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Exhibit 10.6
UNITY HOLDINGS, INC.
1,000,000 Shares of Common Stock
(Par Value .01 Per Share)
Agency Agreement
February 5, 1998
XXXXXXXXX, XXXXXX & XXXXX
0000 Xxxxxxxxx Xxxx, XX
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Dear Sirs:
Unity Holdings, Inc., a Georgia corporation (the "Company"), hereby confirms its
agreement with XXXXXXXXX XXXXXX & XXXXX (the "Agent"), as follows:
1. General. The Company proposes to offer, through the Agent on a "best
efforts basis", up to 1,000,000 shares (the "Maximum Offering") of the
common stock, $.01 par value, of the Company (the "Shares") at a price
of $10 per Share in an offering to the public (the "Offering").
The Company has filed a Registration Statement on Form SB-2 (the
"Registration Statement") with the Securities and Exchange Commission
(the "SEC") pursuant to which the Company will register the Shares for
sale to the public.
On terms and conditions specified in this Agency Agreement (the
"Agreement"), the Agent, for the compensation specified below, will
provide the services specified in this Agreement to assist the Company
in the Offering.
2. The Offering.
2.1 Services to be Rendered. Subject to the terms and conditions
hereof and upon the basis of the representations, warranties
and agreements herein set forth, the Company hereby appoints
the Agent as its agent to sell the Shares on a best efforts
basis. The Agent hereby accepts such appointment and agrees to
use its best efforts to find purchasers for the Shares. The
Company and the Agent agree that the Shares shall be offered
to the investing public in Georgia and any other state or
states where the Company deems it appropriate to offer the
Shares, all in compliance with the Securities Act of 1933 (the
"Securities Act"), the Securities Exchange Act of 1934 (the
"Exchange Act"), and the securities or "blue sky" laws of any
applicable jurisdiction.
2.2 Exclusive Engagement. The Company shall not engage any other
person other than the Agent to solicit offers or sales of
Shares during the Offering Period (as such term is herein
defined). However the Company may in its sole discretion
terminate this Agreement after 90 days from the date hereof.
2.3 Compensation. The Company agrees to pay to the Agent for the
Agent's services in connection with the Offering a commission
on all Shares sold in the Offering (but not including Shares
purchased by the organizing directors of the Company named in
the Registration Statement) as follows: (a) in the event that
the Agent sells 740,000 Shares (the "Minimum Offering") on or
before the date which is 90 days from and after the Effective
Date (herein defined), the sum of $.50 per Share, or (b) in
the event that the Minimum Offering is not achieved within
such 90 day period, the sum of $.40 per share. The commission
to be paid by the Company on the first 800,000 shares sold by
the Sales
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Agent shall not exceed $300,000 in any event. If the Company
elects to continue the Offering beyond such 800,000 shares the
Company shall pay a commission on all Shares sold in the
continued Offering of $.50 per Share. At any time after the
Minimum Offering has been achieved, and upon the Company's
written approval, the Agent may engage other agents to sell
the Shares pursuant to an agreement acceptable to the Agent
and providing for a commission payable by the Company of up to
$.80 per share. Notwithstanding the foregoing, the failure of
the Agent to engage an agent or agents shall not constitute a
failure to perform or discharge the duties of the Agent under
this Agreement.
2.4 Affiliated Agent. The Company acknowledges and agrees that
Banc Services Corporation ("BSC") is an affiliate of Agent and
is currently acting as investment banker to the Company and
will participate as an agent in the Offering hereunder. The
Company has agreed to pay BSC for its services the sum of
$20,000, payable as follows: (a) $10,000 (which has been
paid), and (b) $10,000 upon completion of certain marketing
materials, which shall be filed with the SEC and National
Association of Securities Dealers ("NASD"). The compensation
payable to BSC pursuant to subparagraphs (a) and (b) above
shall be deducted from the gross commission payable to the
Agent at the Initial Closing hereunder.
