EXHIBIT 4.7
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1,500,000 SHARES OF COMMON STOCK
AND
1,500,000 REDEEMABLE COMMON STOCK PURCHASE WARRANTS*
(TO BE SOLD INITIALLY AS UNITS, EACH UNIT CONSISTING OF
ONE SHARE OF COMMON STOCK AND
ONE REDEEMABLE COMMON STOCK PURCHASE WARRANT)
GALACTICOMM TECHNOLOGIES, INC.
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AGREEMENT AMONG UNDERWRITERS
INCLUDING
UNDERWRITING AGREEMENT
AND
SELECTED DEALERS AGREEMENT
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SECURITY CAPITAL TRADING, INC.
FIRST EQUITY CORPORATION OF FLORIDA
_____________, 1998
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* Plus options to purchase a maximum of 225,000 additional shares of
Common Stock and/or 225,000 additional Redeemable Common Stock Purchase
Warrants, solely to cover over-allotments.
1,500,000 SHARES OF COMMON STOCK
AND
1,500,000 REDEEMABLE COMMON STOCK PURCHASE WARRANTS*
(to be sold initially as units, each unit consisting of
one share of Common Stock and
one Redeemable Common Stock Purchase Warrant)
GALACTICOMM TECHNOLOGIES, INC.
AGREEMENT AMONG UNDERWRITERS
[_________], 1998
SECURITY CAPITAL TRADING, INC.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
FIRST EQUITY CORPORATION OF FLORIDA
000 Xxxxxxxx Xxxxxx
Xxxxx X0
Xxxxx, Xxxxxxx 00000
As Representatives of the several
Underwriters named in Schedule 1
to Exhibit A annexed hereto
Dear Sirs:
We understand that Galacticomm Technologies, Inc., a Florida
corporation (the "Company"), desires to enter into an agreement, substantially
in the form of Exhibit A hereto (the "Underwriting Agreement"). The Underwriting
Agreement provides for the sale by the Company to you and the other prospective
Underwriters named in Schedule I to the Underwriting Agreement, severally and
not jointly, of an aggregate of (i) One Million Five Hundred Thousand
(1,500,000) shares (sometimes collectively referred to herein as the "Firm
Shares"), of the Company's authorized but unissued common stock (each a
"Share"), par value $.0001 per share (the "Common Stock") and (ii) One Million
Five Hundred Thousand (1,500,000) (sometimes collectively referred to herein as
the
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* Plus options to purchase a maximum of 225,000 additional shares of
Common Stock and/or 225,000 additional Redeemable Common Stock Purchase
Warrants, solely to cover over-allotments.
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"Firm Warrants") Redeemable Common Stock Purchase Warrants (the "Warrants"),
each Warrant entitling the holder thereof to purchase one (1) share of Common
Stock. In addition, pursuant to the Underwriting Agreement, the Company will
grant to the Underwriters options to purchase up to an additional Two Hundred
Twenty Five Thousand (225,000) Shares (such Shares, "Option Shares") and/or an
additional Two Hundred Twenty Five Thousand (225,000) Warrants (such Warrants,
"Option Warrants") for the sole purpose of covering over-allotments in
connection with the sale of the Firm Shares and the Firm Warrants. The Firm
Shares and the Firm Warrants are sometimes collectively referred to herein as
the "Firm Securities"; the Option Shares ad the Option Warrants are sometimes
collectively referred to herein as the "Option Securities." The Firm Securities
and the Option Securities are hereinafter sometimes collectively referred to as
the "Securities."
We understand that changes may be made in those who are to be
Underwriters and in the respective number of Securities to be purchased by them,
but that the number of Securities to be purchased by us as set forth in Schedule
I to the Underwriting Agreement will not be changed without our consent except
as provided herein or in the Underwriting Agreement. The parties on whose behalf
you execute the Underwriting Agreement are herein called the "Underwriters."
We desire to confirm the agreement among you, the undersigned and the
other Underwriters with respect to the purchase of the Securities by the
Underwriters, severally and not jointly, from the Company. The aggregate number
of Securities which any Underwriter will be obligated to purchase from the
Company pursuant to the terms of the Underwriting Agreement is herein called the
"Underwriting Obligation" of that Underwriter. The Securities are being sold
initially as a unit, each unit consisting of one Share and one Warrant, and will
be detachable and separately transferable immediately following the completion
of the offering. Accordingly, the Underwriting Obligation of each Underwriter
will be for the purchase of an equal number of Shares and Warrants.
1. AUTHORITY AND COMPENSATION OF REPRESENTATIVES. We hereby authorize
you, as our representatives (the "Representatives") and on our behalf, (a) to
enter into the Underwriting Agreement with the Company, with such changes
therein as in your judgment will not be materially adverse to the Underwriters,
and to determine the initial public offering price per Share and per Warrant and
the Underwriters' gross spread for the Shares and the Warrants, (b) to exercise
all the authority and discretion vested in the Underwriters and in you by the
provisions of the Underwriting Agreement, (c) to take all such action as you in
your discretion may deem necessary or advisable in order to carry out the
provisions of the Underwriting Agreement and of this Agreement, and the sale and
distribution of the Securities, and (d) to determine all matters relating to the
public advertisement of the Securities. We will be bound by all terms of the
Underwriting Agreement as executed. If there are two representatives, your
authority may be exercised jointly or by either of you acting alone.
