EXHIBIT 10.33
AGREEMENT OF MANAGEMENT AND SHAREHOLDERS
Dated: [EFFECTIVE DATE]
X.X. Xxxxxx & Co., Inc.
As Representative of the
referenced Underwriters
0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Pursuant to a certain Underwriting Agreement (the "Underwriting Agreement")
dated this date (the "Effective Date") between Ambassador Eyewear, Inc., a
Delaware corporation (the "Company"), and you, as Representative of the several
Underwriters, including yourself, named therein (the "Underwriters"), the
Company proposes to sell to the Underwriters, pursuant to a registration
statement (File No. 33-3-31343) on Form SB-2 relating to the public offering
thereof (the "Offering"), of shares of the Common Stock, $.01 par value, of the
Company (the "Common Stock" or "Securities"). Capitalized terms used in this
Agreement and not otherwise defined herein shall have the respective meanings
given them by the Underwriting Agreement.
To induce you to enter into the Underwriting Agreement, and in
consideration thereof, each of the undersigned, being an officer, director or
shareholder of the Company (each, an "Individual") agrees as follows:
1. Covenants. Each Individual, for himself individually and not jointly,
covenants and agrees with each Underwriter and the Company that:
(a) Restriction on Future Sales. For a period of 18 months following
the First Closing Date, such Individual shall not, without your prior written
consent, sell, assign, hypothecate, pledge or otherwise dispose of, directly or
indirectly, any Securities now or hereafter owned by him (whether acquired
through option exercise or otherwise), and such Individual hereby agrees to
permit all certificates evidencing such Securities to be endorsed with the
appropriate restrictive legends, and consents to the placement of appropriate
stop transfer orders with the transfer agent for the Company.
(b) Certain Market Practices. Such Individual represents that he has
not taken, and agrees that he shall not take, directly or indirectly, any action
designed, or which might reasonably be expected, to cause or result in, or which
has constituted, the stabilization or manipulation of the price of the
Securities to facilitate the sale or resale thereof.
(c) Certain Representations. Such Individual shall not make any
written or oral representation in connection with the Offering and sale of the
Securities or the Representative's Warrant which is not contained in the
Prospectus, which is otherwise inconsistent with or in contravention of any
thing contained in the Prospectus, or which shall constitute a violation of the
Securities Act of 1933, as amended (the "Act"), the rules and
regulations promulgated thereunder, the Securities Exchange Act of 1934, as
amended, or the rules and regulations promulgated thereunder.
(d) Future Offerings. For a period of five years following the First
Closing Date, you shall have the right of first refusal to act as underwriter or
agent for any public offering or sale of the securities of the Company, or of
any successor to the Company, made by such Individual.
(e) Rule 144 Sales. For a period of five years following the First
Closing Date, you shall have the right to purchase for your own account, or to
sell for the account of such Individual, all securities of the Company sold by
such Individual pursuant to Rule 144 of the rules and regulations promulgated
under the Act.
2. Representations and Warranties. Each Individual, for himself
individually and not jointly, represents and warrants to, and agrees with, each
Underwriter and the Company as follows:
(a) Authority, Etc. Such Individual has the power and authority to
execute, deliver and perform its obligations under this Agreement. Such
Individual's execution and delivery of, and its performance of its obligations
under, this Agreement have been duly authorized by all necessary action.
(b) Enforceability. This Agreement has been duly and validly
executed and delivered by such Individual and, assuming due execution thereof by
you or the Company, as the case may be, constitutes valid and binding
obligations of such Individual, enforceable against him in accordance with their
respective terms.
(c) No Conflict. The compliance by such Individual with all of the
provisions of this Agreement will not conflict with or result in a breach of,
any of the terms or provisions of, or constitute a default under, or result in
the creation or imposition of any lien, charge or encumbrance pursuant to the
terms of, any contract, indenture, mortgage, deed of trust, loan agreement or
other material agreement or instrument to which such Individual is a party or by
which he may be bound or to which any of his property or assets are subject, nor
will such action result in any violation of the provisions of any statute,
order, rule or regulation applicable to such Individual of any court or
governmental authority having jurisdiction over him or his property.
(d) Shareholder Agreements, Registration Rights. Except for options
granted under the Company's Stock Option Plan and disclosed in the Prospectus,
such Individual has no rights with respect to the purchase, sale or registration
of any Securities.
(e) No NASD Affiliation. Except as described in Schedule 2(e)
hereto, such Individual has no direct or indirect affiliation or association
with any member of the National Association of Securities Dealers, Inc.
3. Effectiveness. This Agreement shall become effective upon the
effectiveness, in accordance with its terms, of the Underwriting Agreement.
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4. Termination. This Agreement shall terminate upon the termination by
you of the Underwriting Agreement in accordance with the terms of the
Underwriting Agreement.
5. In General.
(a) Survival. The respective covenants, representations and
warranties of the Individuals set forth in this Agreement shall survive delivery
of and payment for the Securities.
(b) Parties in Interest. This Agreement is made solely for the
benefit of the Underwriters and, to the extent expressed, the Individuals, any
person controlling an Underwriter, and their respective executors,
administrators, successors and assigns; and no other person shall acquire or
have any right under or by virtue of this Agreement. The term "successors and
assigns" shall not include any purchaser, as such, of Securities from an
Underwriter.
(c) Gender. Wherever used herein, the masculine pronoun shall
include the feminine and the neuter, as appropriate in the context.
(d) Applicable Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
agreements made and to be performed entirely within such State. The individuals
agree to submit to the jurisdiction of state and federal courts located in
Monroe County, New York.
(e) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
If the foregoing is in accordance with your understanding of our
agreement, kindly sign and return this Agreement, whereupon it will become a
binding agreement among the Individuals, the Company and the Underwriters in
accordance with its terms.
Yours very truly,
_______________________________________
Xxxx X. Xxxxxxx
_______________________________________
Xxxxx Xxxxxxx
_______________________________________
Xxxxxxx Xxxxxxx
_______________________________________
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Xxx Xxxx
_______________________________________
_______________________________________
Xxxxx X. XxXxxxx
_______________________________________
Xxxxxx Xxxxxx
_______________________________________
Xxxxxxx X. Xxxxxxxxxx
_______________________________________
Xxxxxxx Xxxxxxxxxx
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
X.X. Xxxxxx & Co., Inc.
As Representative of the
referenced Underwriters
By:____________________________________
Its
DynamicWeb Enterprises, Inc.
By:____________________________________
Name: Xxxxxx X. Xxxxxxxxxx, Xx.
Title: Chief Executive Officer
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