BONDED MOTORS, INC.
AGREEMENT AMONG UNDERWRITERS
__________, 1998
XXX XXXXXX & COMPANY
COMMONWEALTH ASSOCIATES
As Representatives of the
Several Underwriters
c/o Xxx Xxxxxx & Company
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Ladies and Gentlemen:
We wish to confirm as follows the agreement among you, the undersigned, and
the other underwriters named in Schedule I to the Underwriting Agreement
attached hereto as Exhibit A (the "Underwriting Agreement"), as it is to be
executed (all such parties being herein called the "Underwriters") with respect
to the several purchases by the Underwriters, from Bonded Motors, Inc., a
California corporation (the "Company"), of Common Stock, no par value per share,
of the Company (the "Common Stock"), aggregating 2,000,000 shares (the "Firm
Shares"), pursuant to Section 3 of the Underwriting Agreement, and the grant by
the Company to the Underwriters of an option, solely for the purpose of covering
over-allotments in the sale of the Firm Shares and on the terms and conditions
set forth in the Underwriting Agreement, to purchase up to 300,000 additional
shares of Common Stock (those additional shares are referred to below in this
Agreement as the "Option Shares" and, together with the Firm Shares, are
collectively referred to below in this Agreement as the "Shares").
1. AUTHORITY TO ACT. We hereby authorize you, on our behalf, to enter
into the Underwriting Agreement with the Company substantially in the form
attached hereto as Exhibit A, with such changes thereto as you in your sole
discretion determine may be necessary or advisable. Without limiting the
generality of this authority, we understand that changes may be made in those
who are to be Underwriters and in the respective number of the Shares which they
agree to purchase, but that the number of the Shares to be purchased by us, as
set forth in Schedule I to the Underwriting Agreement, will not be changed
without our consent, except as provided in this Agreement or in the Underwriting
Agreement.
We authorize you, as Representatives of the several Underwriters, to
exercise all of the authority and discretion vested in the Underwriters and in
you by the provisions of the Underwriting Agreement (including the authority to
waive any conditions to the obligations of the Underwriters under the
Underwriting Agreement), to take all such actions as you believe desirable to
carry out the provisions of the Underwriting Agreement this Agreement and the
transactions contemplated thereby and hereby, and to take such other actions as
in your discretion are necessary or advisable to carry out the purchase,
carrying, sale and distribution of the Shares.
We authorize you to file with any governmental agency and/or the National
Association of Securities Dealers, Inc. (the "NASD") any reports required to be
filed by you in connection with the transactions contemplated by this Agreement
or the Underwriting Agreement. We will furnish any information in our
possession needed for such reports.
2. COMMENCEMENT OF PUBLIC OFFERING. A public offering of the Shares is to
be made, as provided herein, as soon after the Registration Statement relating
thereto becomes effective as in your judgment is advisable. The Shares shall
initially be offered to the public at the public offering price thereof set
forth on the cover page of the Prospectus referred to in the Underwriting
Agreement. As used herein, the terms "Registration Statement," "Prospectus" and
"Preliminary Prospectus" have the meanings given to them in the Underwriting
Agreement.
You will advise us by telegraph, telecopy or telephone when the Shares are
released for offering. After notice from you that the Shares are released for
public sale, we will commence to offer to the public in conformity with the
provisions and terms of the offering set forth in the Prospectus those of our
Shares that you advise us may be retained by us for direct sale. We authorize
you, after the initial public offering, to vary the offering price, in your sole
discretion, by reason of changes in general market conditions or otherwise. The
offering price at any time in effect is herein called the "Offering Price."
3. OFFERING AND SALE OF THE SHARES. We authorize you to reserve for
offering and sale, and on our behalf to sell, to institutions or other retail
purchasers ("Retail Sales") and to dealers selected by you ("Selected Dealers"),
among whom we may be included, all or any part of the Shares as you determine.
Such sales, if any, will be made (a) in the case of Retail Sales, at the
Offering Price and (b) in the case of sales to Selected Dealers, at the Offering
Price less such concession as you from time to time determine, all as set forth
in the Prospectus.
