UNDERWRITING AGREEMENT
, 1997
Royal Xxxxxx Securities, Corp.
0000 Xxxxxx Xx., Xxxxx 000X
Xxxx Xxxxx, Xxxxxxx 00000
Gentlemen:
Silver Star Foods, Inc. (the "Company"), a New York corporation,
proposes to issue and sell a maximum of 1,000,000 Shares of Common Stock
at $5.25 per Share ("Shares") and 2,000,000 Class A Warrants ("A
Warrrants") at $.25 per Warrant collectively, the Shares and A Warrant
shall be hereinafter referred to as the "Units"). The A Warrants may be
purchased separately and will be transferable separately upon issuance.
The Company hereby employs Royal Xxxxxx Securities, Corp. (the
"Underwriter") as its exclusive agent in connection with the proposed
sale on a "firm commitment" basis. The offering of the Shares and A
Warrants is further described in the Registration Statement filed or to
be filed on Form SB-2 with the United States Securities and Exchange
Commission (the "Commission"). In addition, solely for the purpose of
covering over-allotments, if any, the Company proposes to grant the
Underwriters the option to purchase up to an additional 150,000 Shares
and 300,000 A Warrants.
1. Representations and Warranties of the Company. In order to
induce the Underwriter to enter into this Agreement, the Company
represents and warrants as follows:
(a) The Company has filed or will file a Registration Statement on
Form SB-2 relating to the Units with the Commission pursuant to the
Securities Act of 1933 (the "Securities Act"). The Company has
furnished to the Underwriter and to its legal counsel two signed and ten
conformed copies of the Registration Statement together with all
amendments and exhibits. As used in this Agreement, the term
"Registration Statement" means the Registration Statement, including the
Prospectus, the exhibits and the financial statements, and all
amendments including any amendments after the effective date of the
Registration Statement. The term "Prospectus" means the prospectus filed
as a part of Part I of the Registration Statement, including all pre-
effective and post-effective amendments and supplements thereto.
(b) The Registration Statement and all other documents filed or to
be filed or filed after the date hereof with the Commission conform and
will conform with all of the requirements of the Securities Act in all
material respects. Neither the Registration Statement, the Prospectus
nor the other material filed or to be filed with the Commission contains
nor will contain any untrue statements of material fact nor are there or
will there be any omissions of material facts required to be stated
therein or that are necessary to make the statements therein not
misleading, except that this warranty does not apply to any statements
or omissions made in reliance upon and in conformity with information
furnished in writing to the Company by and with respect to you, or any
dealer through you, expressly for use in the Registration Statement or
Prospectus or any amendment or supplement thereto.
(c) The Company has obtained a CUSIP number for its Common Stock
and A Warrants and the Company has used its best efforts to qualify the
Units for offering in every state reasonably designated by the
Underwriter. The materials previously filed or filed after the date
hereof with any state do not and will not contain any untrue statements
of material fact nor are there or will there be any omissions of
material facts required to be stated therein or that are necessary to
make the statements therein not misleading.
(d) The authorized capital stock of the Company consists of
15,000,000 shares of Common Stock, par value $.0001 per share, and A
Warrants, of which 4,800,000 shares of Common Stock and no A Warrants
are outstanding as of the date hereof. Each outstanding share of Common
Stock is duly authorized, validly issued, fully paid, and nonassessable
without any personal liability attaching to the ownership thereof.
Except as set forth in the Registration Statement, there is no option,
or other right calling for the issuance of any instrument which by its
terms is convertible into, exercisable or exchangeable for, capital
stock of the Company.
(e) The Shares issuable upon the exercise of the Warrants (the
"Warrant Shares") have been duly authorized and when issued and
delivered in accordance with this Agreement and the Underwriter's
Warrants when issued and delivered upon exercise of the Underwriter's
Warrants, will all be validly issued, fully paid, and non-assessable,
without any personal liability attaching to the ownership thereof, and
will not be issued in violation of any preemptive rights of
stockholders, and the purchasers thereof will receive good title
thereof, free and clear of all liens, security interests, pledges,
charges, encumbrances, stockholders' agreements and voting trusts.
The Warrant Shares and the shares of Common Stock issuable upon
exercise of the Underwriter's Warrants are duly authorized and reserved
for issuance and, when issued and delivered in accordance with the
Warrant Agreement and the Warrants or the Underwriter's Warrants, as the
case may be, will be validly issued, fully paid and non-assessable and
will not be issued in violation of any preemptive rights of
stockholders, and the holders of the Warrants or the Underwriter's
Warrants, as the case may be, will receive good title to the securities
purchased by them, free and clear of all liens, security interests,
pledges, charges, encumbrances, stockholders' agreements and voting
trusts. The Common Stock underlying the Underwriter's Warrants conform
to all statements relating thereto contained in the Registration
Statement and the Prospectus.
(f) The Company has been legally incorporated and is now, and
always during the period of the offering will be, a validly existing
corporation under the laws of the State of New York, lawfully qualified
to conduct the business for which it was organized and which it proposes
to conduct. The Company will always during the period of the offering
be qualified to conduct business as a foreign corporation in each
jurisdiction where the nature of its business requires such
qualification.
(g) During the period of the offering of the Shares and A Warrants
and for one year from the date the Commission declares the Registration
Statement to be effective ("Effective Date"), the Company will not sell
any securities without the Underwriter's prior written consent, which
will not be unreasonably withheld.
(h) The Company has caused each of its officers and directors and
has used its best efforts to cause each of its other shareholders to
enter into an agreement with the Underwriter pursuant to the terms of
which each such person has agreed not to sell any shares owned directly
or indirectly by such person for a period of twelve (12) months from the
Effective Date of the Registration Statement without the Underwriter's
prior written consent, which consent will not be unreasonably withheld.
Prior to the Effective Date, the Company will obtain such agreements
from shareholders owning a minimum of 66 2/3% of the Company's
outstanding common stock.
(i) The Company has no subsidiaries nor contemplates acquiring
subsidiaries or engaging in mergers with or the acquisition of any
companies.
(j) The financial statements, together with related schedules and
notes, included in the Registration Statement and Prospectus present
fairly the financial condition of the Company and are reported upon by
independent public accountants according to generally accepted
accounting principles and as required by the rules and regulations of
the Commission.