2.5 Payment of Expenses. The Company will pay all expenses in
connection with the Offering including, but not limited to,
the Company's attorneys' fees, expenses for auditing and
accounting services, advertising fees, all securities
registration and NASD filing fees, postage, and document
reproduction expenses, and the engraving, issuance, transfer
and delivery of certificates for the Stock. The Company shall
pay BSC a monthly expense allowance payable in increments of
$5,000 each commencing on the Effective Date of the Offering
and every 30 days thereafter, provided however, that such
monthly expense allowance shall be limited to 5 months or a
maximum of $25,000. At Closing, the sum of (a) the aggregate
sum of the monthly expense allowance paid to the BSC to the
date of Closing, minus (b) BSC's and the Agent's accountable
out-of-pocket expenses, shall be deducted from the commission
otherwise payable to the Agent hereunder.
2.6 Blue Sky. The Company contemplates that the Offering will be
made in those states listed in Exhibit A attached hereto. The
Company shall, at its sole expense, take or cause to be taken
all necessary action and shall furnish to whomever the Agent
may direct such information as may be required to qualify the
Shares for sale under the laws of such jurisdictions and any
other jurisdictions where the Company may hereafter elect that
Shares shall be offered and shall continue such qualifications
in effect for as long as may be necessary for the distribution
of the Shares. At the request of the Agent the Company shall
cause its counsel to prepare and furnish to the Agent "Blue
Sky" memoranda concerning the requirements for qualification
of the Shares for sale under the law of such jurisdictions,
and the Agent shall be entitled to rely on such memoranda in
carrying out its obligations under this Agreement.
2.7 Offering Period. The Shares will be offered for sale during
the period (the "Offering Period") commencing with the date
that the Registration Statement is declared effective by the
SEC (the "Effective Date" of the Offering) until the earlier
to occur of (a) the date the Minimum Offering is achieved, or
(b) ___ days from and after the Effective Date, or (c) the
termination of the Offering by the Company. The Company may,
upon written notice to the Agent, elect to extend the Offering
Period, and as used herein, the term "Offering Period" shall
include any such extension.
2.8 Escrow Agreement. During the period of the Offering, the
proceeds form the sale of Shares shall, upon receipt by the
Agent, be promptly placed in a special account with First
Tennessee Bank (the "Escrow Agent"), subject to an escrow
agreement substantially in the form of the Escrow Agreement
which is attached hereto as Exhibit B and incorporated herein
by this reference (the "Escrow Agreement"). Each of the
parties hereto agrees that this Agreement shall be
automatically terminated and the entire proceeds received from
subscriptions for the Shares shall be returned to the
subscribers for such Shares, without interest, upon the
failure of the Minimum Offering to be achieved on or before
the date which is 90 days from and after the Effective Date,
unless the Offering is extended by the Company.
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2.9 Delivery of and Payment for the Shares. Provided that the
Escrow Agent is authorized and empowered in accordance with
the terms of the Escrow Agreement to release the proceeds of
the Offering from escrow as described in the Escrow Agreement,
and provided further that this Agreement shall not have been
terminated pursuant to the terms hereof, payment for the
Shares shall be made at a closing (the "Closing") to be held
at the offices of the Company's counsel (or such other place
as the parties hereto may agree), as provided herein. The date
of a Closing hereunder is sometimes referred to as the
"Closing Date". Payment for the Shares sold on behalf of the
Company by the Agent shall be made to the Company or to the
order of the Company by the Escrow Agent acting upon
instructions from the Company and the Agent pursuant to the
terms and conditions of the Escrow Agreement, and payment
shall be delivered to the Company by the Escrow Agent by one
or more certified or official bank checks in next-day funds.
Such payment shall be made upon delivery by the Company of the
certificates for the Shares to the Agent, for the respective
accounts of the several purchasers of the Shares against
receipt therefor signed by the Agent. The certificates for the
Shares to be delivered at any Closing will be registered in
such name or names, and shall be in such denominations, as the
Agent may request; provided, however, that such request shall
be made no sooner than three (3) business days prior to the
Closing Date. The certificates representing the Shares will be
made available to the Agent for inspection, checking and
packaging at the office of the Company's transfer agent and
registrar (the "Transfer Agent"), not less than one (1)
business day prior to the Closing Date.