You agree to notify us promptly as to the number of the Shares which we
will retain for direct sale. Prior to the termination of this Agreement, you
may reserve for offering and sale, as provided above, any of the Shares
remaining unsold theretofore retained by us, and we may, with your consent,
retain any of the Shares remaining unsold theretofore reserved by you. Upon the
termination of this Agreement you will, or prior thereto at your discretion you
may, deliver to us any of the Shares purchased by us and then reserved for sale
in Retail Sales or to Selected Dealers but not so sold.
You, and with your prior consent, any of the several Underwriters, may make
purchases or sales of any of the Shares (a) from or to any of the other
Underwriters, at the Offering Price less all or any part of the underwriting
commission, and (b) from or to any of the Selected Dealers, at the Offering
Price less all or any part of the concession to Selected Dealers. You may in
your discretion sell to another Underwriter any of the Shares so reserved for
our account if you determine that such sales are advisable for state securities
or blue sky purposes. Any transfer tax on any such sales shall be charged to
the accounts of the several Underwriters in proportion to their respective
underwriting obligations.
We authorize you to determine the form and manner of any communications or
agreements with Selected Dealers. If there are any such agreements with
Selected Dealers, you are authorized to act as managers thereunder, and we
agree, in such event, to be governed by the terms and conditions of such
agreements to the extent we act as a Selected Dealer. The form of Selected
Dealer Agreement attached hereto as Exhibit B is satisfactory to us. If there
shall not be any written agreements with Selected Dealers, we agree to be
governed by the terms and conditions of Exhibit B to the extent we act as a
Selected Dealer.
It is understood that any Selected Dealer to whom any offer may be made as
provided above will be a dealer actually engaging in the investment banking or
securities business and be either (a) a member of the NASD which agrees to
comply with the provisions of Rule 2740 of the Rules of Fair Practice of the
NASD (the "Rules") or (b) a foreign dealer or institution ineligible for
membership in the NASD which agrees (i) not to resell the Shares (A) to
purchasers in, or to persons who are nationals of, the United States of America,
its territories or its possessions or (B) when there is a public demand for the
Shares, to persons specified as those
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to whom members of the NASD participating in a distribution may not sell and
(ii) to comply with the NASD's interpretations with respect to free-riding
and withholding and to comply, as though such foreign dealer or institution
were a member of the NASD, with the provisions of Rules 2420, 2730 and 2740,
to the extent applicable to foreign non-member brokers or dealers, and 2750
of the Rules. We may allow, and the Selected Dealers, if any, may reallow
such discount or discounts as you may determine on sales of any of the Shares
to any eligible broker or dealer, all subject to the Rules.
We authorize you to determine the form and manner of any public
advertisement for the Shares, which advertisement shall include each of our
names as Underwriters.
4. REPURCHASES IN THE OPEN MARKET. Any Shares sold by us (otherwise than
through you) which, prior to the termination of this Agreement or such earlier
date as you determine, are contracted for or purchased in the open market by you
on behalf of us will be repurchased by us on demand at a price equal to the cost
of such purchase plus commissions and taxes on redelivery. In lieu of delivery
of such Shares to us, you may (a) sell such Shares in any manner for our account
and charge us with the amount of any loss or expense or credit us with the
amount of any profit, less any expense, resulting from such sale or (b) charge
our account with an amount not in excess of the concession to Selected Dealers
for such Shares.
5. DELIVERY AND PAYMENT FOR THE SHARES. We agree to deliver to you before
6:30 a.m., San Francisco time, on the Closing Date referred to in the
Underwriting Agreement, and on any later date on which the Option Shares are to
be purchased, at the office of Depository Trust Company, New York, New York or
at such other place as you designate, a certified or official bank check in next
day funds payable to the order of Xxx Xxxxxx & Company, in an amount equal to
the aggregate initial Offering Price of the Shares to be purchased by us from
the Company on such date, less the aggregate concession to Selected Dealers for
such Shares. We authorize you to deliver such funds, less that portion of the
non-accountable expense allowance provided for in Section 6(a)(ii) of the
Underwriting Agreement allocable to the Shares to be purchased by us, against
delivery to you for our account of such Shares. You are authorized to accept
delivery of the Shares, to give a receipt therefor and to make deliveries for
our account of such Shares, if any, as are reserved for sale in Retail Sales or
to Selected Dealers. You may in your discretion cause some or all of our
reserved Shares to be delivered to you registered in your name or in such other
name as you designate, but such registration will be for administrative
convenience only and will not affect our title to such reserved Shares or the
severalty of the obligations of the Underwriters to the Company. You agree to
cause to be delivered to us promptly any Shares which have not been sold for our
account or reserved for sale.