As our share of the compensation for your services in connection with
managing the offering and sale of the Securities hereunder, we will pay to you,
and we authorize you to charge to our account on the Closing Date and on the
Option Closing Date referred to in the Underwriting Agreement, $[_____] per
Share in respect of the aggregate number of Firm Shares and Option Shares,
respectively, and $[________] per Warrant in respect of the aggregate number of
Firm
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Warrants and Option Warrants, respectively which we shall agree to purchase
pursuant to the Underwriting Agreement.
2. PUBLIC OFFERING OF SECURITIES. The sale of the Securities to the
public is to be made, as herein provided, as soon after the registration
statement relating to the Securities becomes effective as in your judgment is
advisable. The purchase price to be paid by the Underwriters for the Securities
and the public offering price are to be determined by agreement between you and
the Company. The Securities shall be first offered to the public at the public
offering price as so determined. You will advise us by telegraph or telephone
when the Securities shall be released for offering, when the registration
statement relating to the Securities shall become effective and the price at
which the Securities are to be offered. We agree not to sell any of the
Securities until you have released them for that purpose. We authorize you,
after the initial public offering, to change the public offering price, the
concession and the reallowance if, in your sole discretion, such action becomes
desirable by reason of changes in general market conditions or otherwise. As
used herein, the terms "Registration Statement," "Preliminary Prospectus" and
"Prospectus" shall have the meanings ascribed thereto in the Underwriting
Agreement. The public offering price at the time in effect is herein called the
"Offering Price." After notice from you that the Securities are released for
public sale, we will offer to the public in conformity with the provisions
hereof and with the terms of offering set forth in the Prospectus such of our
Securities as you advise us are not reserved. We agree not to offer or sell any
of the Securities to persons over whose accounts we exercise investment
discretion without their specific advance consent.
3. OFFERING TO DEALERS AND RETAIL SALES. We authorize you to reserve
for offering and sale, and on our behalf to sell, to retail purchasers (such
sales being herein called "Retail Sales") and to dealers selected by you (such
dealers, among whom any Underwriter may be included, being herein called
"Selected Dealers") all or any part of our Securities as you, in your sole
discretion, shall determine. Such sales, if any, shall be made (a) in the case
of Retail Sales, at the Offering Price, and (b) in the case of sales to Selected
Dealers, at the Offering Price less such concession or concessions as you, in
your sole discretion, shall determine. Except for such sales as are designated
by a purchaser to be for the account of a particular Underwriter or Selected
Dealer, any sales to Selected Dealers made for our account shall be as nearly as
practicable in the ratio that the Common Stock reserved for our account for
offering to Selected Dealers bears to the aggregate of all Common Stock of all
Underwriters so reserved.
You agree to notify us promptly on the date of the public offering as
to the number of Securities, if any, which we may retain for direct sale by us.
Prior to the termination of the provisions referred to in Section 13 hereof, you
may reserve for offering and sale as hereinbefore provided any Securities
theretofore retained by us remaining unsold and we may, with your consent,
retain any Securities theretofore reserved by you remaining unsold.
We agree that, from time to time prior to the termination of the
provisions referred to in Section 13 hereof, we shall furnish to you such
information as you request in order to determine the number of Securities
purchased by us under the Underwriting Agreement which then remain unsold,
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and we shall upon your request sell to you for the account of any Underwriter as
many of such unsold Securities as you may designate at the Offering Price, less
all or any part of the concession to Selected Dealers as you, in your sole
discretion, shall determine. The provisions of Section 4 hereof shall not be
applicable in respect of any such sale.
We authorize you to determine the form and manner of any communications
or agreements with Selected Dealers. In the event that there shall be any
agreements with Selected Dealers, you are authorized to act as manager
thereunder and we agree, in such event, to be governed by the terms and
conditions of such agreements. The form of Selected Dealers Agreement attached
hereto as Exhibit B is satisfactory to us.
It is understood that any Selected Dealer to whom an offer may be made
as hereinbefore provided shall be actually engaged in the investment banking or
securities business and shall be either (i) a member in good standing of the
National Association of Securities Dealers, Inc. (the "NASD"), or (ii) a dealer
with its principal place of business located outside the United States, its
territories and its possessions and not eligible for membership in the NASD nor
registered as a broker or dealer under the Securities Exchange Act of 1934, as
amended (the "1934 Act"), who agrees not to make any sales within the United
States, its territories or its possessions or to persons who are nationals
thereof or residents therein. Each Selected Dealer shall agree to comply with
the provisions of Rule 2740 of the Conduct Rules of the NASD, and each foreign
Selected Dealer who is not a member of the NASD also shall agree to comply with
the NASD's interpretation with respect to free-riding and withholding, to
comply, as though it were a member of the NASD, with the provision of Rule 2730
and 2750 of such Rules and to comply with Rule 2420 thereof as that Section
applies to a non-member foreign dealer. The several Underwriters may allow, and
the Selected Dealers, if any, may re-allow, such concession or concessions as
you may determine from time to time on sales of Securities to any qualified
dealer, all subject to the Conduct Rules of the NASD.
You, and any of the several Underwriters with your prior consent, may
make purchases or sales of the Securities from or to any of the other
Underwriters, at the Offering Price less all or any part of the gross spread,
and from or to any of the Selected Dealers at the Offering Price less all or any
part of the concession to Selected Dealers.