2.10 Closings.
(a) As soon as practicable after the Agent has
determined that the Minimum Offering has been
achieved, the Agent shall notify the Company in
writing thereof. The Agent's notice to the Company
hereunder shall set forth the number of shares of
Common Stock to be delivered to the Agent by the
Company against payment therefor by the Escrow Agent.
The initial Closing hereunder (the "Initial Closing")
shall take place at 10:00 a.m., Atlanta time on the
fifth (5th) business day after the date on which the
Agent notifies the Company as provided herein or on
such other date and time as agreed to in writing by
the parties hereto; provided, however, that the
Initial Closing must occur no later than the tenth
(10th) business day after such notice is given by the
Agent.
(b) By notice given in writing at each Closing hereunder,
the Company may elect to continue this Agreement
until such time as the maximum number of Shares as
provided herein has been sold, or until August 31,
1999, whichever is earlier; provided, however, that
such Shares may be sold only in compliance with the
terms and conditions of this Agreement and the
Registration Statement.
(c) Closing with respect to Shares sold pursuant to a
continuation of this Agreement pursuant to Section
2.10(b) hereof will occur on such date(s) and time(s)
as the parties may agree in writing from time to
time.
3. Representations, Warranties and Agreements of the Company. The Company
hereby represents and warrants to, and agrees with, the Agent that:
(a) The prospectus, including any amendments or supplements
thereto (the "Prospectus") when made available to prospective
purchasers throughout the Offering Period, will comply in all
material respects with federal statutes, regulations and
policy statements applicable thereto, including, without
limitation, the applicable rules, regulations and policy
statements of the SEC. At all times during the Offering
Period, the Prospectus will contain all information including
financial statements that are required to be included therein
in accordance with applicable regulations (including
interpretations thereof), and policy statements of the SEC and
the Prospectus will not 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,
in light of the circumstances under which they are made, not
misleading; provided, however, that no representations or
warranties are made to the Agent with respect to statements or
omissions made in reliance upon, or in conformity with,
written information furnished
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to the Company with respect to the Agent, by the Agent, or on
its behalf expressly for use in the Prospectus.
(b) The Company is, and at all times during the Offering Period
will be, a corporation duly incorporated and organized and is,
and will be, validly existing and in good standing under the
laws of the State of Georgia. The Company has, and at all
times during the Offering Period will have, full power and
authority to own or lease all of its properties and conduct
all of its business as described in the Prospectus.
(c) The Company is, and at all times during the Offering Period
will be, duly qualified to do business and in good standing as
a foreign corporation in each jurisdiction where the ownership
or leasing of its properties or the conduct of its business
required such qualification.
(d) The financial statements contained in the Prospectus present
fairly and accurately the financial position of the Company as
the respective dates thereof and the results of operations of
the Company for the respective periods covered thereby, all in
conformity with generally accepted accounting principles
applied on a consistent basis throughout the entire periods
involved.
(e) At all times during the Offering Period except as set forth in
or contemplated by the Prospectus: (i) the Company will not
have incurred and will not incur any material liabilities or
obligations, direct or contingent, except for liabilities or
obligations entered into in the ordinary course of business,
and will not have entered into and will not enter into any
material transactions; and (ii) there will have been no, and
there will be no, material adverse change, or any development
relating to the Company which the Company has cause to believe
would involve a prospective material adverse change in or
affecting the business, business prospects, general affairs,
management, financial position, net worth, results of
operations, or properties of the Company, or the value of the
assets of the Company.
(f) Except as set forth in or contemplated by the Prospectus, to
the best of its knowledge, the Company does not have and will
not have during the Offering Period any material contingent
liabilities or obligations.
