Exhibit 1.2
GALLEON MERCHANT BANKING, INC.
0000 X.X. 00xx Xxx, #000
Xxxx Xxxxxxxxxx, Xxxxxxx 00000
June 10, 2002
BuyEnergy Corporation
0000 Xxxxxx Xxxxxxxxx, #000
Xxxxxx, Xxxxxxx 00000
Gentlemen:
Reference is made to the Underwriting Agreement dated April 23, 2002
between BuyEnergy Corporation ("BuyEnergy" or the "Issuer") and Galleon Merchant
Banking, Inc. ("Galleon") (the "Underwriting Agreement"). Unless otherwise
defined herein, all capitalized terms used herein have the meanings ascribed to
such terms in the Underwriting Agreement.
NASD Regulation, Inc. has requested that the Underwriting Agreement be
amended to indicate that (a) in the event BuyEnergy's offering of common stock
pursuant to the Underwriting Agreement is terminated, Galleon will be reimbursed
only for its actual accountable out-of-pocket expenses and (b) to eliminate
Galleon from receiving any cash or checks from subscribers.
In consideration of the foregoing, each of BuyEnergy and Galleon agree
as follows:
1. Section 7 of the Underwriting is hereby amended to read in its
entirety as follows:
"7. Escrow and Release of Proceeds. The Agent and the Issuer shall
direct that each subscriber for Stock through the Agent shall subscribe
for the Stock by (a) completing and executing a subscription agreement
in the form attached hereto as Exhibit B (the "Subscription Agreement")
and (b) delivering the completed and executed Subscription Agreement,
together with a check payable to Buyenergy Escrow Account in the amount
set forth on the signature page of the subscriber's Subscription
Agreement to Wachovia Bank, National Association, 000 Xxxxx Xxxxxx, 0xx
Xxxxx, Xxxxxxxxxxxx, Xxxxxxx 00000, Attention: Corporate Trust
Department. The Issuer shall instruct Wachovia Bank, National
Association (the "Escrow Agent") to (i) deliver each completed and
executed Subscription Agreement the Escrow Agent receives to the Issuer
by noon of the next business day after receipt by the Escrow Agent, (b)
deposit the subscriber's check in the Escrow Account and (c) upon
written notice from the Issuer to the Escrow Agent that the Issuer has
accepted a subscription, to transmit to the Agent within two business
days an amount equal to the Agent's compensation and reimbursement set
forth in Section 6 with respect to the Stock which is the subject of
the accepted subscription. If the Issuer rejects a subscription it
shall promptly notify the Escrow Agent and instruct the Escrow Agent to
return the entire amount of the subscription to the subscriber within
five business days.
2. Section 8 of the Underwriting Agreement is hereby amended to read in
its entirety as follows:
"8. Agent Expenses. The Agent shall be responsible for payment of all
of its travel, printing and other expenses, whether or not there is a
closing under the Offering. The Issuer shall reimburse the Agent for
the Agent's legal fees, Blue Sky expenses, disbursements and mailing
fees related to the Offering, provided, however, that if the Offering
is terminated, then the Issuer shall only reimburse the Agent for such
of the foregoing expenses which are out-of-pocket expenses and only
upon presentation to the Issuer of reasonable documentation of such
expenses."
3. Section 9 of the Underwriting Agreement is hereby amended to read in
its entirety as follows:
"9. Subscriptions. There is no total minimum number of shares to be
sold or a total minimum amount to be received prior to the use of the
proceeds other than an amount which is acceptable to the Issuer to
insure closing the transaction to merge with, acquire or be acquired by
a target company, or until the termination of the offering. The maximum
amount will be one hundred thirty-five thousand dollars ($135,000).
Funds will be disbursed in accordance with the Escrow Agreement between
the Issuer and the Escrow Agent.
4. Each of Galleon and Buyenergy represents to the other that all of
its representations contained in the Underwriting Agreement are true and correct
as of the date hereof.
This letter agreement shall be referred to as Amendment No.1 to the
Underwriting Agreement.
Please indicate your agreement with the foregoing by signing one copy
of this letter where indicated below and returning it to the undersigned.
Very truly yours,
GALLEON MERCHANT BANKING, INC.
By:/s/ Xxxxxxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxxx
President
AGREED TO:
BUYENERGY CORPORATION
By:/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
President