If we fail (whether or not such failure constitutes a default hereunder) to
deliver to you, or you fail to receive, our check or checks for the Shares that
we have agreed to purchase, at the time or times and in the manner provided in
this Section 5, either or both of you, in your individual capacities and not on
behalf of the Underwriters, are authorized (but shall not be obligated) to make
payment to the Company for such Shares for our account, but any such payment by
you shall not relieve us of any of our obligations under the Underwriting
Agreement or under this Agreement, and we agree to repay you on demand the
amount so advanced for our account, together with interest at current interest
rates (but not in excess of the maximum amount permitted by applicable law).
Upon receipt by you of payment for the Shares sold by or through you for
our account, you will remit to us promptly an amount equal to the purchase price
paid by us to the Company for such Shares and credit or debit our account on
your books with the difference between the selling price and such purchase
price. In case any Shares reserved for sale in Retail Sales or to Selected
Dealers are not purchased and paid for in due course, we agree (a) to accept
delivery when tendered by you of any Shares so reserved for our account and not
so purchased and paid
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for and (b) in case we shall have received payment from you in respect of any
such Shares, to reimburse you on demand for the full amount which you shall
have paid us in respect of such Shares.
6. COMPENSATION TO THE REPRESENTATIVE. As compensation for your services
in connection with the purchase of the Shares and the management of the offering
thereof, we agree to pay you, and you may charge our account on your books with,
$ for each of the Firm Shares which we agree to purchase pursuant to
Section 3 of the Underwriting Agreement and, if the notice referred to in
Section 3(b) of the Underwriting Agreement shall be given, a like amount for
each of the Option Shares which we are obligated to purchase.
7. AUTHORITY TO BORROW. We authorize you to advance your own funds,
charging current interest rates (but not in excess of the maximum amount
permitted by applicable law), or to arrange loans for our account for the
purpose of carrying out the purchase and sale of the Shares, and in connection
therewith to pledge as security therefor all or any part of the Shares purchased
hereunder for our account. Any lending bank is hereby authorized to accept your
instructions on behalf of the Underwriters in all matters relating to such
loans.
8. ALLOCATION OF EXPENSES. We authorize you to charge our account with
and we agree to pay (a) all transfer taxes on sales made by you for our account
and (b) our proportionate share (based upon our underwriting obligation) of all
other expenses (i) incurred by you in finding or developing this public offering
and (ii) arising in connection with the purchase, carrying and distribution of
the Shares or other shares of the Common Stock or under the terms of the
Underwriting Agreement or this Agreement. Your determination of such expenses
and your allocation thereof shall be final and conclusive. Funds for our
account at any time in your hands acting hereunder may be held in your general
funds without accountability for interest. As soon as practicable after the
termination of this Agreement, the net credit or debit balance in our account,
after proper charge and credit for all interim payments and receipts, must be
paid to or paid by us, provided that you in your discretion may reserve for
distribution to the several Underwriters such amounts as you deem advisable to
cover possible additional expenses. Neither any statement by you of any credit
or debit balance in our account nor any reservation from distribution to cover
possible additional expenses relating to the Shares will constitute any
representation by you as to the existence or nonexistence of possible expenses
or liabilities of, or charges against, the several Underwriters not fully
reflected in such credit or debit balance, for which we will remain responsible
notwithstanding any such statement, reservation or any payment. If one or more
Underwriters default in the payment of any amount required to be paid by this
paragraph, each nondefaulting Underwriter agrees to pay, on request, its
proportionate share (based upon its underwriting obligations and without regard
to the underwriting obligations of such defaulting Underwriter or Underwriters)
of such amount.
9. INDEMNIFICATION AND CONTRIBUTION. Each of the several Underwriters
agrees to indemnify and hold harmless each other Underwriter and each person
(including each officer or partner thereof) who controls any such other
Underwriter within the meaning of Section 15 of the Securities Act of 1933, as
amended (the "Securities Act"), to the extent and upon the terms that such
Underwriter will agree to indemnify, hold harmless and reimburse the Company as
set forth in Section 9 of the Underwriting Agreement. The foregoing will be in
addition to, and will not supersede, any other indemnification to which you or
any other Underwriter or any controlling person is entitled by virtue of this
Agreement, by operation of law or otherwise.