(g) There are no actions, suits or proceedings pending or, to the
best of its knowledge, threatened against or affecting the
Company or its business, business prospects, financial
condition, results of operations or properties, or against or
affecting any of its principal officers, before or by any
federal or state court, commission, regulatory body,
administrative agency or other governmental body, domestic or
foreign, wherein an unfavorable ruling or decision or finding
would materially and adversely affect the business, business
prospects, financial condition, results of operations, or
properties of the Company.
(h) At all times during the offering Period, the Company will have
title to all properties and assets described in the Prospectus
as being owned by the Company, free and clear of all liens,
charges, encumbrances or restrictions, except such as are
described in the Prospectus or which are not material to the
business of the Company. At all times during the Offering
Period, the Company will have valid, existing and enforceable
leases to the properties and equipment described in the
Prospectus as being leased by the Company, with such
exceptions as are not material and do not materially interfere
with the uses made, and proposed to be made, of such
properties by the Company.
(i) The Company has filed all federal and state income tax returns
which are required to be filed by it and has paid all taxes
shown on such returns and on all assessments received by it to
the extent such taxes have become due. To the best of its
knowledge, all taxes with respect to which the Company is
obligated have been paid or adequate accruals have been
established to cover any such unpaid taxes.
(j) The Company is not, and at all times during the Offering
Period will not be, in violation of its articles of
incorporation or bylaws or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any bond, debenture, note or other evidence of
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indebtedness or in any contract, indenture, mortgage, loan
agreement or other agreement or instrument to which the
Company is a party or by which it or any of its properties is
bound, and the Company is not, and at all times during the
Offering Period will not be, in violation of any law, order,
rule, regulation, writ, injunction or decree of any
government, governmental instrumentality or court, domestic or
foreign, of which it has knowledge. Neither the Company, nor
any employee or agent thereof, has made any payment of funds
of the Company or received or retained any funds in violation
of any law, rule or regulation which payment, receipt or
retention of funds is not fully disclosed in the Prospectus.
(k) At all times during the Offering Period, there will be no
document or contract of the character required to be described
in the Prospectus which is not described as required, and the
descriptions in the Prospectus are accurate and complete and
fairly present the information required to be shown.
(l) No statement, representation, warranty or covenant made by the
Company in this Agreement or made in any certificate or
document required by this Agreement to be delivered to the
Agent was or will be, when made, inaccurate, untrue or
incorrect in any material respect.
(m) The Company has full right, power and authority to enter into
this Agreement and this Agreement has been duly authorized,
executed and delivered by the Company and will be, upon
acceptance by the Agent, a valid and binding agreement of the
Company enforceable in accordance with its terms. The
performance of this Agreement and the consummation of the
transactions contemplated herein will not result in a breach
or violation of any of the terms or provision of, or
constitute a default under the articles of incorporation or
the bylaws of the Company, any obligation, agreement, covenant
or condition contained in any bond, debenture, note or other
evidence or indebtedness or in any contract, indenture,
mortgage, loan agreement or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries or any of their
respective properties is bound, or any law, order, rule,
regulation, writ, injunction or decree of any government,
governmental instrumentality or court, domestic or foreign,
and will not result in the creation or imposition of any lien,
charge claim or encumbrance upon any property or asset of the
Company. No consent, approval, authorization or order of any
government, governmental instrumentality or court is required
in connection with the execution of this Agreement or the
consummation of the transactions contemplated by this
Agreement except such as may be required by the NASD or by
state regulatory authorities under state securities or blue
sky laws in connection with the distribution of the Shares or
in connection with the Agent's services hereunder.
(n) For purposes of the Agent's obligation to file certain
documents and make certain representations to the NASD in
connection with the Offering: (i) the Company has not placed
any securities within the last eighteen months; (ii) there
have been no material dealings within the last twelve months
between the Company and any NASD member or any person related
to or associated with any such member; (iii) except as
contemplated by this Agreement, no financial or management
consulting contracts are outstanding with any other person;
(iv) there has been no intermediary between the Agent and the
Company in connection with the Offering and (other than BSC)
no person is being compensated in any manner for providing
such service.
