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Exhibit 1.3
MIKE'S ORIGINAL, INC.
675,000 Shares of Common Stock and
875,000 Redeemable Common Stock Purchase Warrants
SELLING AGREEMENT
__________________, 1997
Dear Sirs:
The undersigned, IAR Securities Corp., as representative of the
underwriters (the "Representative"), has agreed, subject to the terms and
conditions of the Underwriting Agreement dated __________, 1997 (the
"Underwriting Agreement"), to purchase from Mike's Original, Inc., a Delaware
corporation (the "Company"), an aggregate of 675,000 shares of Common Stock, par
value $.001 per share, of the Company (the "Common Stock") and 875,000
Redeemable Common Stock Purchase Warrants (the "Warrants") to purchase one share
of Common Stock, at the purchase price set forth on the cover of the Prospectus
(as hereinafter defined), and has obtained from the Company an option to
purchase at such price an additional 101,250 shares of Common Stock and an
additional 131,250 Redeemable Common Stock Class A Purchase Warrants (the
"Additional Securities"), identical to the Common Stock and Warrants, to cover
over-allotments. The 675,000 Shares of Common Stock and 875,000 Warrants are
hereinafter referred to as the "Firm Securities." The Firm Securities and
Additional Securities are hereinafter collectively called the "Securities". The
Firm Securities, Additional Securities, Common Stock and Warrants are more
particularly described in the enclosed prospectus (the "Prospectus"), additional
copies of which will be supplied in reasonable quantities upon request.
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We are offering a part of the Securities for sale to selected dealers
(the "Selected Dealers"), among which we are pleased to include you, at the
public offering price or at such price less a concession in the amount set forth
in the Prospectus under "Underwriting", as provided herein. This offering is
made subject to delivery of the Securities and its acceptance by us, to the
approval of all legal matters by counsel, and to the terms and conditions herein
set forth and may be made on the basis of the reservation of Securities or an
allotment against subscription.
We have advised you by telegram or telex of the method and terms of the
offering. Acceptances should be sent to IAR Securities Corp., 00 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxx Xxxxxxxxxx, President. We reserve the
right to reject any acceptance in whole or in part.
The Securities purchased by you hereunder are to be offered by you to
the public at the public offering price, except as herein otherwise provided.
We, as Representative, may buy Securities from, or sell Securities to,
any Selected Dealer, and any Selected Dealer may buy Securities from, or sell
Securities to, any other Selected Dealer at the public offering price or at such
price less all or any part of the concession, as provided herein. We, as
Representative, after the initial public offering may change the public offering
price, the concession, and the reallowance.
Securities purchased by you hereunder shall be paid for in full at the
public offering price or such price less the applicable concession, as we shall
advise, on such date as we shall determine, on one day's notice to you, by
certified or official bank check payable in New York Clearing House funds to the
order of IAR Securities Corp., 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 against
delivery of the Securities. If you are called upon to pay the public offering
price for the Securities purchased by you, the applicable concession will be
paid to you, less any amounts
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charged to your account as provided herein, after termination of this Agreement
as it applies to the offering of the Securities. Notwithstanding the preceding
two sentences, payment for and delivery of Securities purchased by you hereunder
will be made at our option either by physical delivery of certificates
representing the shares so purchased or through the facilities of The Depository
Trust Company if you are a member or, if you are not a member, settlement may be
made through a correspondent which is a member pursuant to instructions you may
send to us prior to such specified date.
We have been advised by the Company that a registration statement for
the Securities, filed under the Securities Act of 1933, as amended (the
"Securities Act"), has become effective. You agree (which agreement shall also
be for the benefit of the Company) that in selling Securities purchased pursuant
hereto you will comply with the applicable requirements of the Securities Act
and of the Securities Exchange Act of 1934, as amended, (the "Exchange Act"). No
person is authorized by the Company or the Representative to give any
information or to make any representations not contained in the Prospectus, in
connection with the sale of Securities. You are not authorized to act as agent
for the Company or the Representative in offering Securities to the public or
otherwise. Nothing contained herein shall constitute the Selected Dealers
partners with the Representative or with one another.
