first day of the
fifteenth full calendar month following the Effective Date of the
Registration Statement, an earnings statement (which need not be
audited but which will satisfy the provisions of Section 11 (a) of
the Act) covering a period of at least 12 months beginning after
the Effective Date.
6.10. Within the time during which the Prospectus is required
to be delivered under the Act, the Company will comply, at its own
expense, with all requirements imposed upon it by the Act, as now
or hereafter amended, by the Rules and Regulations, as from time to
time may be in force, and by any order of the Commission, so far as
necessary to permit the continuance of sales or dealings in the
Stock.
6.11. The Company will apply the net proceeds from the sale of
the Stock in the manner set forth in the Registration Statement and
Prospectus.
6.12. The Company will cause its transfer agent to provide the
Underwriter, for its confidential use, at the Company's expense,
copies of its daily transfer sheets and a final list of
shareholders through the date of the closing date of the offering.
6.13. The Company will deliver to the Underwriter true and
correct copies of the articles of incorporation of the Company and
all amendments thereto, all such copies to be certified by the
Secretary of State of North Dakota; true and correct copies of the
bylaws of the Company and of the minutes of all meetings of the
directors and shareholders of the Company held prior to the Closing
Date which in any way relate to the subject matter of this
Agreement; and true and correct copies of all material contracts to
which the Company is a party, other than contracts for sale of
products or services in the normal course of business.
6.14. Prior to the Closing Date, the Company will cooperate
with the Underwriter in such investigation as it may make or cause
to be made of all the properties, business and operations of the
Company in connection with the purchase and public offering of the
Stock, and the Company will make available to the Underwriter in
connection therewith such information in its possession as the
Underwriter or its counsel may reasonably request.
6.15. No offering, sale, or other disposition of any Stock or
common stock of the Company or any security convertible into Stock
or common stock of the Company will be made within 12 months after
the Effective Date, directly or indirectly, by the Company, other
than sales made hereunder or with the Underwriter's consent or
except pursuant to warrants outstanding as of the date hereof.
XX, 1997
Page 10
6.16. The Company has appointed ND Resources, Inc. Minot,
North Dakota, as Transfer Agent for the Stock subject to the
Closing. The Company will not change or terminate such appointment
without first obtaining the written consent of the Underwriter,
which consent shall not be unreasonably withheld. The Company has
also obtained a CUSIP number for its Stock.
6.17. The Company will use all reasonable efforts to comply or
cause to be complied with the conditions precedent to the several
obligations of the Underwriter specified in the Agreement.
6.18. The Company agrees to file with the Commission all
required reports on Form SR in accordance with the provisions of
Rule 463 promulgated under the Act and to provide a copy of such
reports to the Underwriter and its counsel.
6.19. The Company understands and agrees that all proposed
advertising for the offering will be made available to the
Underwriter at least 21 days prior to use for purposes of filing
with the NASD and shall not be used without the approval of the
Underwriter.
6.20. The Company states that it has registered the class of
equity securities of which the Stock is a part under the Securities
and Exchange Act of 1934 by filing with the Securities and
Exchange Commission a registration statement (and such copies
thereof as the Commission required) with respect to such security,
containing such information and documents as the Commission
required in an application to register a security pursuant to
subsection (g) of Section 12 of the Securities Exchange Act of
1934, as amended. For a period of five (5) years after the
Effective Date, the Company shall maintain its registration under
the Securities Exchange Act of 1934 of the Class of equity
securities of which the Stock is a part.
6.21. The Company shall provide the Underwriter and its
counsel, within 90 days after the Closing, at the Company's sole
expense, one bound volume each of closing and all other documents
related to this Offering.
6.22. The Company will advise the Underwriter immediately and
confirm in writing the receipt by the Company of notice of the
initiation or threat of any action, proceeding, or investigation to
which it or its property is subject in a court of competent
jurisdiction, or before the Securities and Exchange Commission, any
state securities commission, or any other federal or state
regulatory agency. The Company will not acquiesce in any such
action, proceeding, or investigation, or consent to the entry of
any orders therein, without the Underwriter's prior written
approval.
6.23. The Company shall promptly prepare and file with the
Commission, from time to time, such reports as may be required to
be filed by the Act, the Exchange Act and the rules and regulations
of the Commission promulgated thereunder.