(k) Except as disclosed in the Registration Statement, the
Prospectus and financial statements included therein, the Company does
not have any contingent liabilities, obligations, or claims nor has it
received threats of claims or regulatory action. Further, except as
disclosed in the Registration Statement and the Prospectus, subsequent
to the date information is given in the Registration Statement and
definitive Prospectus, and prior to the close of the offering: (a) there
shall not be any material adverse change in the management or condition,
financial or otherwise, of the Company or in its business taken as a
whole; (b) there shall not have been any material transaction entered
into by the Company other than transactions in the ordinary course of
business; (c) the Company shall not have incurred any material
obligations, contingent or otherwise, which are not disclosed in the
Registration Statement and the Prospectus; (d) there shall not have been
nor will there be any change in the capital or long term debt (except
current payments) of the Company; and (e) the Company has not and will
not have paid or declared any dividends or other distributions on its
common shares.
(l) The Company's securities, however characterized, are not
subject to preemptive rights.
(m) The Company will have the legal right and authority to enter
into this Underwriting Agreement upon its execution, to effect the
proposed sale of the Shares and A Warrants, to execute and issue the
Underwriting Warrants and to effect all other transactions contemplated
by this Agreement.
(n) The Company knows of no person who rendered any services in
connection with the introduction of the Company to the Underwriter. No
broker's or other finder's fees are due and payable by the Company and
none will be paid by it.
(o) The Company is eligible to use Form SB-2 for the offering of
the Shares and A Warrants.
(p) The Company and its affiliates are not currently offering any
securities nor has the Company or its affiliates offered or sold any
securities except as required to be described in the Registration
Statement.
(q) The Company will not file any amendment or supplement to the
Registration Statement, Prospectus, or exhibits if the Underwriter and
its counsel have not been previously furnished a copy, or if the
Underwriter or its counsel have objected in writing to the filing of the
amendment or supplement.
(r) The Company possesses adequate certificates or permits issued
by the appropriate federal, state and local regulatory authorities
necessary to conduct its business and to retain possession of its
properties. The Company has not received any notice of any proceeding
relating to the revocation or modification of any of these certificates
or permits.
(s) The Company has filed all tax returns required to be filed and
except as set forth in the Registration Statement, Prospectus and
financial statements included therein, is not in default in the payment
of any taxes which have become due pursuant to any law or any
assessment.
(t) The Company has marketable title to all properties including
intellectual properties described in the Registration Statement as owned
by it. Except as set forth in the Registration Statement, Prospectus
and the financial statements included therein, the properties are free
and clear of all liens, charges, encumbrances, or restrictions, however
characterized. All of the contracts, leases, subleases, patents,
copyrights, licenses and agreements, however characterized, under which
the Company holds its properties as described in the Registration
Statement are in full force and effect. Except as set forth in the
Registration Statement, Prospectus and the financial statements included
therein, the Company is not in default under any of the material terms
or provisions of any contracts, leases, subleases, patents, copyrights,
licenses or agreements under which the Company holds its properties.
There are no known claims against the Company concerning the Company's
rights under the leases, subleases, patents, copyrights, licenses and
agreements and concerning its right to continued possession of its
properties. Further, the Company is not in material default in the
performance of any obligation, agreement or condition contained in any
debenture, note or other evidence of indebtedness or any indenture or
loan agreement of the Company.
(u) All original documents and other information relating to the
Company's affairs has and will continue to be made available upon
request to the Underwriter and to its counsel at the Underwriter's
office or at the office of the Underwriter's counsel and copies of any
such documents will be furnished upon request to the Underwriter and to
its counsel. Included within the documents made available have been at
least the Articles of Incorporation and any Amendments, Minutes of all
of the meetings of the Incorporators, Directors and Shareholders, all
financial statements and copies of all contracts, leases, patents,
copyrights, licenses or agreements to which the Company is a party or in
which the Company has an interest.
(v) The Company has appointed as its
transfer agent. The Company will make arrangements to have available at
the office of the transfer agent sufficient quantities of the Company's
common stock certificates as may be needed for the quick and efficient
transfer of the Shares and A Warrants.
(w) The Company will use the proceeds from the sale of the Shares
and A Warrants as set forth in the Registration Statement and
Prospectus.
(x) There are no contracts or other documents required to be
described in the Registration Statement and Prospectus.
(y) 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 material terms, conditions or provisions of, or constitute
a material default under, the Articles of Incorporation or Bylaws of the
Company, as amended, or 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 Securities Act, under the Blue Sky or securities
laws of any state or jurisdiction, or the rules of the NASD (as defined
in paragraph 2(a) hereof).
(z) There are no contracts or other documents which are required to
be filed as exhibits to the Registration Statement by the Securities Act
or its rules and regulations which have not been so filed. Each
contract to which the Company is a party has been duly and validly
executed, is in full force and effect in all material respects in
accordance with its respective terms, and no contracts have been
assigned by the Company, except as disclosed in the Registration
Statement and Prospectus. The Company knows of no present situation,
condition or fact which would prevent compliance with the terms of such
contracts. Except for amendments or modifications of contracts in the
ordinary course of business and except as disclosed in the Registration
Statement and Prospectus, the Company has no intention of exercising any
right which would cancel any of its obligations under any contract, and
has no knowledge that any other party to any contract, in which the
Company has an interest, has any intention not to render full
performance under such contract.
(aa) The Company has not made any representation, whether oral or
in writing, to anyone, whether an existing shareholder or not, that any
of the Shares and A Warrants will be reserved for or directed to them
during the proposed public offering.
(bb) The Company has caused each of its current shareholders to
agree in writing with respect to shares of Common Stock acquired by them
prior to the Effective Date that they have acquired the said shares for
investment purposes only and they acknowledged that they are holding
"restricted securities" as defined in Rule 144.
(cc) Except as disclosed in the Registration Statement and
Prospectus, there is and prior to the close of the offering of the
Shares and A Warrants to the public there will be, no action, suit 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.
All of the above representations and warranties shall survive the
performance or termination of this Agreement.
2. Representations and Warranties of the Underwriter. The
Underwriter represents and warrants as follows:
(a) It is registered as a broker-dealer with the Commission, in
good standing, and is registered, to the extent registration is
required, with the appropriate governmental agency in each state in
which it intends to offer or sell the Shares and A Warrants and is a
member of the National Association of Securities Dealers, Inc. ("NASD")
and will use its best efforts to maintain such registrations,
qualifications and memberships throughout the term of the offering.