If any claim or claims are asserted against you or any investigation,
inquiry or other proceeding is brought against you, at any time, as agent of the
several Underwriters, or otherwise involving the Underwriters generally, or
relating to any Preliminary Prospectus, the Prospectus or the Registration
Statement or any actual or alleged misstatements or omissions in any of them, or
the public offering of the Shares or the selling or any advertising material
used
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therewith, or any of the transactions contemplated by this Agreement, the
undersigned authorizes you to make such investigation, to retain such counsel
and to take such other action as you deem necessary or desirable under the
circumstances, including settlement of any such claim, investigation, inquiry
or proceeding, if such course of action is recommended by counsel retained by
you. The undersigned agrees to pay to you, upon request, its proportionate
share (based on its final total obligation to purchase the Shares pursuant to
the Underwriting Agreement) of all expenses incurred by you (including, but
not limited to, the fees and disbursements and costs/charges of counsel
retained by you) in investigating and defending against such claim or
investigation, inquiry or other proceeding and the undersigned's
proportionate share of any liability incurred by you in respect of such claim
or claims, whether such liability shall be the result of a judgment against
you or as a result of any such settlement. In addition, if one or more
Underwriters default in the payment of any amount required to be paid by this
paragraph, each nondefaulting Underwriter agrees to pay, on request, its
proportionate share (based upon its underwriting obligations and without
regard to the underwriting obligations of such defaulting Underwriter or
Underwriters) of such amount.
The indemnification, contribution and reimbursement agreement of each
Underwriter contained in this Section 9 shall remain operative and in full force
and effect regardless of (i) any termination of this Agreement or (ii) any
investigation made by or on behalf of any Underwriter or controlling person.
Any successor or any Underwriter or any Underwriter acting as such by
substitution in accordance with the Underwriting Agreement shall be entitled to
the benefits contained in this Section 9. In determining amounts payable
pursuant to this Section 9, any loss, claim, damage, liability or expense
incurred by any person controlling any Underwriter within the meaning of
Section 15 of the Securities Act which has been incurred by reason of such
control relationship shall be deemed to have been incurred by such Underwriter.
10. TRADING AND STABILIZATION. We authorize you (a) until termination of
this Agreement, to make purchases and sales of the Common Stock, in the open
market or otherwise, on a when-issued basis or otherwise, for long or short
account, and on such terms and at such price, all as you in your sole discretion
deem desirable, (b) in arranging for sales of the Shares to Selected Dealers, to
over-allot and (c) either before or after the termination of this Agreement, to
cover any short position incurred pursuant to this Section 10; subject, however,
to the applicable rules and regulations of the Securities and Exchange
Commission under the Securities Exchange Act of 1934, as amended (the "Exchange
Act"). Such purchases and sales and over-allotments shall be made for our
account as nearly as practicable in proportion to our underwriting commitment;
PROVIDED that our net position, in the case of short account computed on the
assumption that all of the Option Shares are acquired, resulting from such
purchases and sales and over-allotments, shall not at any time exceed, either
for long or short account, 15% of the number of the Firm Shares which we agree
to purchase from the Company pursuant to Section 2 of the Underwriting
Agreement. Notwithstanding the foregoing limitation, we agree to assume our
proportionate share (based upon our underwriting obligations and without regard
to the underwriting obligations of any defaulting Underwriter) of the liability
of any Underwriter in default with respect to its obligations under this
Section 10. We agree, either before or after the termination of this Agreement,
to pay you, on demand, the cost of any such Common Stock so purchased for our
account (including, for this purpose, any amount which may be due pursuant to
the preceding sentence) and to deliver to you, on demand, any Shares sold or
over-allotted for our account (including, for this purpose, pursuant to the
preceding sentence) pursuant to the authority conferred by this Section 10. In
the event of our default in respect of our obligations under this Section 10,
you may assume our share of the underwriting obligation without relieving us of
our liability hereunder. We understand that the existence of this provision is
no assurance that the price of the Common Stock will be stabilized or that
stabilizing, if commenced, will not be discontinued at any time.
