PREMIUM RESTAURANT COMPANY EXHIBIT 10.1
AGENCY AGREEMENT
May __, 1998
Agent:
___________________
___________________
___________________
Ladies and Gentlemen:
Premium Restaurant Company, a Minnesota corporation (the "Company"), has
filed a Registration Statement with the Securities and Exchange Commission
for the sale of up to 2,000,000 Units ("Units"), each Unit consisting of a
share of the Company's common stock, $.01 par value ("Common Stock") and one
Redeemable Common Stock Purchase Warrant. The Company is selling the Units
at a price of $1.25 per Unit. The Company hereby confirms its agreement
with you to act as its nonexclusive agent (the "Agent") to offer and sell
Units on behalf of the Company on a "best efforts" basis upon the terms and
conditions set forth herein.
1. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE AGENT. The Agent
represents and warrants to the Company that:
(a) The Agent is a member in good standing of the National
Association of Securities Dealers, Inc. ("NASD") and that it is licensed as a
broker-dealer in any state in which it offers or sells any Units.
(b) The Agent will comply with all applicable provisions of the
Rules of Fair Practice of the NASD, including specifically Sections 8, 24,
and 36 of Article III of such Rules, in connection with this offering.
(c) The Agent will comply with all the applicable requirements of
the Securities Act of 1933 and the Securities and Exchange Act of 1934, as
amended, and the rules and regulations of the Securities and Exchange
Commission thereunder (the "1933 Act" or "1934 Act", respectively) in
connection with this offering.
2. OFFER AND SALE OF THE UNITS; FEES.
(a) It is expressly intended that the offer and sale of the Units
shall be on a "best efforts" basis, without any commitment by you to purchase
the Units, and that you shall be required to deliver payment for only such
Units as are sold to purchasers. Your appointment shall be nonexclusive and
the Company may engage other agents for sale of the Units, and will sell such
Units directly through its officers or directors or otherwise, in its sole
discretion. Each purchaser of Units shall be required to sign a Subscription
Agreement in a form acceptable to the Company, and the Company shall be
entitled to reject any proposed subscription for Units at the Company's sole
discretion. All proceeds of sales by you of Units shall be promptly remitted
by you to the Company, net of your commission as provided below.
(b) For your services as Agent, you shall receive from the
purchase price for the Units offered and sold by you or your registered
representatives a cash commission equal to ten percent (10%) of the aggregate
purchase price for the Units sold by you or your agents or employees.
(c) As additional compensation for your services as Agent, you
shall be entitled to receive from the Company a five year stock purchase
warrant in the form attached hereto as Exhibit A (the "Agent's Warrant")
entitling you to purchase one share of Company Common Stock at an exercise
price of $1.50 per share for each Unit sold by you.
3. INDEMNIFICATION.
(a) The Company will indemnify and hold harmless you and each
person, if any, who controls you within the meaning of Section 15 of the 1933
Act and their respective successors (hereinafter in this paragraph 3
separately and collectively called the "defendants") from and against any and
all losses, claims, damages or liabilities, joint or several, to which the
defendants may become subject under the 1933 Act, at common law or otherwise
(including any legal or other expenses reasonably incurred in connection
therewith), insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
offering documents provided by the Company in connection with the sale of the
Units (as from time to time amended or supplemented) or arise out of or are
based upon the omission or alleged omission to state therein a material fact
that is required to be stated therein or necessary to make the statement
therein, in the light of the circumstances under which they were made, not
misleading, unless such statement or omission was made in reliance upon and
in conformity with information furnished in writing to the Company in
connection therewith by you expressly for use therein, provided, that this
indemnity agreement is subject to the condition that notice be given as
provided in Subparagraph (b) below.
(b) Upon the presentation in writing of any claim or the
commencement of any suit against any defendant in respect of which indemnity
may be sought from the Company on account of its agreement contained in
paragraph (a) above, such defendant shall promptly give notice in writing of
such claim or suit to the indemnifying party, but failure so to give such
notice shall not relieve the indemnifying party from any liability that it
may otherwise have to the defendant otherwise than on account of said
indemnity agreement. The indemnifying party shall be entitled to participate
at its own expense in the defense, or, if it so elects, to assume the
defense, of any such claim or suit, but if the indemnifying party elects to
assume the defense, such defense shall be conducted by counsel chosen by it
and reasonably satisfactory to the defendants who are parties to such suit or
against whom such claim is presented. If the indemnifying party elects to
assume the defense and retain such counsel, such defendants shall bear the
fees and expenses subsequently incurred of any additional counsel retained by
them. The Company agrees to notify you promptly, as soon as it has knowledge
thereof, of the commencement of any litigation or proceedings against the
Company, or any of its directors or officers, in connection with the issue or
sale of the Units.
(c) To the same extent as the foregoing indemnity contained in
paragraph 3(a) from the Company to you and each person, if any, who controls
you, you agree to indemnify and hold harmless the Company and each of the
directors and officers of the Company and each person, if any, who controls
any of them within the meaning of Section 15 of the 1933 Act, and their
respective successors (hereinafter in this paragraph 3(c) separately and
collectively called the "defendants"), but only with reference to information
furnished by you expressly for use in the Offering. In case any such claim
shall be presented in writing or any suit shall be brought against any of the
defendants in respect of which indemnity may be sought from you on account of
your agreement contained in this paragraph 3(c), you shall have the rights
and duties given to the Company in paragraph 3(b), and the defendants shall
have the rights and duties given by paragraph 3(b) to the persons therein
referred to as "defendants."
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4. EFFECTIVE DATE AND TERMINATION DATE.
(a) This Agency Agreement shall become effective on the date of
execution of this Agency Agreement by the Company and the Agent.
(b) This Agency Agreement shall terminate 120 days after the date
hereof unless extended by agreement of the parties.
5. NOTICES. Except as otherwise expressly provided in this Agreement,
all notices and other communications hereunder shall be in writing, and if
given to you, the Agent, shall be mailed, delivered or telegraphed at the
address set forth below, or if given to the Company, shall be mailed or
delivered to the Company at 0000 Xxxx 00xx Xxxxxx, Xxxxx, Xxxxxxxxx
00000-0000.
6. MISCELLANEOUS. This Agreement shall inure to the benefit of, and
be binding upon, the successors of you and of the Company. Nothing expressed
or mentioned in this Agreement is intended or shall be construed to give any
person or corporation, other than the parties hereto and their successors and
the controlling persons and directors and officers referred to in paragraph
3, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision. The term "successors" shall not include any
purchaser of Units merely by reason of such purchase. This Agreement shall
be governed by and construed in accordance with the laws of the State of
Minnesota.
If the foregoing expresses our agreement with you, kindly confirm by
signing the acceptance on the enclosed counterpart hereof and return the same
to us, whereupon this letter and your acceptance shall become and constitute
a binding agreement between the Company and you, in accordance with its terms.
Very truly yours,
PREMIUM RESTAURANT COMPANY
By
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Xxxxxxx X. Xxxxxxx, President
The foregoing Agency Agreement is hereby confirmed and accepted as of the
date first above written.
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By
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Its
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Address:
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