(b) Anything to the contrary in Section (a) above notwithstanding,
the Underwriter reserves the right to offer the Shares and A Warrants
through selected dealers in other states that it is not registered in,
provided that the selected dealers are so registered in such states.
(c) To the knowledge of the Underwriter, no action or proceeding is
pending against the Underwriter or any of its officers or directors
concerning the Underwriter's activities as a broker or dealer that would
affect the Company's offering of the Shares and A Warrants.
(d) The Underwriter will offer the Shares and A Warrants only in
those states and in the quantities that are identified in the Blue Sky
Memorandums from Underwriter's counsel to the Company that the offering
of the Shares and A Warrants has been qualified for sale under the
applicable state statutes and regulations. The Underwriter, however,
may offer the Shares and A Warrants in other states if (i) the
transaction is exempt from the registration requirements in that state,
(ii) the Company's counsel has received notice ten days prior to the
proposed sale, and (iii) the Company's counsel does not object within
said ten day period.
(e) The Underwriter, in connection with the offer and sale of the
Shares and A Warrants and in the performance of its duties and
obligations under this Agreement, agrees to use its best efforts to
comply with all applicable federal laws, the laws of the states or other
jurisdiction in which the Shares and A Warrants are offered and sold;
and the Rules and Regulations of the NASD.
(f) The Underwriter is a corporation duly organized, validly
existing and in good standing under the laws of the State of Florida
with all requisite power and authority to enter into this Agreement and
to carry out its obligations hereunder.
(g) This Agreement has been duly authorized, executed and delivered
by the Underwriter and is a valid agreement on the part of the
Underwriter.
(h) Neither the execution of this Agreement nor the consummation of
the transactions contemplated hereby will result in any breach of any of
the terms or conditions of, or constitute a default under, the
articles of incorporation or bylaws of the Underwriter or any indenture,
agreement or other instrument to which the Underwriter is a party or
violate any order directed to the Underwriter of any court or any
federal or state regulatory body or administrative agency having
jurisdiction over the Underwriter or its affiliates.
(i) The Underwriter knows of no person who rendered any services in
connection with the introduction of the Company to the Underwriter. No
person acting by, through or under the Underwriter will be entitled to
receive from the Underwriter or from the Company any finder's fees or
similar payments.
(j) The written information provided by the Underwriter for
inclusion in the Registration Statement and Prospectus consists of
certain information on the front and back Prospectus cover pages, and
that set forth under "Underwriting" in the Prospectus.
(k) The Underwriter will, promptly after the Closing date, 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 Shares and A Warrants have been qualified for sale.
All of the above representations and warranties shall survive the
performance or termination of this Agreement.
3. Employment of the Underwriter. In reliance upon the
representations and warranties and subject to the terms and conditions
of this Agreement:
(a) The Company employs the Underwriter as its exclusive agent to
sell, on a firm committment basis the Shares and A Warrants, on a cash
basis only, at a price of $5.25 per Share and $.25 per A Warrant.
(b) The obligation of the Underwriter to offer the Shares and A
Warrants is subject to receipt by it of written advice from the
Commission that the Registration Statement is effective, is subject to
the Shares and A Warrants being qualified for offering under applicable
laws in the states as may be reasonably designated by the Underwriter,
is subject to the absence of any prohibitory action by any governmental
body, agency or official, and is subject to the terms and conditions
contained in this Agreement and in the Registration Statement covering
the offering to which this Agreement relates.
(c) Payment for the Shares and Warrants by the Underwriters shall
be made by certified or official bank check payable to the order of the
Company at the offices of Xxxx X. Xxxxxx, Esq., 000 Xxxx 00xx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 upon delivery of the Shares and A Warrants for
the respective accounts of the Underwriters (the "Closing"). Such
delivery and payment shall be made at 10:00 A.M. on the seventh business
day following the Effective Date (as defined in paragraph
herein).
(d) Certificates for the Representative's Shares shall be
registered in such name or names and in such authorized denominations as
you may request in writing at least two business days prior to the
Closing date.
(e) The Underwriter shall have the right to associate with other
underwriters and dealers as it may determine and shall have the right to
grant to such persons such concessions out of the commissions to be
received by the Underwriter as the Underwriter may determine, under and
pursuant to a Seclected Dealer Agreement.
(f) Subject to the sale of the minimum number of Shares and A
Warrants, the Company agrees to pay to the Underwriter an underwriting
commission computed at the rate of $. (10% of the public offering
price) for each of the Shares and A Warrants sold by the Underwriter at
the public offering price of $5.25 per Shares and $.25 per Warrant.
This commission shall be payable at closing of this Offering.
4. Expenses of the Underwriter.
(a) Subject to the sale of the Shares and A Warrants, the Company
shall reimburse the Underwriter for its expenses on a nonaccountable
basis in an amount equal to three (3%) of the gross proceeds of the
offering. The Underwriter acknowledges that it has received $ -0- as an
advance against the nonaccountable expenses allowance. The remaining
nonaccountable expense allowance is due at the closing of this Offering.
(b) If the proposed public offering is not completed because (i) of
any reason solely within the control of the Company, or its directors,
officers or stockholders, (ii) the Company unilaterally withdraws the
proposed public offering from the Underwriter, (iii) the Company does
not permit the Registration Statement to become effective for any reason
whatsoever, or (iv) of any discrepancy in any representation made to the
Underwriter, then the Company will be obligated to reimburse the
Underwriter for its actual accountable out of pocket expenses incurred
in connection herewith. The parties agree that such reimbursement shall
be inclusive of the sums paid pursuant to this paragraph. It is
understood and agreed by the parties hereto that any expenses incurred
by the Underwriter shall be deemed to be reasonable and unobjectionable
upon a reasonable showing by the Underwriter that such expenses were
incurred, directly or indirectly, in connection with the proposed
transaction and/or relationship of the parties hereto, as described
herein. The Underwriter agrees that out of its nonaccountable expense
allowance the Underwriter will pay all costs incurred or to be incurred
by the Underwriter or by its personnel in connection with the offering
of the Shares and A Warrants, except those to be paid by the Company as
described in Paragraph 5 hereof.