Upon your request, we will advise you of the identity of any dealer to
whom we allow such a discount and any Underwriter or Selected Dealer from whom
we receive such a discount.
4. REPURCHASES IN THE OPEN MARKET. Any Securities sold by us (other
than through you) which shall be contracted for or purchased in the open market
by you on behalf of any Underwriter or Underwriters shall be repurchased by us
on demand at a price equal to the cost of such purchase plus commissions and
taxes on redelivery. Any Securities delivered on such repurchase need not be
evidenced by the identical Securities originally sold by us. In lieu of delivery
of such Securities to us, you may sell such Securities in any manner for our
account and charge us with the amount of any loss or expense or credit us with
the amount of any profit, less any expense, resulting from such sale, or charge
our account with an amount not in excess of the concession to Selected Dealers.
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5. DELIVERY AND PAYMENT. Upon your request, we shall deliver to you
payment for the Securities to be purchased by us under the Underwriting
Agreement in an amount equal to the Offering Price for such Securities less the
concession to Selected Dealers. Such payment shall be made in such form and at
such time and place as may be specified in such request, and we authorize you to
make payment for such Securities against delivery thereof for our account
hereunder. If we are a member of or clear through a member of The Depository
Trust Company ("DTC"), you may, in your discretion, deliver our Securities
through the facilities of DTC.
In the event that the Underwriting Agreement provides for the payment
of a commission or other compensation to the Underwriters, we authorize you to
receive such commission or other compensation for our account. You shall remit
to us, as promptly as practicable, the amounts received by you from Selected
Dealers and retail purchasers as payment in respect of Securities sold by you
for our account pursuant to Section 3 hereof for which payment has been
received. Securities purchased by us under the Underwriting Agreement and not
reserved or sold by you for our account pursuant to Section 3 hereof shall be
delivered to us as promptly as practicable after receipt by you. Any Securities
purchased by us and so reserved which remain unsold at any time prior to the
settlement of accounts hereunder may, in your discretion, and shall, upon your
request, be delivered to us, but, until termination of the Selected Dealer
Agreements and of other selling arrangements, such delivery shall be for
carrying purposes only. In case any Securities reserved for sale in Retail Sales
or to Selected Dealers shall not be purchased and paid for in due course as
contemplated hereby, we agree (a) to accept delivery when tendered by you of any
Securities so reserved for our account and not so purchased and paid for, and
(b) in case we shall have received payment from you in respect of any such
Securities, to reimburse you on demand for the full amount which you shall have
paid us in respect of such Securities.
In the event of our failure to tender payment for Securities as
provided in the Underwriting Agreement, you shall have the right under the
provisions thereof to arrange for other persons, who may include you and any
other Underwriter, to purchase such Securities which we had agreed to purchase,
but without relieving us from liability for our default.
6. AUTHORITY TO BORROW. We authorize you (to the extent permitted by
law) to advance your funds for our account (charging current interest rates) and
as Representatives to arrange loans for our account or the account of the
Underwriters for the purpose of carrying out this Agreement, and in connection
therewith to execute and deliver any notes or other instruments and to hold or
pledge as security therefor all or any part of our Securities or any securities
purchased hereunder for our account. Any lender is hereby authorized to accept
your instructions in all matters relating to such loans. Any part of our
Securities or any securities purchased hereunder for our account, so held by you
may be delivered to us for carrying purposes and, if so delivered, will be
redelivered to you upon demand.
7. ALLOCATION OF EXPENSES AND LIABILITY. We authorize you to charge our
account with and we agree to pay (a) all transfer taxes on sales made by you for
our account, except as herein
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otherwise provided, and (b) our proportionate share (based on our Underwriting
Obligation) of all expenses incurred by you in connection with the purchase,
carrying, sale and distribution of the Securities and all other expenses arising
under the terms of the Underwriting Agreement or this Agreement. Your
determination of such expenses and your allocation thereof shall be final and
conclusive. You may at any time make partial distributions of credit balances or
call for payment of debit balances. Funds for our account at any time in your
hands may be held in your general funds without accountability for interest. As
soon as practicable after the termination of this Agreement, the net credit or
debit balance in our account, after proper charge and credit for all interim
payment and receipt, shall be paid to or paid by us, provided that you may
establish such reserve as you, in your sole discretion, shall deem advisable to
cover possible additional expenses chargeable to the several Underwriters.
Notwithstanding any settlement, we will remain liable for any taxes on transfers
for our account and for our proportionate share (based on our Underwriting
Obligation) of all expenses and liabilities that may be incurred for the
accounts of the Underwriters.
8. LIABILITY FOR FUTURE CLAIMS. Neither any statement by you of any
credit or debit balance in our account nor any reservation from distribution to
cover possible additional expenses relating to the Securities shall constitute
any representation by you as to the existence or non-existence of possible
unforeseen expenses or liabilities of or charges against the several
Underwriters. Notwithstanding the distribution of any net credit balance to us
or the termination of this Agreement or both, we shall be and remain liable for,
and will pay on demand, (a) our proportionate share (based on our Underwriting
Obligation) of all expenses and liabilities which may be incurred by or for the
accounts of the Underwriters, or any of them, including any liability which may
be incurred by or for the accounts of the Underwriters, or any of them, based on
the claim that the Underwriters constitute an association, unincorporated
business, partnership or any separate entity, and (b) any transfer taxes paid in
settlement on account of any sale or transfer for our account.