6.24. The Company shall make application and take all
necessary and appropriate actions for listing in Standard and
Poor's Corporation Reports within 30 days following the closing
date of the offering. If at any time in the three (3) years
subsequent to the effective date the Company shall be capable of
qualifying for NASDAQ listing, it shall promptly apply for such
listing.
XX, 1997
Page 11
6.25. No officer and/or director of the Company (including any
persons serving in such capacities as officers or directors as of
the date of this Agreement through the effective date or during any
segment of the 90-day period beginning on the date the Registration
Statement becomes effective) without the Underwriter's written
consent shall offer for sale or sell, directly or indirectly,
except to other officers or directors, any stock owned by such
person on the date of this Agreement until at least six months
after the Effective Date. The Company shall deliver to the
Underwriter the undertakings, satisfactory to the Underwriter, as
of the date of this Agreement, of all such persons. All
certificates evidencing such shares will be stamped at closing with
an appropriate restrictive legend and the Company will cause the
transfer agent to note such restriction on the transfer books and
records of the Company.
The Company states that no securities of the Company have been
issued, and at the effective date of the offering, no securities
will have been issued to employees or other persons pursuant to the
exemption provided by Section 230.701 of the Securities Act of 1933
which could qualify for resale pursuant to Section 230.701 of the
Securities Act of 1933. The Company further agrees that no
securities of the Company will be issued to employees or other
persons under the exemption provided by Section 230.701 or which
could qualify for resale under Section 230.701(c)(3) for a period
of two (2) years from the closing date of the offering.
6.26. The Company shall employ the service of a financial
public relations expert or firm reasonably acceptable to the
Underwriter for a period of no less than one (1) year from the
Closing Date of the Public Offering.
6.27. If upon termination for any reason other than completion
of the offering, the Underwriter has incurred actual expenses in
excess of the deposit described in Section 3.02 hereof the
Underwriter shall be entitled to retain such deposit amount, and in
addition, the Company shall be liable to the Underwriter,
immediately upon such termination, for all expenses incurred in
connection with the Underwriting and Public Offering by the
Underwriter in excess of such deposit amount. Expenses incurred by
the Underwriter in connection with the Underwriting and Public
Offering include, but are not limited to, due diligence
investigation, fees of Underwriter's counsel, fees paid to experts
as review or investigative consultants, costs advanced on behalf of
the Company, escrow fees, escrow charges, travel, postage, long
distance phone, promotional costs, and expenses incurred related to
the efforts made to establish a selling group.
SECTION 7
Effectiveness of Agreement
This Agreement shall become effective (i) at 10:00, Minot time,
on the first full business day after the Effective Date, or (ii)
upon release by the Underwriter of the Stock for offering after the
Effective Date, whichever shall first occur. The time of the
release by the Underwriter of the Stock for offering, for the
purposes of this Section 7, shall mean the time of the release by
the Underwriter for publication of the first newspaper
advertisement which is subsequently published relating to the
Stock, or the time of the first mailing of copies of the Prospectus
relating to the Stock, which are subsequently delivered, whichever
shall first occur. The Underwriter agrees to notify the Company
immediately after the Underwriter shall have taken any action, by
release or otherwise, whereby this Agreement shall have become
effective. This Agreement shall, nevertheless, become effective at
such time earlier than the time specified above, after the
Effective Date, as the Underwriter may determine by notice to the
Company. Nothing in this paragraph shall be construed to limit the
obligations or liabilities or any party prior to or in absence of
the effectiveness described above.
XX, 1997
Page 12
SECTION 8
Conditions of the Underwriter's Obligations
The Underwriter's obligations to act as agent of the Company
hereunder and to find purchasers for the Stock and to make payment
to the Company hereunder on the Closing Date shall be subject to
the accuracy, as of the Closing Date, of the representations and
warranties on the part of the Company herein contained, to the
fulfillment of or compliance by the Company with all covenants and
conditions hereof, and to the following additional conditions:
8.01. On or prior to the Closing Date, no order suspending the
effectiveness of the Registration Statement shall have been issued
and no proceedings for that purpose shall have been initiated or
threatened by the Commission or be pending; any request for
additional information on the part of the Commission (to be
included in the Registration Statement or Prospectus or otherwise)
shall have been complied with to the satisfaction of the
Commission; and neither the Registration Statement or the
Prospectus nor any amendment thereto shall have been filed to which
counsel to the Underwriter shall have reasonably objected in
writing or have not given their consent.