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If you engage in any stabilizing transactions on behalf of us, you shall
promptly notify us of that fact and maintain the records required by Rule 17a-2
of the General Rules and Regulations under the Exchange Act. We agree to
promptly provide you with the information required by Rule 17a-2 with respect to
our own transactions which are subject thereto.
We agree to advise you from time to time, upon request, prior to the
termination of this Agreement, of the number of the Shares purchased by us under
the Underwriting Agreement not reserved and remaining unsold at the time of such
request and, if in your opinion, any of such Shares are needed to make
deliveries of the Shares sold or over-allotted for the account of one or more of
the several Underwriters, we will forthwith upon your request grant to you, for
the account or accounts of such Underwriter or Underwriters, the right,
exercisable promptly after receipt of notice from us that such right has been
granted, to purchase, at the Offering Price less the concession to Selected
Dealers or such part thereof as you shall determine, such number of the Shares
owned by us as are specified in your request.
11. OPEN MARKET TRANSACTIONS. We represent to you and agree that in
connection with the offering of the Shares we have conformed and will conform
with the provisions of Regulation M under the Exchange Act, including the
provisions of such rules relating to trading by underwriters. We further
represent and agree not to effect, or attempt to induce others to effect,
directly or indirectly, any transactions in or relating to put or call options
on any securities of the Company or to engage in any market-making activity,
except to the extent permitted by Regulation M under the Exchange Act as
interpreted by the Commission.
12. BLUE SKY. Prior to the public offering by the Underwriters, you will
inform us as to the jurisdictions under the respective securities or blue sky
laws of which it is believed that sale of the Shares have been qualified or
registered for sale or are exempt from such qualification or registration, but
you do not assume any responsibility or obligation as to the accuracy of any
such information or as to the right of any Underwriter or dealer to sell Shares
in any jurisdiction.
13. EFFECT OF CANCELLATION OR TERMINATION OF UNDERWRITING AGREEMENT. If
the Underwriting Agreement is canceled or terminated in accordance with the
terms thereof, our obligations hereunder shall nevertheless continue with
respect to payment by us of our proportionate share of all expenses and
liabilities.
14. DEFAULT BY UNDERWRITERS. Default by one or more Underwriters in
respect of their obligations under the Underwriting Agreement will not release
us from any of our obligations or in any way affect the liability of any
defaulting Underwriter to the other Underwriters for damages resulting from the
default.
15. TERMINATION OF AGREEMENT. Unless earlier terminated by you, this
Agreement will terminate 45 full business days after the date hereof, but may be
extended by you for an additional period or periods not exceeding 45 full
business days in the aggregate. No such termination shall affect our
obligations under Sections 4, 5, 6, 7, 8, 9, 10, 13 and 14 of this Agreement.
16. GENERAL. In taking action under this Agreement, you will act only as
agent of the several Underwriters. As such, your authority will include the
taking of such action as you deem advisable in respect of all matters pertaining
to any and all offers and sales of the Shares, including the right to make any
modifications which you consider necessary or desirable in the arrangements with
Selected Dealers or others. You will not be under any liability for or in
respect of the value of the Shares, the validity or the form thereof or the
Registration Statement, any Preliminary Prospectus, the Prospectus, the
Underwriting Agreement or any other instrument executed by the Company, or by
others, the delivery of certificates representing the Shares, the performance by
the Company, or by others, of any agreement on its or their part, or
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any judgment referred to in the Underwriting Agreement as to the advisability
or practicability of proceeding with the offering after the occurrence of
specified events or the exercise or failure to exercise the option granted
pursuant to Section 3(d) of the Underwriting Agreement. You will not, in
such capacity or otherwise, be liable under any of the provisions hereof or
for any matters connected herewith, except for want of good faith and except
for any liability specifically assumed under this Agreement or under the
Securities Act. Any obligation that you have not expressly assumed herein
will not be implied by this Agreement. In representing the Underwriters
hereunder, you will represent each of them respectively. Nothing contained
in this Agreement will constitute the several Underwriters partners with you
or with each other or render any Underwriter liable for the commitments of
any other Underwriter, except as specifically provided for herein and by the
Underwriting Agreement. The commitments and liabilities of each of us are
several in accordance with our respective underwriting obligations and not
joint.