9. STABILIZATION AND OVER-ALLOTMENT. We authorize you (a) to make
purchases and sales of Securities, or any securities comprising the Securities,
in the open market or otherwise, for long or short account, and on such terms
and at such prices as you, in your sole discretion, shall deem advisable, (b) in
arranging for sales of the Securities, to over-allot, and (c) either before or
after the termination of this Agreement, to cover any short position or
liquidate any long position incurred pursuant to this Section 9, subject,
however, to the applicable rules and regulations of the Securities and Exchange
Commission (the "Commission") under the 1934 Act. All such purchases and sales
and overallotments shall be made for the account of the several Underwriters as
nearly as practicable in proportion to their respective Underwriting
Obligations; provided, however, that our net position resulting from such
purchases and sales and over-allotments shall not at the time of each such
purchase or sale or over-allotment exceed, for either long or short account, 15%
of the aggregate amount which we shall become obligated to pay in respect of the
total number of Firm Securities and Option Securities purchased for our account.
We agree to take up at cost on demand any Securities purchased for our account
pursuant to this Section 9 and to deliver on demand any of such Securities so
sold or any Securities over-allotted for our account pursuant to this Section 9.
The provisions of this Section 9 do not constitute an assurance that the price
of the Securities will be stabilized or that stabilization, if commenced, may
not be discontinued at any time.
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If you effect any stabilizing purchase pursuant to this Section 9, you
will promptly notify us of the date and time when the first stabilizing purchase
was effected and the date and time when stabilizing was terminated pursuant to
Rule 17a-2(c)(2) and (3) under the 1934 Act. You will file with the Commission
such reports of and transfers made for the account of the Underwriters pursuant
to this Section 9 as are required to be filed by you under applicable securities
laws and regulations.
We agree that stabilizing by us may be effected only with your consent.
If we effect any stabilizing purchase described in this Section 9, we will,
within three business days following such purchase, notify you of the price,
date and time at which such stabilizing purchase or syndicate covering
transaction was effected, and shall in addition notify you of the date and time
when such stabilizing purchase or syndicate covering transaction was terminated
pursuant to Rule 17a-2(d) under the 1934 Act. You shall maintain such
notifications in a separate file for a period of not less than three years, the
first two years in an easily accessible place.
10. OPEN MARKET TRANSACTIONS. We agree that we will not make bids or
offers, or make or induce purchases or sales for our own account or the accounts
of customers, in the open market or otherwise, either before or after the
purchase of the Securities and for either long or short account, of any
Securities, or any securities comprising the Securities, except (i) as provided
in this Agreement, the Underwriting Agreement and the Selected Dealer Agreement
or otherwise approved by you and (ii) in brokerage transactions not involving
solicitation of the customer's order. We further agree that we will not lend,
either before or after the purchase of the Securities, to any customer,
Underwriter, Selected Dealer or to any other securities broker or dealer any
Securities. We will at all times comply with Regulation M under the 1934 Act and
Rule 139 of the 1933 Act (hereinafter defined), each as interpreted by the
Commission.
11. BLUE SKY. Prior to the initial offering by the Underwriters, you
will inform us as to the states and other jurisdictions under the respective
securities or blue sky laws of which it is believed that the Securities have
been qualified for sale or are exempt from such qualification, but you do not
assume any responsibility or obligation as to the accuracy of such information
or as to the right of any Underwriter or dealer to offer or sell the Securities
in any state or other jurisdiction. You agree to file or cause to be filed, on
behalf of the Underwriters, a Further State Notice in respect of the Securities
under the laws of the State of New York, if necessary.
12. DEFAULT BY UNDERWRITERS. Default by one or more Underwriters in
respect of their obligations under the Underwriting Agreement shall not release
us from any of our obligations or in any way affect the liability of any
defaulting Underwriter to the other Underwriters for damages resulting from such
default. In the event of such default by one or more Underwriters, you are
authorized to increase, pro rata with the other non-defaulting Underwriters, the
amount of Securities which we shall be obligated to purchase from the Company;
provided, however, that the aggregate amount of all such increases for all
non-defaulting Underwriters shall not exceed 10% of the Securities, and, if the
aggregate amount of the Securities not taken up by such defaulting Underwriters
exceeds such 10%, you are further authorized, but shall not be obligated, to
arrange
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for the purchase by other persons, who may include you and other non-defaulting
Underwriters, of all or a portion of the Securities not taken up by such
Underwriters. In the event any such increases or arrangements are made, the
respective amounts of the Securities to be purchased by the non-defaulting
Underwriters and by any such other person or persons shall be taken as the basis
for the Underwriters' Obligations under this Agreement, but this shall not in
any way affect the liability of any defaulting Underwriter to the other
Underwriters for damages resulting from such default nor shall any such default
relieve any other Underwriter of any of its obligations hereunder or under the
Underwriting Agreement except as herein or therein provided.
In the event of default by one or more Underwriters in respect of their
obligations under this Agreement to take up and pay for any Securities purchased
by you for their respective accounts pursuant to Section 9 hereof, or to deliver
any such Securities sold or over-allotted by you for their respective accounts
pursuant to any provision of this Agreement, and to the extent that arrangements
shall not have been made by you for other persons to assume the obligations of
such defaulting Underwriter or Underwriters, each non-defaulting Underwriter
shall assume its proportionate share of the aforesaid obligations of each such
defaulting Underwriter without relieving any such defaulting Underwriter of its
liability therefor.