Upon your application to us, we will inform you as to the advice we
have received from counsel concerning the jurisdictions under the respective
"blue sky" or securities laws of which it is believed that the Securities have
been qualified or registered or is exempt for offer and sale, but we have not
assumed and will not assume any responsibility or obligation as to the accuracy
of such information or as to the right of any Selected Dealers to offer or sell
Securities in any jurisdiction.
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As Representative, we shall have full authority to take such action as
we may deem advisable in respect of all matters pertaining to the offering or
arising thereunder. We, acting as the Representative shall not be under any
obligation to you except for obligations expressly assumed by us in this
Agreement.
We are authorized to over-allot in arranging for sale of the Securities
to the Selected Dealers and to purchase and sell the Securities and shares of
Common Stock or Warrants for long or short account and we are also authorized to
stabilize or maintain the market prices of the Common Stock and the Warrants.
You agree, from time to time until the termination of this Agreement,
to report to us the number of Securities purchased by you pursuant to the
provisions hereof which then remain unsold and, on our request, you will resell
to us any such Securities remaining unsold at the purchase price thereof if, in
our opinion, such Securities are needed to make delivery against sales made to
others.
If prior to the termination of this Agreement as it applies to the
offering of the Securities (or prior to such earlier date as we have determined)
we purchase or contract to purchase in the open market or otherwise any
Securities or shares of Common Stock or Warrants underlying the Securities which
were purchased by you from us or from any other underwriter or dealer for
reoffering (including any Securities or shares of Common Stock or Warrants which
may have been issued on transfer or in exchange for such Securities or shares of
Common Stock or Warrants), and which Securities or shares of Common Stock or
Warrants were therefore not effectively placed for investment by you, you
authorize us either to charge your account with an amount equal to the
concession from the public offering price for which you purchased such
Securities, which shall be credited against the cost of such Securities, or to
require you to
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repurchase such Securities at a price equal to the total cost of such purchase,
including any commissions and transfer taxes on redelivery.
You agree that except with our consent and except as otherwise provided
herein, you will not, prior to termination of this Agreement or until we notify
you that you are released from this restriction, bid for, purchase, or sell,
directly or indirectly, any Securities or any shares of Common Stock or Warrants
(or, if requested by us by telex or otherwise, any other securities of the
Company) for your account or for the accounts of customers except as broker or
agent in the execution of unsolicited brokerage orders therefor.
As contemplated by Rule 15c2-8 under the Exchange Act, we agree to mail
a copy of the Prospectus to any person making a written request therefor during
the period referred to in Rule 15c2-8, such mailing to be made to the address
given in the request. You confirm that you have delivered all preliminary
prospectuses and revised preliminary prospectuses, if any, required to be
delivered under the provisions of Rule 15c2-8 and agree to deliver all final
prospectuses and amendments or supplements thereto required to be delivered
under Rule 15c2-8. We have heretofore delivered to you such preliminary
prospectuses as have been requested by you, receipt of which is hereby
acknowledged, and will deliver such copies of the Prospectus as will be
requested by you.
Selected Dealers will be governed by the conditions herein set forth
until this Agreement is terminated. This Agreement will terminate at the close
of business on the 45th full day after the date hereof, but may be extended by
us for an additional period or periods not exceeding 45 full days in the
aggregate. Whether or not extended, we may, however, terminate this agreement or
any provision hereof at any time. Notwithstanding the termination of this
Agreement, you shall be and shall remain liable for, and will pay on demand,
your proportionate amount of any loss,
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liability, claim, or damage or related expense which may be asserted against you
alone, or against you together with other dealers purchasing Securities upon the
terms hereof, or against us, based upon the claim that the Selected Dealers, or
any of them, constitute an association, unincorporated business, partnership, or
separate entity.