5. Expenses of the Company. The Company agrees that it will pay
the following fees and expenses:
(a) All fees and expenses of its legal counsel who will be engaged
to prepare certain information, documents and papers for filing with the
Commission and with state or local securities authorities;
(b) All fees and expenses of its accountants incurred in connection
with the offering of the Shares and A Warrants and the preparation of
all documents and filings made as part of the offering;
(c) All costs in issuing and delivering the Shares and A Warrants;
(d) All costs in printing and delivering to the Underwriter and
dealers as many copies of the Registration Statement and amendments,
preliminary Prospectuses and definitive Prospectuses as reasonably
requested by the Underwriter;
(e) All of the Company's mailing, telephone, travel, clerical and
other office costs incurred or to be incurred in connection with the
offering of the Shares and A Warrants;
(f) All fees and costs which may be imposed by the Commission, the
various state or local securities authorities and the NASD for review of
the offering of the Shares and A Warrants;
(g) All other expenses incurred by the Company in performance of
its obligations under this Agreement.
6. Underwriter's Warrants.
(a) The Company shall issue and sell at the Closing of the
proposed underwriting, to the Underwriter and/or its designees, warrants
to purchase from the Company up to Shares (one (1) Share
for every ten (10) Shares sold (the "Underwriter's Warrants) in the
offering at a price of $.0001 per Unit. The Underwriter's Warrants will
be exercisable at $ per Share (the "Exercise Price") with
the warrants comprising the Shares and A Warrants exercisable at
$???????? per Warrant. The Underwriter's Warrants are exercisable for a
period of four years, commencing one year from the date of the
prospectus. The Company agrees that, for a period of seven (7) years
from the Effective Date, if the Company intends to file a Registration
Statement for the public sale of securities (excluding a Registration
Statement in connection with mergers, acquisitions, or employee stock
option or share benefit plans), it will notify all of the holders of the
Underwriter's Warrants and/or the holders of the securities issuable
upon the exercise of the Underwriter's Warrants, and if so requested by
any holder of Underwriter's Warrants or the holder of the underlying
securities, the Company will include in such Registration Statement,
information to permit a public offering of the Underwriter's Warrants
and/or the underlying securities owned by such holders, at the expense
of the Company (excluding underwriting discounts, commissions, fees and
expenses of the holder's counsel). In addition, for a period of four
(4) years commencing one (1) year from the Effective Date of the
Registration Statement, upon the written demand of the Underwriter or
its specific duly authorized designees or, together with the Underwriter
or its specific duly authorized designee's consent, the holder(s) of at
least 50% of the Underwriter's Warrants and/or the securities underlying
the same, the Company agrees, on one occasion at the expense of the
Company (excluding underwriting discounts, commissions, fees and
expenses of the holder's counsel) and on a second occasion at the
expense of such holders, to promptly register the Underwriter's Warrants
and/or the underlying securities for purposes of a public offering.
(b) The Underwriter's Warrants will be evidenced by certificates
issued by the Company and delivered to the Underwriter, which shall
contain such terms and conditions as are required by the Underwriter,
including anti-dilution provisions reasonably acceptable to the
Underwriter relating to stock splits, stock dividends and other like
matters. Any transfer of the Underwriter's Warrants by the Underwriter
to any person must be made in compliance with the Securities Act.
(c) The Underwriter agrees that the Underwriter's Warrants and any
certificates representing the Warrant Shares will bear the following
legend:
"The securities represented by this certificate may not be
offered for sale, sold or otherwise transferred except
pursuant to an effective registration statement under the
Securities Act of 1933 (the "Securities Act"), or pursuant
to an exemption from registration under the Securities Act,
the availability of which is to be established to the
satisfaction of the Company."
7. Threat of Regulatory Action. The Company and the Underwriter
agree to advise each other immediately and confirm in writing the
receipt of any threat of or the initiation of any steps or procedures
which would impair or prevent the right to offer the Shares and A
Warrants or the issuance of any "suspension orders" or other
prohibitions preventing or impairing the proposed offering of the Shares
and A Warrants. In the case of the happening of any such event, neither
the Company nor the Underwriter will acquiesce in such steps, procedures
or suspension orders if such acquiescence would adversely affect the
other party and, in such event, each party agrees to actively defend any
such actions or orders unless both parties agree in writing to acquiesce
in such actions or orders or unless counsel for each party advises the
parties that the probability of successfully defending against such
actions or orders is remote.
8. Further Agreements of the Company. The Company further agrees
with the Underwriter as follows:
(a) The Company will advise the Underwriter as soon as the Company
is advised of any comments by the Commission, of any request made by
the Commission for an amendment to the Registration Statement or
Prospectus or for supplemental information, and of any order or of the
institution of any adverse proceedings with respect to the offering of
the Shares and A Warrants. The Company will immediately deliver to the
Underwriter copies of any papers involved.
(b) The Company will use its best efforts to qualify the sale of
the Shares and A Warrants in such states as shall be reasonably
designated by the Underwriter. The officers, directors, promoters and
shareholders of the Company will comply with applicable state escrow
requirements, including those pertaining to the escrow of shares,
provided that the period of escrow shall not exceed two years from the
Effective Date and provided that the period of escrow shall only be
based upon the passage of time.
(c) The Company will provide the Underwriter and its counsel with
copies of all applications for the registration of Shares and A Warrants
filed with the various state authorities and will provide the
Underwriter and its counsel with copies of all comments and orders
received from these authorities.
(d) The Company will deliver to the Underwriter (and to other
broker-dealers as directed by the Underwriter) as many copies of
preliminary Prospectuses as the Underwriter may reasonably request
during the period following the filing of Amendment No. 1 to the
Registration Statement (unless the Registration Statement is not
reviewed by the Commission, in which event such copies shall be made
available by the Company as reasonably requested by the Underwriter) and
the Effective Date. The Company will deliver to the Underwriter and to
other broker-dealers as requested by the Underwriter as many copies of
the definitive Prospectus as the Underwriter may reasonably request
during the period of the offering and for 90 days after the Effective
Date.