13. TERMINATION. Section 2, the second paragraph and the first sentence
of the third paragraph of Section 3, Section 4, the first sentence of Section 9
(other than clause (c) thereof) and Section 10 hereof will terminate at the
close of business on the 30th calendar day after the effective date of the
Registration Statement, unless extended or sooner terminated as hereinafter
provided. You may extend such provisions, or any of them, for a period not to
exceed 30 additional calendar days by notice to us to such effect. You may
terminate any of such provisions at any time by notice to us, and you may
terminate all such provisions at any time by notice to us to the effect that the
offering provisions of this Agreement are terminated. No termination or
suspension pursuant to this Section shall affect your authority under Section 9
to cover any short position under this Agreement. All other provisions of this
Agreement shall survive the termination of such provisions and shall remain
operative and in full force and effect.
14. GENERAL POSITION OF THE REPRESENTATIVES. In taking action under
this Agreement, you shall act only as agent of the several Underwriters. Your
authority shall include the taking of such action as you may deem advisable in
respect of all matters pertaining to any and all offers and sales of the
Securities, including the right to make any modifications which you consider
necessary or desirable in the arrangements with Selected Dealers or others. You
shall be under no liability for or in respect of the value of the Securities or
the validity or the form thereof, the Registration Statement, the Prospectus or
agreements or other instruments executed by the Company or others; or for or in
respect of the delivery of the Securities; or for the performance by the Company
or others of any agreement on its or their part; nor shall you, as
representative or otherwise, be liable under any of the provisions hereof or for
any matters connected herewith, except for want of good faith, and except for
any liability arising under the Securities Act of 1933, as amended (the "1933
Act"); and only obligations expressly assumed by you as Representative herein
shall be implied from this Agreement. In representing the Underwriters
hereunder, you shall act as the Representatives of each
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of them respectively. Nothing herein contained shall constitute the several
Underwriters partners with you or with each other, or render any Underwriter
liable for the commitments of any other Underwriter, except as otherwise
provided in Section 12 hereof and in Section 8 of the Underwriting Agreement. If
the Underwriters shall be deemed to constitute a partnership for Federal income
tax purposes, it is the intent of each Underwriter to be excluded from the
application of Subchapter K, Chapter 1, Subtitle A, of the Internal Revenue Code
of 1986, as amended. Each Underwriter elects to be so excluded and agrees not to
take any position inconsistent with such election. Each Underwriter authorizes
you, in your discretion, to execute and file on behalf of the Underwriters such
evidence of election as may be required by the Internal Revenue Service. The
commitments and liabilities of each of the several Underwriters are several in
accordance with their respective Underwriting Obligations and are not joint.
Notwithstanding any settlement of accounts under this Agreement, we agree to pay
our underwriting proportion of the amount of any tax, claim, demand or liability
which may be asserted against and discharged by the Underwriters, or any of
them, based on the claim that the Underwriters, or any of them, constitute a
partnership, association, or separate entity, and also to pay our underwriting
proportion of expenses approved by you incurred by the Underwriters, or any of
them, in contesting any such taxes, claims, demands or liabilities.
15. ACKNOWLEDGMENT OF RECEIPT OF REGISTRATION STATEMENT, ETC. We hereby
confirm that we have examined the Registration Statement relating to the
Securities as heretofore filed by the Company with the Commission and each
amendment thereto, if any, filed through the date hereof, including any
documents filed under the 1934 Act through the date hereof and incorporated by
reference into the Prospectus, that we are willing to be named as an underwriter
therein and to accept the responsibilities of an underwriter thereunder, and
that we are willing to proceed as therein contemplated. We confirm that we have
authorized you to advise the Company on our behalf (a) as to the statements to
be included in any Preliminary Prospectus and in the Prospectus under the
heading "Underwriting" insofar as they relate to us, and (b) that there is no
other information about us required to be stated in the Registration Statement
or Prospectus. We understand that the aforementioned documents are subject to
further change and that we will be supplied with copies of any further
amendments or supplements to the Registration Statement, of any document filed
under the 1934 Act after the effective date of the Registration Statement and
before termination of the offering of the Securities by the Underwriters if such
document is deemed to be incorporated by reference into the Prospectus and of
any amended or supplemented Prospectus promptly, if and when received by you,
but the making of such changes, amendments and supplements shall not release us
or affect our obligations hereunder or under the Underwriting Agreement.
16. (a) INDEMNITY. We agree to indemnify and hold harmless each other
Underwriter (including you) and any person who controls any such Underwriter
within the meaning of Section 15 of the 1933 Act, to the extent that, and upon
the terms on which, we agree to indemnify and hold harmless the Company and
other specified persons as set forth in the Underwriting Agreement. Our
indemnity agreement contained in this Section 16 shall remain in full force and
effect regardless of any investigation made by or on behalf of such other
Underwriter or controlling person and shall survive the delivery of any payment
for the Securities and the termination of this Agreement and the similar
agreements entered into with the other Underwriters.