All communications from you shall be address to IAR Securities Corp.,
00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxxx Xxxxxxxxxx, President. Any
notice from us to you shall be deemed to have been fully authorized by us and to
have been duly given if mailed, telegraphed, or telexed to you at the address to
which this letter is mailed. This Agreement shall be construed in accordance
with the laws of the State of New York, without giving effect to conflict of
laws. Time is of the essence in this Agreement.
If you agree to purchase Securities in accordance with the terms
hereof, kindly confirm such agreement by completing and signing the form
provided for that purpose on the enclosed duplicate hereof and returning it to
us promptly.
Very truly yours,
IAR SECURITIES CORP.
By:
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Xxxxx Xxxxxxxxxx
President
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IAR Securities Corp.,
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
We hereby confirm our agreement to purchase shares of Common Stock, par
value $.001 per share, of Mike's Original, Inc. (the "Company") (the "Common
Stock") and warrants (the "Warrants") to purchase one share of Common Stock,
allotted to us subject to the terms and conditions of the foregoing Selling
Agreement and your telegram or telex to us referred to therein. We hereby
acknowledge receipt of the definitive Prospectus relating to the Common Stock
and Warrants, and we confirm that in purchasing Common Stock and Warrants we
have relied upon no statements whatsoever, written or oral, other than the
statements in the Prospectus. We represent that we are actually engaged in the
investment banking or securities business and that we are a member in good
standing of the NASD which agrees to comply with all applicable rules of the
NASD or, if we are not such a member, we are a foreign dealer or institution not
eligible for membership in the NASD (a) which agrees to make no offers or sales
within the United States, it territories, or its possessions or to persons who
are citizens thereof or residents therein, and, in making sales, to comply with
the NASD's interpretation with respect to free-Riding and Withholding and Rules
2730, 2740 and 2750 of the NASD Conduct Rules as if we were an NASD member and
Rule 2420 as it applies to a nonmember broker or dealer in a foreign country and
(b) which in connection with offers and sales of Common Stock and Warrants made
by us outside the United States (i) will either furnish to each person to whom
any such offer or sale is made a copy of the then current preliminary prospectus
or the Prospectus (as then amended or supplemented if the Company shall have
furnished amendments or supplements thereto), as the case may be, or inform such
person that such preliminary prospectus or the
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Prospectus will be available upon request and (ii) will furnish to each person
to whom any such offer or sale is made such prospectus, advertisement, or other
offering document containing information relating to the the Common Stock, the
Warrants or the Company as may be required under the law of the jurisdiction in
which such offer or sale is made. Any prospectus, advertisement, or other
offering document furnished by us to any person in accordance with clause
(b)(ii) of the preceding sentence and any such additional offering material as
we may furnish to any person (c) shall comply in all respects with the laws of
the jurisdiction in which it is so furnished, (d) shall be prepared and so
furnished at our sole risk and expense, and (e) shall not contain information
relating to the the Common Stock, the Warrants or the Company which is
inconsistent in any respect with the information contained in the then current
preliminary prospectus or in the Prospectus (as then amended or supplemented if
the Company shall have furnished any amendments or supplements thereto), as the
case may be. It is understood that no action has been taken to permit a public
offering in any jurisdiction other than the United States where action would be
required for such purpose.
If for federal income tax purposes the Selected Dealers, among
themselves or with the Representative, should be deemed to constitute a
partnership, then we elect to be excluded from the application of Subchapter K,
Chapter 1, Subtitle A of the Internal Revenue Code of 1986, as amended, and we
agree not to take any position inconsistent with such election. We authorize
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you, in your discretion, to execute and file on our behalf such evidence of such
election as may be required by the Internal Revenue Service.
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(Name of Selected Dealer)
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(Authorized Signature)
Dated: , 1997
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