4. Representations, Warranties and Agreements of the Agent. The Agent
represents and warrants to, and agrees with the Company that:
(a) Any and all information furnished to the Company by the Agent
in writing expressly for use in the Prospectus will not
contain any untrue statement of material fact or omit to state
any material fact necessary in order to make the statements
therein, in light of the circumstances under which they were
made, not misleading.
(b) The Agent is registered with the Securities and Exchange
Commission as a broker-dealer and is a member in good standing
with the National Association of Securities Dealers, Inc. (the
"NASD"), and the Agent and all its agents and representatives
have or will have required licenses and registrations to
perform its obligations under this Agreement; and such
registrations, membership
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and licenses will remain in effect during the term of this
Agreement. The Agent agrees that, in performing its
obligations under this Agreement, the Agent will comply with
all applicable statutes and the rules and regulations of the
NASD and any other federal or state governmental agency which
are applicable to it. This Agreement has been duly and validly
authorized, executed and delivered by the agent and is its
valid and binding agreement and obligation.
(c) All checks and funds received by the Agent with respect to the
subscription price from prospective purchasers in the Offering
shall be made payable to the escrow agent and transmitted
directly to the escrow agent by noon of the next business day
after receipt by the Agent. If the Offering is terminated
prior to the end of the Offering Period by the Company, then
subscription funds received after any such termination shall
be promptly returned to the subscribers for the Shares,
without interest.
(d) The Agent will deliver to the Company the original copies of
all subscription documents of prospective purchasers received
by the Agent in the Offering, and the Agent will promptly
inform the Company of any facts which come to the Agent's
attention which would cause a reasonable person to believe
that such subscription documents contain any material
misstatement or omission.
5. Covenants of the Company. The Company further agrees with and
covenants to the Agent as follows:
(a) To comply with the "Blue Sky" and other securities laws and
regulations of each state in which subscriptions are solicited
in the Offering pursuant to the mutual agreement of the Agent
and the Company and to assist the Agent in any necessary
registration or filings that may be required of the Agent with
respect to the Offering, in the states mutually agreed upon by
the Agent and the Company. The Company will advise the Agent
promptly of the issuance by any state regulatory authority of
any stop order or other order suspending the registrations or
exemptions therefrom of the Prospectus or of the institution
of any proceedings for that purpose, will use its best efforts
to prevent the issuance of any stop order or other such order,
and should a stop order or other such order be issued, to
obtain as soon as possible the lifting thereof.
(b) To furnish the Agent with such numbers of printed copies of
the Prospectus, with all amendments, supplements and exhibits
thereto, together with subscription materials, as the Agent
may reasonable request, and similarly, to furnish the Agent
and others designated by the Agent with as many copies of
additional sales literature or other materials approved by the
Company for use in connection with the Offering as the Agent
may reasonably request.
(c) Promptly to furnish such information and execute and file such
documents as may be necessary for the Company to offer and
sell the Shares in full compliance with applicable state and
federal statutes, regulations and policy statements.
(d) To advise the Agent promptly if any event known to the Company
shall have occurred as a result of which the Prospectus in its
then current form (including any amendments or supplements
thereto) would include an untrue statement of a material fact
or omit to state any material fact necessary in order to make
the statements therein, in light of the circumstances under
which they were made, not misleading.
(e) To utilize or furnish no sales literature in connection with
the Offering, other than the Prospectus, unless such other
sales literature has been approved by the SEC and the NASD, if
necessary, and furnished to the Agent at least ten (10) days
prior to its first use and the Agent has failed to object to
the contents of, or the proposed use of, such other sales
literature.