8.02. The Underwriter shall not have disclosed in writing to
the Company that the Registration Statement or the Prospectus or
any amendment thereof or supplement thereto contains an untrue
statement of a fact which, in the opinion of counsel to the
Underwriter, is material, or omits to state a fact which, in the
opinion of such counsel, is material and is required to be stated
therein, or is necessary to make the statements therein not
misleading.
8.03. Between the date hereof and the Closing Date, the
Company shall not have sustained any loss on account of fire,
explosion, flood, accident, calamity or any other cause, of such
character as it materially adversely affects its business or
property considered as an entity, whether or not such loss is
covered by insurance.
8.04. Between the date hereof and the Closing Date, there
shall be no litigation instituted or threatened against the Company
and there shall be no proceeding instituted or threatened against
the Company before or by any federal or state commission,
regulatory body or administrative agency or other governmental
body, domestic or foreign, wherein an unfavorable ruling, decision
or finding would materially adversely affect the business,
franchises, licenses, operations, financial condition or income of
the Company considered as a whole.
8.05. Except as contemplated herein or as set forth in the
Registration Statement and Prospectus, during the period subsequent
to the date of the last audited balance sheet included in the
Registration Statement and prior to the Closing Date, the Company
(A) shall have conducted its business in the usual and ordinary
manner as the same was being conducted on the date of the most
recent balance sheet included in the Registration Statement, and
(B) except in the ordinary course of its business, shall not have
incurred any liabilities or obligations (direct or contingent) or
disposed of any of its assets, or entered into any material
transaction or suffered or experienced any substantially adverse
change in its condition, financial or otherwise. At the Closing
Date, the capital stock and surplus accounts of the Company shall
be substantially the same as at the date of the most recent balance
sheet included in the Registration Statement, without considering
the proceeds from the sale of the Stock, other than as may be set
forth in the Prospectus. The shares of the Stock offered and sold
to the public shall represent 23.9% of the total shares of the
Company's outstanding Stock if the maximum number of shares are
sold.
8.06. The authorization of the Stock, the Registration
Statement, the Prospectus and all corporate proceedings and other
legal matters incident thereto and to this Agreement shall be
reasonably satisfactory in all respects to counsel to the
Underwriter, and the Company shall have furnished such counsel such
documents as they may have requested to enable them to pass upon
the matter referred to in this subparagraph.
8.07. The Company shall have furnished to the Underwriter the
opinion, dated the Closing Date, addressed to the Underwriter, of
Xxxxxx Xxxxx, Esq., counsel to the Company, to the effect that:
XX, 1997
Page 13
(i) The Company has been duly incorporated and is a validly
existing corporation in good standing under the laws of
the State of North Dakota, with full corporate
power and authority to own and operate its properties and to carry
on its business as set forth in the Registration Statement and
Prospectus.
(ii) The Company is duly qualified and licensed to transact
business in each state or other jurisdiction in which the
Company transacts business and by each governmental
authority by which the Company is required to be licensed.
(iii) The Company has an authorized and outstanding capitalization
as set forth in the Registration Statement and Prospectus;
the Stock, and the outstanding common stock of the Company
conform to the statements concerning them in the Registration
Statement and Prospectus; the outstanding common
stock of the Company has been duly and validly issued and is fully
paid and non-assessable and contains no preemptive rights; except
as set forth in the Registration Statement and Prospectus, there
are no outstanding options, warrants, or other rights to subscribe
for purchase, or receive shares of the Company's common stock or
securities convertible into common stock; the Stock has been duly
and validly authorized and, upon issuance thereof and payment
therefore in accordance with this Agreement, will be duly and
validly issued, fully paid and non-assessable, free and clear of
all liens, encumbrances, equities and claims whatsoever and will
not be subject to the preemptive rights of any shareholder of the
Company.
(iv) No consents, approvals, authorizations or orders or agencies,
officers of other regulatory authorities are necessary for
the valid authorization, issue or sale of the Stock hereunder,
except as required under the Act, or the blue sky or other
state securities laws.