(e) If the Company becomes a reporting company pursuant to Section
12(g) of the Exchange Act and/or is required to file reports pursuant to
Section 15(d) of the Exchange Act, and the Underwriter is a principal
market-maker in the Company's Common Stock, the Company shall furnish
the Underwriter for so long as the Company's common stock is registered
under the Exchange Act and/or the Company is required to file reports
under the Exchange Act, with:
(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, such report to include such information
in such form as the Company shall be required to include in reports for
that fiscal year to be filed with the Commission and such report to be
certified by independent public accountants;
(ii) Within 60 days after the end of each quarterly fiscal
period of the Company other than the last quarterly fiscal period in any
fiscal year, copies in printable form of the financial statements of the
Company and its subsidiaries, if any, on a consolidated basis, for that
period and as of the end of that period, which financial statements
shall include a narrative discussion of such financial statements and of
the business conducted by the Company and its subsidiaries, if any,
during such fiscal quarter and such information in such form as the
Company shall be required to include in reports for that period to be
filed with the Commission, all subject to year-end adjustment, signed by
the principal financial or accounting officer of the Company;
(iii) As soon as is available, a copy of each report of the
Company mailed to shareholders or filed with the Commission;
(iv) Copies of all news, press or public information releases
when made; and
(v) Upon request in writing from the Underwriter, such other
information as may reasonably be requested concerning the properties,
business and affairs of the Company and its subsidiaries, if any.
(f) The Company agrees to notify the Underwriter immediately within
the 90 day period after the Effective Date of any event that materially
affects the Company or its securities and that should be set forth in an
amendment or supplement to the Prospectus in order to make the
statements made therein not misleading. Similarly, the Company agrees
to as soon as possible thereafter prepare and furnish to the Underwriter
as many copies as the Underwriter may request of an amended Prospectus
or a supplement to the Prospectus in order that the Prospectus as
amended or supplemented will not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or that is necessary in order to make the statements made
therein not misleading.
(g) The Company will file with the Commission the required reports
on Form SR and will file with the appropriate state securities
commissioners any sales and other reports required by the rules and
regulations of such agencies and will supply copies to the Underwriter.
(h) Except with the Underwriter's approval, the Company agrees that
the Company will not do the following until (a) the completion of the
offering of the Shares and A Warrants, or (b) the termination of this
Agreement, or (c) 90 days after the Effective Date, whichever occurs
later:
(i) Undertake or authorize any change in its capital structure
or authorize, issue, or permit any public or private offering of
additional securities;
(ii) Authorize, create, issue, or sell any funded obligations,
notes or other evidences of indebtedness, except in the ordinary course
of business and within 12 months of their creation;
(iii) Consolidate or merge with or into any other corporation;
or
(iv) Create any mortgage or any lien upon any of its
properties or assets except in the ordinary course of its
business.
(i) Within 30 days after the successful termination of the offering
of the Shares and A Warrants, the Company agrees to submit information
about the Company to be included in various securities manuals,
including Xxxxx'x Over-The-Counter Manual and Standard & Poor's,
Standard Corporation Records to facilitate secondary trading in the
Shares and A Warrants.
(j) The Company agrees to cause the stock certificates of all of
the current shareholders of the Company and of any future officers or
directors of the Company to be clearly legended as being restricted
against transfer without compliance with the Securities Act and to cause
the Company's transfer agent to put stop transfer instructions against
such stock certificates.
9. Company's Indemnification.
(a) The Company agrees to indemnify, defend and hold harmless the
Underwriter from and against any and all losses, claims, damages,
liabilities and expenses (including reasonable legal or other expenses)
incurred by the Underwriter in connection with defending or
investigating any such claims or liabilities, whether or not resulting
in any liability to the Underwriter, which the Underwriter may incur
under the federal or state securities laws and regulations thereunder,
state statutes or at common law or otherwise, but only to the extent
that such losses, claims, damages, liabilities and expenses shall arise
out of or be based upon a violation or alleged violation of the federal
or state securities laws or regulations promulgated thereunder, a state
statute or the common law resulting from any untrue statement or alleged
untrue statement of a material fact contained in the Registration
Statement or in any application or other papers filed with the various
state securities authorities (hereinafter collectively called "Blue Sky
Applications") or shall arise out of or be based upon any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
provided, however, that this indemnity agreement shall not apply to any
such losses, claims, damages, liabilities or expenses arising out of or
based upon any such violation based upon a statement or omission made in
reliance upon written information furnished for use in the Registration
Statement or in a Blue Sky Application by the Underwriter.
(b) The foregoing indemnity of the Company in favor of the
Underwriter shall not be deemed to protect the Underwriter against any
liability to which the Underwriter would otherwise be subject by reason
of willful misfeasance, bad faith or gross negligence in the performance
of the Underwriter's duties, or by reason of the Underwriter's reckless
disregard of the Underwriter's obligations and duties under the
Securities Act or this Agreement.
(c) The Underwriter agrees to give the Company an opportunity to
participate in the defense or preparation of the defense of any action
brought against the Underwriter to enforce any such claim or liability
and the Company shall have the right so to participate. The agreement
of the Company under the foregoing indemnity is expressly conditioned
upon notice of any such action having been sent by the Underwriter to
the Company, by letter or telegram (addressed as provided in this
Agreement), promptly after the receipt of written notice of such action
against the Underwriter such notice either being accompanied by copies
of papers served or filed in connection with such action or by a
statement of the nature of the action to the extent known to
Underwriter. Failure to notify the Company as herein provided shall not
relieve it from any liability which it may have to the Underwriter other
than on account of the indemnity agreement contained in this paragraph
9.
10. Underwriter's Indemnification.
(a) The Underwriter likewise agrees to indemnify, defend and hold
harmless the Company against any and all losses, claims, damages,
expenses and liabilities to which the Company may become subject,
arising out of or based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or
in any Blue Sky Application or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, resulting from the use of
written information furnished to the Company by the Underwriter for use
in the preparation of the Registration Statement or in any Blue Sky
Application.
(b) The Company agrees to give the Underwriter an opportunity to
participate in the defense or preparation of the defense of any action
brought against the Company to enforce any such claim or liability and
the Underwriter shall have the right so to participate. The
Underwriter's liability under the foregoing indemnity is expressly
conditioned upon notice of any such action having been sent by the
Company to the Underwriter by letter or telegram (addressed as provided
for in this Agreement), promptly after the receipt by the Company of
written notice of such action against the Company, such notice either
being accompanied by copies of papers served or filed in connection with
such action or by a statement of the nature of the action to the extent
known to the Company. Failure to notify the Underwriter as herein
provided shall not relieve the Underwriter from any liability which the
Underwriter may have to the Company other than on account of the
indemnity agreement contained in this paragraph 10.