6. Conditions of the Agent's Obligations. The Agent's obligation to effect
the transactions contemplated by this Agreement shall be subject to the
continuing accuracy throughout the Offering Period of the
representations, warranties and agreements of the Company, the
performance by the Company of all of its obligations under this
Agreement, and the following further terms and conditions:
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(a) The Agent shall have received on any Closing Date hereunder
the opinion of Xxxxxx Xxxxxxx Xxxxx & Xxxxxxxxxxx LLP, counsel
for the Company, dated as of such Closing Date. Such opinion
may be given subject to the January 1, 1992 edition of the
Interpretive Standards applicable to Legal Opinions to Third
Parties in Corporate Transactions adopted by the Legal Opinion
Committee of the Corporate and Banking Law Section of the
State Bar of Georgia (the "Interpretive Standards"), and shall
be substantially to the effect that:
(i) the Company is a corporation duly organized, validly
existing and in good standing, under the laws of the
State of Georgia.
(ii) the Shares to be sold by the Company have been duly
authorized and will be, upon issuance and delivery
against payment therefor in accordance with the terms
of this Agreement, validly issued, fully paid and
non-assessable and will not be subject to any
preemptive or other rights to subscribe for or purchase
Shares pursuant to the organizational documents of the
Company or, to the best of such counsel's knowledge,
otherwise.
(iii) the Company's authorized shares consist of 10,000,000
shares of common stock, $.01 par value, of which ten
shares are outstanding and 10,000,000 shares of
preferred stock, none of which are outstanding. The
outstanding shares of the Company's stock have been
duly authorized and validly issued, were not issued in
violation of any statutory preemptive rights of
shareholders, and are fully paid and nonassessable.
Except as described in the Registration Statement,
there are no options, subscriptions, warrants, calls,
rights or commitments obligating the Company to issue
equity securities or acquire its equity securities.
(iv) the amounts, terms and designations of the capital
stock of the Company conform as to legal matters in all
material respects to the description thereof contained
in the Registration Statement under the caption
"Description of Capital Stock".
(v) this Agreement has been duly authorized, executed and
delivered by the Company and, when so executed and
delivered, constitutes the legal, valid and binding
obligation of the Company, enforceable against the
Company.
(vi) the execution and delivery by Company of this Agreement
do not, and if Company were now to perform its
obligation under this Agreement such performance would
not, result in any: (1) violation of Company's articles
or incorporation or bylaws; (2) violation of any
existing federal or state constitution, statute,
regulation, rule, order, or law to which Company or its
assets are subject; (3) breach of or default under any
Material Agreements; (4) creation or imposition of a
contractual lien or security interest in, on or against
its assets under any Material Agreements; or (5)
violation of any judicial or administrative decree,
writ, judgment or order to which, to our knowledge,
Company or its assets are subject.
(vii) to the knowledge of such counsel, the Company has all
necessary consents, authorizations, approvals, orders,
certificates and permits of and from, and has made all
declarations and filings with, all federal, state,
local and other governmental authorities, all
self-regulatory organizations, all courts and other
tribunals, to own, lease, license and use its
properties and assets and to conduct its business in
the manner described in the Registration Statement,
except to the extent that the failure to obtain or file
would not have a material adverse effect on the
Company.
(viii) to the knowledge of such counsel, no authorization,
consent, approval of or qualification with any federal
or state governmental authority is required for the
execution, delivery or performance by the Company of
this Agreement, except such as have been previously
made or obtained, in connection with the distribution
of the Shares by the Agent, and except those which, if
not made or obtained, will not, individually or in the
aggregate, have a material adverse effect on the
Company.
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(ix) nothing has come to the attention of such counsel to
cause such counsel to believe that (except for
financial statements, projections, schedules and other
financial and statistical information included or
incorporated by reference in the Registration Statement
as to which such counsel need not express any opinion)
the Registration Statement contained any untrue
statement of a material fact or omitted to state a
material fact required to be stated therein or
necessary to make the statements therein, in light of
the circumstances under which they were made, not
misleading, or that the Registration Statement as of
the Closing Date, contained any untrue statement of a
material fact or omitted to state a material fact
necessary in order to make the statements therein, in
light of the circumstances under which they were made,
not misleading.