(v) The issuance and sale of the Stock and the consummation of
the transactions herein contemplated and compliance with the
terms of this Agreement will not conflict with or result in
a breach of any of the terms, conditions, or provisions
of, or constitute a default under, the articles of
incorporation, or bylaws of the Company, or any note, indenture,
mortgage, deed of trust, or other agreement or instrument known to
such counsel to which the Company is a party or by which the
Company or any of its property is bound or any existing law, order,
rule, regulation, writ, injunction, or decree known to such counsel
of any government, governmental instrumentality, agency, body,
arbitration tribunal, or court, domestic or foreign, having
jurisdiction over the Company or its property.
(vi) The Registration Statement has become effective under
the Act and, to the best of the knowledge of such counsel,
no order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or are pending or contemplated by the
Commission under the Act, and the Registration Statement and
Prospectus, and each amendment and supplement thereto, comply as to
form in all material respects with the requirement of the Act and
the Rules and Regulations thereunder (except that no opinion need
be expressed as to financial statements and financial data
contained in the Registration Statement and Prospectus), and such
counsel have no reason to believe that either the Registration
Statement or the Prospectus or any such amendment or supplement
contains any untrue statement of a material fact or omits to state
a material fact required to be stated therein or necessary to make
the statements therein not misleading, and such counsel is familiar
with all contracts referred to in the Registration Statement or
Prospectus and such contracts are sufficiently summarized or
disclosed therein or filed therewith, and such counsel does not
know of any legal or governmental proceedings pending or threatened
to which the Company is subject of such a character required to be
disclosed in the Registration Statement or the Prospectus which are
not disclosed and properly described therein.
XX, 1997
Page 14
(vii) This Agreement has been duly authorized and executed by the
Company and is a valid and binding agreement of the Company.
(viii) The Company has good and valid title to all of the real
property described in the Registration Statement as owned
by the Company, free and clear of all security interests,
mortgages, liens, and encumbrances, except as may be
specifically described.
(ix) Any opinions of counsel for the Company previously furnished
to the Underwriter remain valid, true, correct and in full
force and effect.
8.08.01. On the Closing Date, the Underwriter shall have
received from a CPA firm satisfactory to the Underwriter, a letter,
dated the Closing Date, stating that (i) with respect to the
Company they are independent public accountants within the meaning
of the Act and the published Rules and Regulations; (ii) in their
opinion, the financial statements and supporting schedules examined
by them of the Company at all dates and for all periods referred to
in their opinion and included in the Registration Statement and
Prospectus comply as to the form in all material respects with the
applicable requirements of the Act and the published Rules and
Regulations; (iii) on the basis of certain indicated procedures
(but not an examination in accordance with generally accepted
auditing principles), including examinations of the debt
instruments, if any, of the Company set forth under
"Capitalization" in the Prospectus, a reading of the latest
available interim unaudited financial statements of the Company,
whether or not appearing in the Prospectus, inquiries of the
officers of the Company or other persons responsible for its
financial and accounting matters and a reading of the minute books
of the Company, nothing has come to their attention which would
cause them to believe that during the period from the last audited
balance sheet included in the Registration Statement to a specified
date not more than five days prior to the date of such letter (a)
there has been any change in the capital stock or other securities
of the Company of any payment or declaration of any dividend or the
securities of the Company of any payment or declaration of any
dividend or other distribution in respect thereof or exchange
therefore from that shown in its audited balance sheets or in the
debt of the Company from that shown in its audited balance sheets
or in the debt of the Company from that shown or contemplated under
"Capitalization" in the Registration Statement or Prospectus (other
than as set forth in or contemplated by the Registration Statement
or Prospectus); (b) there have been any decreases in net current
assets or net assets as compared with amounts shown in the last
audited balance sheet included in the Prospectus; (c) there were
any decreases, as compared with amounts shown in the last audited
balance sheet, in net sales or in the total or per share amounts of
net income, except in all instances for changes disclosed in or
contemplated in or contemplated by the Registration Statement and
Prospectus; (d) the outcome of no future events which may be
referred to in their opinion included in the Registration Statement
and Prospectus has been determined, upon which future events the
recovery of the Company's assets is dependent; and (e) on the basis
of their indicated procedures and discussions referred to in clause
(iii) above, nothing has come to their attention which, in their
judgment, would cause them to believe or indicate that any such
change or decrease has occurred, except in all instances for
changes or decreases that the Registration Statement and prospectus
disclosed as either having occurred or as expected to occur.