If for Federal income tax purposes the Underwriters should be deemed to
constitute a partnership, then each Underwriter elects to be excluded from the
application of Subchapter K, Chapter 1, Subtitle A, of the Internal Revenue Code
of 1986, as amended, and agrees not to take any position inconsistent with such
election. You are authorized, in your discretion, to execute and file on behalf
of the Underwriters such evidence of such election as may be required by the
Internal Revenue Service.
17. ACKNOWLEDGMENT OF REGISTRATION STATEMENT AND DELIVERY OF PROSPECTUS.
We confirm that (i) we have examined the Registration Statement (including all
amendments, if any, thereto) relating to the Shares as previously filed with the
Securities and Exchange Commission, (ii) we are familiar with the final form of
the Prospectus proposed to be filed, (iii) we are willing to accept the
responsibilities of an Underwriter thereunder and (iv) we are willing to proceed
as contemplated therein and in the Underwriting Agreement. We further confirm
that the statements made under the heading "Underwriting" in such proposed final
form of the Prospectus, insofar as they relate to us, are correct, and we
authorize you so to represent and warrant to the Company on our behalf. We
understand that the aforementioned documents are subject to further change and
that we will be supplied with copies of any amendment or amendments to the
Registration Statement and of any amended or supplemental Prospectus promptly if
and when received by you, but the making of such changes, amendments or
supplements will not release us or affect our obligations hereunder or under the
Underwriting Agreement. We agree, if you so request, to furnish a copy of any
revised or supplemented Preliminary Prospectus to each person to whom we have
delivered a copy of any previous Preliminary Prospectus. We further represent
that we have delivered all preliminary prospectuses and agree that we will
deliver all final prospectuses required for compliance with the provisions of
Rule 15c2-8 of the General Rules and Regulations under the Exchange Act.
18. NASD REPRESENTATION. We hereby confirm that we are a dealer actually
engaging in the investment banking or securities business and either (a) we are
a member of the NASD and agree to comply with the provisions of Rule 2740 of the
Rules or (b) we are a foreign dealer or institution ineligible for membership in
the NASD and agree (i) not to sell any of the Shares (A) to purchasers in, or to
persons who are nationals of, the United States of America, its territories or
its possessions, except in Retail Sales and to Selected Dealers pursuant to
Section 3 hereof or (B) when there is a public demand for the Shares, to persons
specified as those to whom members of the NASD participating in a distribution
may not sell, and (ii) to comply with the NASD's interpretations with respect to
free-riding and withholding and to comply, as though we were a member of the
NASD, with Rules 2420, 2730 and 2740 and, to the extent applicable to foreign
non-member brokers or dealers, and Rule 2750 of the Rules.
19. CAPITAL REQUIREMENTS. We confirm that the ratio of our aggregate
indebtedness to our net capital is such that we may, in accordance with and
pursuant to Rule 15c3-l of the
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General Rules and Regulations under the Exchange Act, obligate ourselves to
purchase, and purchase, the number of the Shares which we agree to purchase
under the Underwriting Agreement.
20. GENERAL. (a) Any notice hereunder from us to you will be deemed to
have been duly given if sent by mail, telecopier or telegraph to you at 000
Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (telephone:
(000) 000-0000 and telecopier: (000) 000-0000) and to us at our address as set
forth in the Underwriters' Questionnaire furnished to us by you.
(b) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS, AND NOT THE LAWS PERTAINING TO CHOICE OR CONFLICT OF LAWS, OF
THE STATE OF NEW YORK.
(c) This Agreement may be signed by the Underwriters in various
counterparts which together constitute one and the same agreement among all the
Underwriters and will become effective at such time as all the Underwriters
shall have signed such counterparts and you shall have confirmed all such
counterparts.
Please confirm that the foregoing correctly states the understanding among
us by signing and returning to us the enclosed copies of this letter.
Very truly yours,
Underwriters (Named in Schedule I to the
Underwriting Agreement attached hereto as
Exhibit A)
By
-------------------------------------
(Attorney-in-fact)
The foregoing Agreement is hereby confirmed
and accepted as of the date first above written.
XXX XXXXXX & COMPANY
COMMONWEALTH ASSOCIATES
By: XXX XXXXXX & COMPANY
By
--------------------
Authorized Signatory
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