(x) to such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened to which
the Company is a party or to which any of the
properties of the Company is subject that are not
fairly summarized in all material respects in the
Registration Statement.
(xi) to such counsel's knowledge, after due inquiry, all
contracts, indentures, mortgages, loan agreements,
leases or other documents to which the Company is a
party or to which its business or properties are
subject are fairly summarized in all material respects
in the Registration Statement; and
(xii) after due inquiry, such counsel does not know of any
pending or threatened proceeding relating to the
revocation or modification of any consent,
authorization, approval, order, certificate or permit
necessary to the conduct of the business of the
Company.
As to questions of fact material to such opinion, counsel may
rely on (without independent verification of the accuracy or
completeness thereof), the representations and warranties of
the Company contained in this Agreement as well as the
Material Agreements. The term "Material Agreement", for
purposes of such opinion, shall mean each of the agreements
which has been filed with the Securities and Exchange
Commission as an exhibit (including any document which in lieu
of being filed as an exhibit, is incorporate by reference or
which the Company agrees or has agreed to provide to the
Securities and Exchange Commission upon request) to the
Company's most recently-filed Annual Report on Form 10-KSB or
any subsequently filed report on Form 10-QSB of Form 8-K,
pursuant to the requirements of Item 601(b)(10) of SEC
Regulation X-X, 00 XXX 228.601(b)(10), as amended.
(b) On the Closing Date of any Closing hereunder, the Agent shall
have received from the President of the Company a letter dated
as of such Closing Date, in form and substance satisfactory to
the Agent in all respects, concerning the accuracy, to his
best knowledge and belief, of the financial information
included in the Prospectus.
(c) At the Closing Date of any Closing hereunder, there shall be
furnished to the Agent a certificate, dated as of such Closing
Date, signed by the President and Secretary of the Company
(collectively the "Officers") in form and substance
satisfactory to the Agent (the "Certificate") to the effect
that, to their best knowledge and belief:
(i) The Officers of the Company have carefully examined the
Prospectus, and as of the date of such Certificate, the
statements in the Prospectus are true and correct, and
the Prospectus does not misstate or omit to state a
material fact required to be stated therein or
necessary to make the statements therein not untrue or
misleading.
(ii) The Company has complied with all conditions precedent
to the performance of the Agent's obligations under
this Agreement.
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(iii) Each of the representations and warranties of the
Company contained in this Agreement was when originally
made and is as of the date of such Certificate true and
correct.
(iv) No order from any regulatory body has been issued and
no proceedings have been instituted, or to the
knowledge of such Officers contemplated, to prevent the
consummation of the Offering.
7. Indemnification.
(a) The Company will indemnify and hold harmless the Agent, its
officers, directors, counsel, representatives and persons who
control the Agent within the meaning of the Exchange Act, from
and against all losses, claims, damages and liabilities, joint
and several, to which any of the aforesaid parties, including
the Agent (collectively, the "Agent Parties"), may become
subject, under federal or state securities laws or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon:
(i) any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus, or in any Blue Sky
application or other document executed by the Company or on
its behalf for the purpose of qualifying any or all of the
Stock for sale under the securities laws of any jurisdiction,
or based upon written information furnished by the Company
under the securities laws thereof (any such application,
document, or information being hereinafter referred to as a
"Blue Sky Application") or (ii) the omission to state in the
Prospectus, or in any Blue Sky Application, a material fact
required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading. The Company will further
reimburse the Agent Parties, and each and every one of them,
for any legal or other expenses reasonably incurred by any one
or more of the Agent Parties in connection with investigating
and defending such loss, claim, damage, liability or action;
provided, however, that the Company will not be liable in any
case to the extent that the subject loss, claim, damage or
liability arises out of, or is based upon, an untrue statement
or alleged untrue statement or omission or alleged omission
made in reliance upon and unconformity with written
information furnished to the Company by the Agent specifically
for use in the preparation of the subject Prospectus, Blue Sky
Application, or any amendment or supplement thereto. The
indemnity provided for in this Section 7(a) will be in
addition to any liability which the Company may otherwise
have.