(c) The provisions of paragraphs 9 and 10 shall not in any way
prejudice any right or rights which the Underwriter may have against the
Company or the Company may have against the Underwriter under any
statute, including the Securities Act, at common law or otherwise.
(d) The indemnity agreements contained in paragraphs 9 and 10 shall
survive the termination of this Agreement and shall inure to the benefit
of the Company, the Underwriter, their respective successors and the
persons specified in Section 16 below, and their respective heirs,
personal representatives and successors and shall be valid irrespective
of any investigation made by or on behalf of the Underwriter or the
Company.
11. Contribution. If the indemnification provided for in
paragraphs 9 and 10 is unavailable to or insufficient to hold harmless
an indemnified party under paragraphs 9 and 10 in respect of any losses,
claims, damages, expenses or liabilities (or actions in respect thereof)
referred to therein, then each indemnifying party shall in lieu of
indemnifying such indemnified party as a result of such losses, claims,
damages, expenses or liabilities (or actions in respect thereof)
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, expenses or liabilities (or
actions in respect thereof) in such proportion as is appropriate to
reflect not only (i) the relative benefits received by the Company on
the one hand and the Underwriter on the other from the offering of the
Shares and A Warrants, but also (ii) the relative fault of the Company
and the Underwriter in connection with the statements or omissions which
resulted in such losses, claims, damages, expenses or liabilities (or
action in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and the Underwriter on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering of the
Shares and A Warrants (before deducting expenses other than the
nonaccountable expense allowance payable by the Company to the
Underwriter) received by the Company bear to the total underwriting
commissions and expense allowance received by the Underwriter in each
case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to
information applied by the Company or the Underwriter and their parties'
relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the
Underwriter agree that it would not be just and equitable if
contribution pursuant to this paragraph 11 were determined by pro rata
allocation or by any other method of allocation which does not take
account of the equitable considerations referred to above in this
paragraph 11. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, expenses or liabilities (or
actions in respect thereof) referred to above in this paragraph 11 shall
be deemed to include any legal or other expenses to which such
indemnified party would be entitled if paragraphs 9 and 10 were applied.
Notwithstanding the provisions of this paragraph 11, the Underwriter
shall not be required to contribute any amount in excess of the amount
by which the total price which the Shares and A Warrants underwritten by
it and distributed to the public exceeds the amount of any damages which
the Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission plus
the Underwriter's proportionate share of such legal or other expenses;
and any punitive or exemplary damages if the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by or statements
made by the Underwriter. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11 of the Securities
Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
12. Conditions Precedent to the Obligations of the Underwriter.
All obligations of the Underwriter under this Agreement are subject to
the following conditions precedent:
(a) Counsel for the Underwriter shall have completed a review of
the form and content of the Registration Statement and Prospectus, of
the organization and present legal status of the Company and of the
legality and validity of the authorization and issuance of the issued
and outstanding stock of the Company and of the Shares and A Warrants.
(b) The Company shall have performed all of its obligations under
this Agreement. All of the statements, representations and warranties
contained in this Agreement shall be complete and true.
(c) From the date of this Agreement until the completion of the
offering, no material adverse changes shall have occurred in the
business, properties and assets of the Company other than changes
occurring in the ordinary course of business.
(d) From the date of this Agreement until the completion of the
offering, no claims or litigation shall have been instituted or
threatened against the Company for substantial amounts or which would
materially adversely affect the Company, its business or its property
and no reasonable basis exists for such claims or threats. Further, no
proceeding shall have been instituted or threatened against the Company
before any regulatory body wherein an unfavorable ruling would have a
material adverse effect on the Company.
(e) From the date of this Agreement until the completion of the
offering of the Shares and A Warrants, no material adverse change shall
have occurred in the operation, financial condition, management or
credit of the Company or in any conditions affecting the prospects of
its business.
(f) From the date of this Agreement until the completion of the
offering, the Company shall not have sustained any loss on account of
fire, flood, accident or calamity of such character as materially
adversely affects its business or property, regardless of whether or not
the loss has been insured.
(g) The Underwriter shall have received from the independent public
accountants for the Company two letters addressed to the Underwriter,
one dated the Effective Date and one dated the date of closing of this
Offering to the effect that:
(i) With respect to the Company they are independent public
accountants within the meaning of the Securities Act and the published
rules and regulations.
(ii) In their opinion, the financial statements and supporting
schedules and notes examined by them of the Company at all dates and for
all periods referred to in their opinion included in the definitive
Prospectus comply as to form in all material respects with the
applicable accounting requirements of the Securities Act and the
published rules and regulations.
(iii) Upon the basis of a reading of the related available
interim financial statements and the financial data and accounting
records of the Company, inquiries of officers of the Company responsible
for financial and accounting matters, a reading of the minute books of
the Company and other specified procedures and inquiries satisfactory to
the Underwriter, if any, nothing has come to their attention which
causes 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 (5) days prior to the date of such letter (a) there
has been any change in the capital shares or other securities of the
Company or any payment or declaration of any dividend or other
distribution in respect thereof or exchange therefor 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
definitive Prospectus (other than as set forth in or contemplated by the
Registration Statement or definitive Prospectus); (b) there have been
any material decreases in net current assets or net assets as compared
with amounts shown in the last audited balance sheet included in the
definitive Prospectus (other than in the ordinary course of business),
except in all instances the changes disclosed in or contemplated by the
Registration Statement and definitive Prospectus; and (c) on the basis
of their examinations referred to in their opinion, report, and consent
included in the Registration Statement and definitive Prospectus and the
indicated procedures and discussions referred to above, nothing has come
to their attention which, in their judgment, would cause them to believe
or indicate that the financial statements and schedules set forth in the
Registration Statement and definitive Prospectus do not present fairly
the financial position and results of operations of the Company, for the
periods indicated, in conformity with generally accepted accounting
principles applied on a consistent basis, and are not in all material
respects a fair presentation of the information purported to be shown.