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(b) CLAIMS AGAINST UNDERWRITERS. Each Underwriter (including
you) will pay, upon your request, as contribution, its proportionate share,
based upon its Underwriting Obligation, of any loss, claim, damage or liability,
joint or several, paid or incurred by any Underwriter (including you) to any
person other than an Underwriter, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement, the Prospectus, any amendment or supplement thereto or
any Preliminary Prospectus or any other selling or advertising material approved
by you for use by the Underwriters in connection with the sale of the
Securities, 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 (other than an untrue statement or alleged untrue statement or
omission or alleged omission made in conformity with written information
furnished to the Company through you by or on behalf of an Underwriter expressly
for use therein) or relating to any transaction contemplated by this Agreement;
and will pay such proportionate share of any legal or other expense reasonably
incurred by you or with your consent in connection with investigating or
defending against any such loss, claim, damage or liability, or any action in
respect thereof. In determining the amount of our obligation under this
paragraph, appropriate adjustment may be made by you to reflect any amounts
received by any one or more Underwriters in respect of such claim from the
Company pursuant to Section 8 of the Underwriting Agreement or otherwise. There
shall be credited against any amount paid or payable by us pursuant to this
paragraph any loss, claim, damage, liability or expense which is incurred by us
as a result of any such claims asserted against us, and if such loss, claim,
damage, liability or expense is incurred by us subsequent to any payment by us
pursuant to this paragraph, appropriate provision shall be made to effect such
credit, by refund or otherwise. If any such claim is asserted, you may take such
action in connection therewith as you deem necessary or desirable, including
retention of counsel for the Underwriters, and in your discretion separate
counsel for any particular Underwriter or group of Underwriters, and the fees
and disbursements of any counsel so retained by you shall be included in the
amounts payable pursuant to this paragraph. In determining amounts payable
pursuant to this paragraph, any loss, claim, damage, liability or expense
incurred by any person who controls any Underwriter within the meaning of
Section 15 of the 1933 Act which has been incurred by reason of such control
relationship shall be deemed to have been incurred by such Underwriter. Any
Underwriter may elect to retain, at its own expense, its own counsel. You may
settle or consent to the settlement of any such claim on advice of counsel
retained by you. Whenever you receive notice of the assertion of any claim to
which the provisions of this paragraph would be applicable, you will give prompt
notice thereof to each Underwriter. If any Underwriter or Underwriters default
in its or their obligation to make any payments under this paragraph, each
non-defaulting Underwriter shall be obligated to pay its proportionate share of
all defaulted payments, based upon the proportion such non-defaulting
Underwriter's Underwriting Obligation bears to the Underwriting Obligations of
all non-defaulting Underwriters. Nothing herein shall relieve a defaulting
Underwriter from liability for its default.
17. CAPITAL REQUIREMENTS. We confirm that the incurrence by us of our
obligations under this Agreement and under the Underwriting Agreement will not
place us in violation of the net capital requirements of Rule 15c3-1 under the
1934 Act or of any applicable rules relating to capital
-10AAU-
requirements of any securities exchange to which we are subject and agree to
purchase the Securities that we are obligated to purchase hereunder and under
the Underwriting Agreement.
18. UNDERTAKING TO MAIL PROSPECTUSES. We represent to you that we have
taken all action on our part required to have been taken to satisfy the policy
set forth in Release No. 4968 of the Commission under the 1933 Act, including
the distribution in the manner and at or prior to the time set forth in such
Release, of copies of the Preliminary Prospectus relating to the Securities (or,
if you have so requested, copies of any revised Preliminary Prospectus) to all
persons to whom we expect to mail confirmation of sale.
As contemplated by Rule 15c2-8 under the 1934 Act, you agree to mail a
copy of the Prospectus mentioned in the Underwriting Agreement to any person
making a written request therefor during the period referred to in said Rule,
the mailing to be made to the address given in the request. We confirm that we
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 Prospectuses required to be delivered
thereunder. We have kept (and will provide a copy to you upon your request) an
accurate record of the distribution (including dates, number of copies and
persons to whom sent) by us of the Preliminary Prospectus and revised
Preliminary Prospectuses, if any. We acknowledge that the copies of the
Preliminary Prospectus furnished to us have been distributed to dealers who have
been notified of the foregoing requirements pertaining to the delivery of
Preliminary Prospectuses and Prospectuses. You have heretofore delivered to us
such number of copies of Preliminary Prospectuses as have been reasonably
requested by us, receipt of which is hereby acknowledged, and will deliver such
number of copies of Prospectuses as will be reasonably requested by us.
19. MISCELLANEOUS. Any notice hereunder from you to us or from us to
you shall be deemed to have been duly given if sent by registered mail, telegram
or teletype, to us at our address as set forth in our Underwriters'
Questionnaire previously delivered to you (the answers in which you may rely
upon), or to you at the address of Security Capital Trading, Inc., 000 Xxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Syndicate Department.