XX, 1997
Page 15
8.08.02. The Underwriter shall be furnished without charge, in
addition to the original signed copies, such number of signed or
photostatic or conformed copies of such letters as the Underwriter
shall reasonably request.
8.08. The Company shall have furnished to the Underwriter a
certificate of the President and the Treasurer of the Company,
dated as of the Closing Date, to the effect that:
(i) The representations and warranties of the Company in
this Agreement are true and correct at and as of the
Closing Date, and the Company has complied with all the agreements
and has satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date.
(ii) The Registration Statement has become effective and
no order suspending the effectiveness of the Registration
Statement has been issued and to the best of the
knowledge of the respective signers, no proceeding for that purpose
has been initiated or is threatened by the Commission.
(iii) The respective signers have each carefully examined the
Registration Statement and Prospectus and
any amendments and supplements thereto and to the best of their
knowledge the Registration Statement and the Prospectus and any
amendments and supplements thereto contain all statements required
to be stated and correct, and neither the Registration Statement
nor the Prospectus nor any amendment or supplement thereto includes
any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make
the statements therein not misleading and, since the effective date
of the Registration Statement, there has occurred no event required
to be set forth in an amended or a supplemented Prospectus which
has not been so set forth.
(iv) Except as set forth in the Registration Statement and Prospectus,
since the respective dates as of which information is given
in the Registration Statements and Prospectus and prior to
the date of such certificate, (A) there has not been any
substantially adverse change, financial or otherwise,
in the affairs or condition of the Company, and (B) the Company has
not incurred any liabilities, direct or contingent, or entered into
any transaction, otherwise than in the ordinary course of business.
(v) Subsequent to the respective dates as of which information
is given in the Registration Statement and Prospectus, no
dividends or distributions whatever have been declared and/or
paid on or with respect to the common stock of the
Company.
8.10. All of the Stock being offered by the Company purchased
from the Company shall be tendered for delivery in accordance with
the terms and provisions of this Agreement.
8.11. The Stock shall be qualified and the Blue Sky Memorandum
and opinion provided as provided in Section 6.04 of this Agreement,
and each qualification shall be in effect and not subject to any
stop order or other proceeding on the Closing Date.
8.12. All opinions, letters, certificates, and evidence
mentioned above or elsewhere in this Agreement shall be deemed to
be in compliance with the provisions thereof only if they are in
form and substance satisfactory to counsel to the Underwriter,
whose approval shall not be unreasonably withheld.
XX, 1997
Page 16
8.13. The Company shall also supply such other good standing,
tax, incumbency and other certificates as the Underwriter shall
reasonably request.
8.14. Any certificate signed by an officer of the Company and
delivered to the Underwriter or to counsel for the Underwriter will
be deemed a representation and warranty by the Company to the
Underwriter as to the statements made therein.
SECTION 9
Termination
9.01. This Agreement may be terminated by the Underwriter by
notice to the Company in the event that the Company shall have
failed or been unable to comply with any of the terms, conditions,
or provisions of this Agreement on the part of the Company to be
performed, complied with or fulfilled (including but not limited to
those specified in Sections 2, 3, 5, 6 and 9 hereof) within the
respective times herein provided, unless compliance therewith or
performance or satisfaction thereof shall have been expressly
waived by the Underwriter in writing.
9.02. This Agreement may be terminated by the Underwriter by
notice to the Company at any time if, in the sole judgment of the
Underwriter, solicitation for sale of, payment for and/or delivery
of the Stock is rendered impracticable or inadvisable because (i)
additional material governmental restrictions not in force and
effect on the date hereof shall have been imposed upon the trading
in securities generally, or trading in securities generally on any
established stock exchange or over the counter markets shall have
been suspended, or a general moratorium shall have been established
by federal or state authorities, or (ii) any material adverse
change in market conditions, including but not limited to war or
other national calamity, shall have occurred, or (iii) the
condition of the market (either generally or with reference to the
sale of the Stock to be offered hereby) or the condition of any
matter affecting the Company or any other circumstance is such that
it would be undesirable, impracticable, or inadvisable in the
judgment of the Underwriter to proceed with this Agreement or with
the public offering.