(h) On the date of the closing of this Offering the Underwriter
shall have received from the president or vice president of the Company
and the treasurer of the Company certificates dated as of such date, in
form satisfactory to the Underwriter to the effect that:
(i) The representations and warranties of the Company
contained in paragraph 1 of this Agreement are complete and true.
(ii) All of the conditions precedent in paragraphs 12(b)-12(f)
of this Agreement have been performed and the representations of these
conditions precedent are true.
(iii) No stop order or other proceedings have been instituted
or threatened by the Commission or any state authority which would
adversely affect the offering of the Shares and A Warrants.
(iv) This Agreement and the Underwriter's Warrants have been
duly authorized and executed and constitute valid agreements of the
Company and with respect to the Underwriter's Warrants are binding
agreements and are enforceable according to their terms.
(v) The respective signers have each carefully examined the
Registration Statements and definitive Prospectus and any amendments
and supplements, and to the best of their knowledge the Registration
Statement and definitive Prospectus and any amendments and supplements
contain all statements required to be stated therein. All statements
contained therein are true and correct, neither the Registration
Statement, definitive Prospectus or any amendment, supplement or
sticker 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. Since the
Effective Date of the Registration Statement, there has occurred no
event 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 supplemented Prospectus which has not been so set forth.
(i) On the date of the closing of this Offering the Underwriter
shall have received a written opinion from the Company's counsel stating
that:
(i) The Company has filed a Registration Statement on Form SB-
2 relating to the Shares and A Warrants with the Commission pursuant to
the Securities Act, the Registration Statement has become effective
under the Securities Act and the Registration Statement, Prospectus and
all other documents filed with the Commission comply as to form with all
requirements of the Securities Act in all material respects (except for
the financial statements and other financial data included therein, as
to which counsel need express no opinion).
(ii) Counsel is unaware of any contracts or other documents
required to be described in the Registration Statement or in the
Prospectus or to be filed as exhibits to the Registration Statement
which have not been described or filed as required.
(iii) Counsel is unaware of any contracts or documents that
have not been disclosed in the Prospectus that are material to the
representations in the Prospectus and that would require disclosure in
order to make statements made not misleading.
(iv) Except as set forth in the Registration Statement
Prospectus and financial Statements included therein the best knowledge
of counsel and after reasonable investigation, the Company is not in
default of any of the contracts, leases or agreements to which it is a
party and the proposed offering of Shares and A Warrants will not
cause the Company to become in default of any of its contracts, leases
or agreements nor will it create a conflict between the Company and any
of the contracting parties to the contracts, leases and other agreements.
(v) To the best knowledge of counsel and after reasonable
investigation, and except as described in the Registration Statement,
Prospectus and financial statements included therein, the Company has
marketable title to all properties described in the Registration
Statement as owned by it. Except as reflected in the Registration
Statement and financial statements included therein, the properties are
free and clear of all liens, charges, encumbrances or restrictions; all
of the leases, subleases and other agreements under which the Company
holds its properties are in full force and effect; the Company is not
in default under any of the material terms or provisions of any of the
leases, subleases or other agreements; and there are no claims against
the Company concerning its rights under the leases, subleases and other
agreements and concerning its right to continued possession of its
properties.
(vi) This Agreement and the Underwriter's Warrants issued to
the Underwriter or its designees have been duly authorized and executed
by the Company and constitute valid agreements of the Company except
that no opinion need be expressed as to the validity of the
indemnification provisions insofar as they are or may be held to be
violative of public policy (under either state or federal law), the
availability of specific performance or other equitable remedies, the
effects of bankruptcy, insolvency, moratorium and all other similar
laws and decisions affecting the rights of creditors generally and as
to whether or not this Agreement may be an illusory contract.
(vii) Except as set forth in the Registration Statement,
Prosectus and fianncial statements included therein, to the best
knowledge of counsel and after reasonable investigation, no claim or
litigation has been instituted or threatened against the Company.
(viii) To the best knowledge of counsel and after reasonable
investigation, no stop order or other proceedings have been instituted
or threatened by the Commission or any state or local authority which
would adversely affect the offering of the Shares and A Warrants.
(ix) To the best knowledge of counsel and after reasonable
investigation, all documents and contracts relating to the Company's
affairs have been furnished to the Underwriter's counsel.
(x) To the best knowledge of counsel and after reasonable
investigation, the Company possesses adequate licenses, certificates,
authorizations or permits issued by the appropriate federal, state and
local regulatory authorities necessary to conduct its business as
described in the Registration Statement and to retain possession of its
properties. Counsel is unaware of any notice of any proceeding
relating to the revocation or modification of any of these certificates
or permits having been received by the Company.
(xi) To the best knowledge of counsel and after reasonable
investigation, neither the Company nor its affiliates is currently
offering any securities for sale except as described in the Registration
Statement.
(xii) No preemptive rights exist with respect to the Company's
securities.
(xiii) Except as set forth in the Registration Statement,
Counsel is unaware of any subsidiaries of the Company.
(xiv) Counsel has participated in the preparation of the
Registration Statement and Prospectus and no facts have come to the
attention of such counsel to lead counsel to believe that either the
Registration Statement or the Prospectus or any amendment or supplement
thereto (except for the financial statements and other financial data
included therein, as to which such counsel need express no opinion)
contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(xv) The Company has an authorized capitalization of
15,000,000 shares consisting of shares of common stock $.0001 par value
per share. Except as set forth in the Registration Statement, there are
no outstanding options, warrants or other rights to purchase shares of
the Company's common stock known to counsel other than as described in
the Registration Statement.
(xvi) The Company has been incorporated and is a validly
existing corporation under the laws of the State of New York and has
full corporate power and authority under such laws to own its
properties and to conduct its business as described in the Registration
Statement. To the best of counsel's knowledge, information and belief,
the Company is qualified to conduct business as a foreign corporation in
each jurisdiction where the nature of its business activities requires
such qualification except where failure to so qualify would not have a
material adverse effect upon the business or financial condition of the
Company.
(xvii) The Company's shares of common stock that are issued
and outstanding are fully paid and nonassessable and the Shares and A
Warrants and Warrant Shares when issued and paid for in accordance with
their terms will be fully paid and non-assessable. The Shares and A
Warrants conform to the description thereof contained in the
Registration Statement. The Company has authorized the issuance of the
Shares and A Warrants, the warrants included therein, the Underwriter's
Warrants and the Warrant Shares and has full power and authority to
issue and sell the Shares and A Warrants, terms and conditions herein
set forth. A sufficient number of common shares have been duly reserved
for issuance upon exercise of the Warrants and Underwriter's Warrants.