We understand that you are a member in good standing of the NASD. We
hereby confirm that we are actually engaged in the investment banking or
securities business and are either (i) a member in good standing of the NASD or
(ii) a dealer with its principal place of business located outside the United
States, its territories and its possessions and not eligible for membership in
the NASD nor registered as a broker or dealer under the 1934 Act who agrees not
to make any sales within the United States, its territories or its possessions
or to persons who are nationals thereof or residents therein (except that we may
participate in sales to Selected Dealers and others under Section 3 of this
Agreement). We understand that any registration statement relating to a public
offering of the securities noted in the "Shares Eligible for Future Sale"
section of the Prospectus where NASD members participate in any underwritten
offering or transaction that takes securities "off the shelf" is responsible for
ensuring that a timely filing is made with the Corporate Financing Department of
the NASD of the documents required to be filed under Rules 2710 and 2720 of the
-11AAU-
NASD Conduct Rules. We hereby agree to comply with the provisions of Rule 2740
of the Conduct Rules of the NASD, and, if we are a foreign dealer and not a
member of the NASD, we also hereby agree to comply with the NASD's
Interpretation with respect to free-riding and withholding and to comply, as
though we were a member of the NASD, with Rules 2730 and 2750 of such Rules, and
to comply with Rule 2420 thereof as that Rule applies to a non-member foreign
dealer. We authorize you to file on our behalf with the NASD such documents and
information, if any, which are available or have been furnished to you for
filing pursuant to applicable rules, statements and interpretations of the NASD.
In connection with sales and offers to sell Securities made by us outside the
United States, its territories and possessions (i) we will either furnish to
each person to whom any such sale or offer is made a copy of the then current
Preliminary Prospectus or the Prospectus, as the case may be, or inform such
person that such Preliminary Prospectus or Prospectus will be available upon
request, and (ii) we will furnish to each person to whom any such sale or offer
is made such prospectus, advertisement or other offering document containing
information relating to the Securities or the Company as may be required under
the law of the jurisdiction in which such sale or offer is made. Any prospectus,
advertisement or other offering document furnished by us to any person in
accordance with the preceding sentence and any such additional offering material
as we may furnish to any person (x) shall comply in all respects with the law of
the jurisdiction in which it is furnished, (y) shall be prepared and so
furnished at our sole risk and expense, and (z) shall not contain information
relating to the Securities or the Company which is inconsistent in any respect
with the information contained in the then current Preliminary Prospectus or in
the Prospectus, as the case may be.
We understand that it is our responsibility to examine the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
preliminary prospectus and the material, if any, incorporated by reference
therein, and we will familiarize ourselves with the terms of the Securities and
the other terms of the offering which are to be reflected in the Prospectus. You
are authorized, with the approval of counsel for the Underwriters, to approve on
our behalf any amendments or supplements to the Registration Statement or the
Prospectus.
We confirm that the information that we have given or are deemed to
have given in response to the Underwriters' Questionnaire attached as Exhibit C
hereto (which information has been furnished to the Company for use in the
Registration Statement or the Prospectus) is correct. We will notify you
immediately if any development occurs before the termination of this Agreement
as to the offering which makes untrue or incomplete any information that we have
given or are deemed to have given in response to the Underwriters'
Questionnaire.
Unless we have promptly notified you in writing otherwise, our name as
it should appear in the Prospectus and our address are as set forth on the
signature page hereof.
We agree that if we are advised by you that the Company was not,
immediately prior to the filing of the Registration Statement, subject to the
requirements of Section 13(a) or 15(d) of the 1934 Act, we will not, without
your consent, sell any of the Securities to an account over which we exercise
discretionary authority.
-12AAU-
We will not advertise over our name until after the first public
advertisement made by you and then only at our own expense and risk. We
authorize you to exercise complete discretion and regard to the first public
advertisement.
In accordance with 1933 Act Release No. 4968, we will deliver copies of
each Preliminary Prospectus to all our salesmen before they offer Securities to
their clients, and we will deliver a Preliminary Prospectus to all persons to
whom we expect to mail confirmations of sales not less than 48 hours prior to
the time we expect to mail such confirmations.
This instrument may be signed by or on behalf of the Underwriters in
various counterparts which together shall constitute one and the same agreement
among all the Underwriters and shall become effective at such time as all the
Underwriters shall have signed or have had signed on their behalf such
counterparts and you shall have confirmed all such counterparts. You may confirm
such counterparts by facsimile signature.
This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida.
Please confirm that the foregoing correctly states the understanding
between us by signing and returning to us a counterpart hereof.
Very truly yours,
_____________________________________________
Name of Firm
By:
------------------------------------------
Name:
Title:
Address:______________________________________
______________________________________
______________________________________
-13AAU-
Confirmed as of the date first above written:
SECURITY CAPITAL TRADING, INC.
As Representative
By:
-------------------------------------------
Authorized Officer
FIRST EQUITY CORPORATION OF FLORIDA
As Representative
By:
-------------------------------------------
Authorized Officer
-14AAU-
EXHIBIT B
1,500,000 SHARES OF COMMON STOCK
AND
1,500,000 REDEEMABLE COMMON STOCK PURCHASE WARRANTS**
(to be sold initially as units, each unit consisting of
one share of Common Stock and
one Redeemable Common Stock Purchase Warrant)
GALACTICOMM TECHNOLOGIES, INC.
SELECTED DEALERS AGREEMENT
Miami, Florida
[______________], 1998
Dear Sirs:
We have delivered to you a Prospectus relating to the offering
Galacticomm Technologies, Inc., a Florida corporation (the "Company"), of the
number of shares of the Company's Common Stock, par value $.0001 (the "Shares")
and of the Company's Redeemable Common Stock Purchase Warrants (the "Warrants")
therein stated (the "Securities"). The undersigned and the other underwriters
(the "Underwriters") have severally agreed to purchase the Securities, subject
to the conditions specified in the Underwriting Agreement (the "Underwriting
Agreement") referred to in the Prospectus. The Securities are being sold
initially as a unit, each unit consisting of one Share and one Warrant, and will
be detachable and separately transferable immediately following the completion
of the offering.