9.03. Except as to the reimbursement of expenses pursuant to
Paragraph 3.02 hereof, any termination of this Agreement pursuant
to this Section 9 shall be without liability of any character
(including, but not limited to, loss of anticipated profits or
consequential damages) on the part of any party thereto. No party
shall be liable under this Agreement or for any matter related to
the public offering for loss of anticipated profits or
consequential damages.
SECTION 10
Underwriter's Representations and Warranties
The Underwriter represents and warrants to and agrees with the
Company that:
10.01. The Underwriter is registered as a broker-dealer with
the Securities and Exchange Commission and is registered as a
broker-dealer in the State of North Dakota and is a member in good
standing of the National Association of Securities Dealers, Inc.
10.02. There is not now pending or, to the knowledge of the
Underwriter, threatened against the Underwriter any material action
or proceeding of which the Underwriter has been advised, either in
any court of competent jurisdiction, before the Securities and
Exchange Commission or any state securities commission concerning
the Underwriter's activities as a broker or dealer, nor has the
Underwriter been named as a "cause" in any material action or
proceeding (except as set forth in the Registration Statement or by
letter to the Company from the Underwriter).
XX, 1997
Page 17
SECTION 11
Notice
Except as otherwise expressly provided in this Agreement:
11.01. Whenever Notice is required by the provisions of this
Agreement to be given to the Company, such notice shall be in
writing addressed to the Company as follows:
ND Holdings, Inc.
0 Xxxxx Xxxx
Xxxxx, XX 00000
with a copy to:
Xxxxxx Xxxxx, Esq.
0000 X. Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
11.2 Whenever notice is required by the provisions of this
Agreement to be given to the Underwriter, such notice shall be
given in writing addressed to the Underwriter at the address set
out at the beginning of this Agreement.
Xxxxxxx Xxxxx, President
Financial Advantage Brokerage Services, Inc.
17 South Main (PO BOX 1934)
Minot, ND 58702
SECTION 12
Miscellaneous
12.01. Benefit. This Agreement is made solely for the benefit
of the Underwriter, the Company, their respective officers and
directors and any controlling person referred to in Section 15 of
the Act, and their respective successors and assigns, and no other
person shall acquire or have any right under or by virtue of this
Agreement. The term "successor" or the term "successors and
assigns" as used in this Agreement shall not include any
purchasers, as such, of any of the Stock.
12.02. Survival. The respective indemnities, agreements,
representations, warranties, covenants and other statements of the
Company or its officers as set forth in or made pursuant to this
Agreement and the indemnity agreements of the Company and the
Underwriter contained in Section 7 hereof shall survive and remain
in full force and effect, regardless of (i) any investigation made
by or on behalf of the Company or the Underwriter or any such
officer or director thereof or any controlling person of the
Company or of the Underwriter, (ii) delivery of or payment for
Stock, or (iii) the Closing, and any successor of the Company and
the Underwriter or any controlling person, officer or director
thereof, as the case may be, shall be entitled to the benefit
thereof.
12.03. Governing Law and Venue. The validity, interpretation
and construction of this Agreement and of each part hereof will be
governed by the laws of the State of North Dakota. Any action
arising from or related to this Agreement or the Public Offering of
the stock shall be venued only in the District Court in and for the
County of Xxxx, State of North Dakota, or the United States
District Court for the District of North Dakota.
XX, 1997
Page 18
12.04. Underwriter's Information. The statements with respect
to the public offering of the Stock on the cover page of the
Prospectus and under the caption "Underwriting" in the Prospectus
constitute the written information furnished by or on behalf of the
Underwriter referred to in subsection 2.02 hereof.
12.05. Counterparts. This Agreement may be executed in any
number of counterparts, each of which may be deemed an original and
all of which together will constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the
Agreement between you and the Company.
Very truly yours,
ND HOLDINGS, INC.
__________________________________
Xxxxxx Xxxxxxx, President
We hereby confirm as of the date hereof that the above letter
sets forth the agreement between the Company and us:
FINANCIAL ADVANTAGE BROKERAGE SERVICES, INC.
By:_______________________________
Xxxxxxx Xxxxx, President