The foregoing opinion may be rendered in part by regular corporate
counsel and, in part, by securities counsel to the Company.
13. Termination.
(a) 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 within the respective times herein provided for, unless
compliance therewith or performance or satisfaction thereof shall have
been expressly waived by the Underwriter in writing.
(b) This Agreement may be terminated by the Underwriter by notice
to the Company if the Underwriter believes in its sole judgment that any
adverse changes have occurred in the management of the Company, that
material adverse changes have occurred in the financial condition or
obligations of the Company or if the Company shall have sustained a loss
by strike, fire, flood, accident or other calamity of such a character
as, in the sole judgment of the Underwriter, may interfere materially
with the conduct of the Company's business and operations regardless of
whether or not such loss shall have been insured.
(c) This Agreement may be terminated by the Underwriter by notice
to the Company at any time if, in the sole judgment of the Underwriter,
payment for and delivery of the Shares and A Warrants 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
minimum or maximum prices shall have been generally established on the
New York or American Stock Exchange, or trading in securities generally
on either such exchange shall have been suspended, or a general
moratorium shall have been established by federal or state authorities,
or (ii) a war or other national calamity shall have occurred, or (iii)
substantial and material changes in the condition of the market (either
generally or with reference to the sale of the Shares and A Warrants to
be offered hereby) beyond normal fluctuations are such that it would be
undesirable, impracticable or inadvisable in the sole judgment of the
Underwriter to proceed with this Agreement or with the public offering
or (iv) of any matter materially adversely affecting the Company.
(d) In the event any action or proceeding shall be instituted or
threatened against the Underwriter, either in any court of competent
jurisdiction, before the Commission or any state securities commission
concerning its activities as a broker or dealer that would prevent the
Underwriter from acting as such, at any time prior to the effective date
hereunder, or in any court pursuant to any federal, state, local or
municipal statute, a petition in bankruptcy or insolvency or for
reorganization or for the appointment of a receiver or trustee of the
Underwriter's assets or if the Underwriter makes an assignment for the
benefit of creditors, the Company shall have the right on three days'
written notice to the Underwriter to terminate this Agreement without
any liability to the Underwriter of any kind except for the payment of
expenses as provided in Section 4(a) and 5 herein.
(e) Any termination of this Agreement pursuant to this Section 13
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, except that in such event (i) the Underwriter shall
provide the Company with a statement of its accountable expenses, which
shall include but are not limited to, the Underwriter's counsel fees,
consultants' fees, entertainment expenses, travel expenses, postage
expenses, office costs, advertising costs, clerical costs, due diligence
meeting expenses, duplication expenses, long-distance telephone
expenses, and general and administrative expenses incurred in connection
with the proposed offering and (ii) if such accountable expenses are
more than the amount of the nonaccountable expense payments the Company
has made to the Underwriter, the Underwriter shall bear such excess or
if such accountable expenses are less than the amount of the
nonaccountable expense payments the Underwriter has received from the
Company, the Underwriter shall return the difference to the Company.
14. Notices. All notices shall be in writing and shall be delivered
at or mailed to the following addresses or sent by telegram to the
following addresses with written confirmation thereafter:
To the Company:
Xx. Xxxxxxx Xxxxxx
Silver Star Foods, Inc.
Xxxx Xxxxxx Xxx 000000
Xxxxxxxx, Xxx Xxxx 00000
with a copy to:
Xxxxxxx X. Xxxxxx, Esq.
Freehold Office Plaza
0000 Xxxxx 0, Xxxxx X
Xxxxxxxx, XX 00000
To the Underwriter:
Xx. Xxxxxxx Xxxxxxxxx
Royal Xxxxxx Securities, Corp.
0000 Xxxxxx Xxxx
Xxxx Xxxxx, Xxxxxxx 00000
with a copy to:
Xxxx X. Xxxxxx, Esq.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
16. Binding Effect. This Agreement shall inure to the benefit of
and be binding upon the Company and the Underwriter (including the
participating dealers as provided in paragraphs 9 and 10) and their
successors. Nothing expressed in this Agreement is intended to give
any person other than the persons mentioned in the preceding sentence
any legal or equitable right, remedy or claim under this Agreement.
However, the representations, warranties and indemnity and defense
obligations of the Company included in this Agreement also inure to the
benefit of any person who controls the Underwriter and participating
dealers within the meaning of Section 15 of the Securities Act and the
representations, warranties, indemnities and defense obligations of the
Underwriter and participating dealers inure to the benefit of each
officer who signs the Registration Statement, each director of the
Company and each person who controls the Company within the meaning of
Section 15 of the Securities Act.
17. Miscellaneous Provisions.
(a) Time shall be of the essence of this Agreement.
(b) This Agreement shall be construed according to the laws of the
State of New York.
(c) The representations and warranties made in this Agreement
shall survive the termination of this Agreement and shall continue in
full force and effect regardless of any investigation made by the party
relying upon any such representation or warranty.
(d) This Agreement is made solely for the benefit of the Company
and its officers, directors and controlling persons within the meaning
of Section 15 of the Securities Act and of the Underwriter and its
officers, directors and controlling persons within the meaning of
Section 15 of the Securities Act, and their respective successors, heirs
and personal representatives, and no other person shall acquire or have
any right under or by virtue of this Agreement. The term "successor" as
used in this Agreement shall not include any purchaser, as such, of the
Shares and A Warrants.
(e) The Underwriter will provide upon closing a list of all the
names and addresses of all participating dealers and shall provide the
Company with such changes of the address or name of such participating
dealers as occur and of which the Underwriter is notified. Further, the
Underwriter shall use its best efforts to maintain the current name and
address of all participating dealers during the terms of this Agreement.
If this Agreement correctly sets forth our understanding,
please indicate your acceptance in the space provided below for that
purpose.
Very truly yours,
Silver Star Foods, Inc.
By:
-------------------------------------
Xxxxxxx Xxxxxx, President
Confirmed and accepted as of
the date of this Agreement:
Royal Xxxxxx Securities Corp.
By:
-----------------------------
Xxxxxxx Xxxxxxxxx