(b) The Agent will indemnify and hold harmless the Company, its
officers, directors, counsel, representatives and persons who
control the Company which the meaning of the Securities
Exchange Act of 1934, from and against all losses, claims,
damages and liabilities, joint and several, to which any of
the aforesaid parties, including the Company (collectively,
the "Company Parties"), may become subject, under federal or
state securities laws or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon: (i) any untrue statement of
material fact contained in the Prospects, any Blue Sky
Application, or any amendment or supplement thereto; (ii) the
omission to state in the Prospectus, any Blue Sky Application,
or any amendment or supplement to any of the foregoing, a
material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, in the
case of Sections (7)(b)(i) and (7)(b)(ii) to the extent, but
only to the extent, that such untrue statement or omission was
made in reliance upon or in conformity with written
information furnished to the Company by the Agent specifically
for use with reference to the Agent in preparation of the
Prospectus, any Blue Sky Application, or any supplement or
amendment thereto; or (iii) arising out of any
misrepresentation by the Agent in this Agreement or any breach
of warranty by the Agent with respect to this Agreement. The
Agent will further reimburse the Company Parties for legal or
other expenses reasonably incurred by the Company Parties in
connection with investigating or defending any loss, claim,
damage, liability or action under this Section (7)(b). The
indemnification provided for in this Section 7(b) shall be in
addition to any liability which the Agent may otherwise have.
(c) Promptly after receipt by an indemnified party under Section
(7)(a) or (7)(b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under
such Section, notify the indemnifying party in writing of the
commencement of the action; but the omission so to notify the
indemnified part shall not relieve
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it from any liability which it may have to an indemnified
party otherwise and under such Section. In any case any such
action shall be brought against any indemnified person, then
it shall notify the indemnifying party of the commencement
thereof, the indemnifying party shall be entitled to
participate therein, and, to the extent it shall wish, jointly
with any other indemnifying party similarly notified, the
indemnifying party may assume the defense thereof, with
counsel satisfactory to such indemnified party (who may also
be counsel to the indemnifying party only if the
representation of both parties does not constitute a conflict)
and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such
indemnified party under such Section for any legal expenses of
other counsel or any other expenses, in each case subsequently
incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation.
8. Survival Clause. The respective indemnities, agreements (including,
without limitation, the agreement set forth in Section 7 hereof),
representations, warranties and other statements of the Company and the
Agent as set forth in this Agreement, shall remain in full force and
effect, regardless of any investigation (or any statement as to the
results thereof) made by or behalf of the Agent, any officer or
director of the Agent, or counsel therefor, or the Company or any
officer or director of the Company, or counsel therefor, and shall
survive any termination of this Agreement and the receipt of any
payment for the Shares.
9. Notices. All notices under this Agreement shall be in writing and if
sent to the Agent shall be mailed, delivered or telecopied to the Agent
at the address first provided above, and if sent to the Company shall
be mailed or delivered to the Company at its present headquarters
address, 00 Xxxxx Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxx
00000, Attention: President or to such other address as may be
delivered to the Agent from time to time. Any notice shall be deemed to
have given when it is received by the party to whom it is addressed.
10. Governing Law. Except to the extent governed by preemptive federal law,
this Agreement shall be governed by and construed in accordance with
the substantive laws of the State of Georgia.
11. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
as of the day and year first above written.
UNITY HOLDINGS, INC.
By: /s/ Xxxxxxx X. XxXxxxxxx
--------------------------
Xxxxxxx X. XxXxxxxxx
President and CEO
ACCEPTED AND AGREED TO this 6th day of February, 1998.
XXXXXXXXX XXXXXX & XXXXX
By: /s/ Xxxxxx Xxxxxxxxx
--------------------------
Title: President
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