Subject to the terms and conditions specified herein and to the
modification, withdrawal or cancellation of the offering without notice, and
subject to the terms and conditions of the Underwriting Agreement, one or more
of the Underwriters, acting through us, as representative, are severally
offering to certain dealers (the "Dealers") (included among whom may be any or
all of the Underwriters, their partners and subsidiaries) who are members of the
National Association of Securities Dealers, Inc. (the "NASD") or foreign dealers
registered under the Securities Exchange
--------
** Plus options to purchase a maximum of 225,000 additional Shares of
Common Stock and/or 225,000 additional Redeemable Common Stock Purchase
Warrants from the Company, solely to cover over-allotments.
Act of 1934, as amended (the "Exchange Act"), who shall agree in making sales of
the Securities in the United States to conform to the Conduct Rules of the NASD,
or, if not so registered, shall agree not to reoffer, resell or deliver the
Securities in the United States, its territories or possessions or to persons
who they have reason to believe are citizens thereof or residents therein,
unless they comply with the NASD's Interpretation with Respect to Free-Riding
and Withholding and comply, as though they were a member of the NASD, with the
provisions of Rules 2730, 2740 and 2750 of the NASD and with Rule 2420 thereof
as that section applies to a non-member foreign dealer, the opportunity to
purchase Shares at $[_________] per Share and $[________] per Warrant (the
"public offering price") less a concession to Dealers in the amount set forth in
the Prospectus under "Underwriting." This offer is extended to you only on
behalf of such of the Underwriters as may lawfully sell Securities to Dealers in
your State.
The offering to Dealers may be on the basis of a reservation of
Securities or an allotment against subscriptions. We shall advise you by
telegram or letter of the method and terms of the offering. Acceptance of any
reserved Securities, which must be sent by telegraph or in writing to us,
received by the time specified therefor in the offering telegram or letter, and
any application for additional Securities, will be subject to rejection as a
whole or in part. The subscription books for the offering to Dealers may be
closed by us at any time without notice and we reserve the right to reject any
subscription as a whole or in part. All subscriptions will be received subject
to prior sale.
Immediately upon receipt of the aforementioned telegram or letter, you
may reoffer the Securities purchased by you hereunder, subject to their receipt
and acceptance by the Underwriters, and upon the other terms and conditions set
forth herein and in the Prospectus. Securities purchased hereunder or pursuant
to the following sentence are to be offered to the public at the public offering
price, except that an amount not exceeding the amount set forth in the
Prospectus under "Underwriting" per Share and per Warrant may be allowed to any
member of the NASD (or to foreign dealers who are not eligible for such
membership but who agree to conform to the Conduct Rules of the NASD in making
sales to purchasers in the United States), acting as principal or as buyer's
agent, if such allowance is to be retained and not reallowed in whole or in
part. With our consent or after the books in respect of the offering to Dealers
have been closed, Dealers who are parties to this Agreement and Underwriters may
deal in Securities with each other at the public offering price less an amount
not exceeding the concession to Dealers. After the Securities are released for
sale to the public, we are authorized to vary the public offering price and
other selling terms.
The Securities confirmed to you are to be paid for at the public
offering price less the concession to Dealers at the offices of Security Capital
Trading, Inc. at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, prior
to 9:00 A.M., Miami, Florida time, on the Closing Date, as defined in the
Underwriting Agreement, by certified or official bank check payable in New York
Clearing House funds to our order against delivery of such Securities. Dealers
not located in Miami should arrange to have a Miami bank or correspondent accept
delivery of, and pay for, the Securities
2SDA
which they agree to purchase and should advise us immediately of the name of
such bank or correspondent.
In order to facilitate distribution of the Securities, we, for the
accounts of the Underwriters, during the term of the agreement among the
Underwriters, may, within the limits specified in such agreement, make purchases
and sales of Securities or any securities comprising the Securities (but are
without obligation to do so) in the open market or otherwise, for long or short
account, at such prices, in such amounts and in such manner as we may determine,
and, in arranging for the sale of Securities to Dealers, may overallot for the
accounts of the Underwriters, and may make purchases for the purposes of
covering such overallotments. This is not assurance that the price of Securities
will be stabilized or that stabilization, if commenced, will not be discontinued
at any time.
Your acceptance hereof shall constitute an obligation on your part to
purchase, upon the terms and conditions specified herein, the Securities
confirmed to you in respect hereof and to observe all of the terms and
conditions hereof. You agree that in reoffering the Securities you will comply
with all applicable requirements of the Securities Act of 1933, as amended, of
the Exchange Act, and of all applicable rules and regulations under the federal
securities laws and Rules of the NASD. If you fail to pay for the Securities
confirmed to you or fail to perform any of your other obligations hereunder, we
may, in our discretion and without demand, notice or legal proceedings, and in
addition to any and all remedies otherwise available to us and to the other
several Underwriters, (a) terminate any right or interest on your part
hereunder, and (b) at any time and from time to time sell, without notice to
you, any Securities then held for your account at public or private sale at such
price or prices and upon such terms and conditions as we may deem fair, and
apply the net proceeds so realized, as determined by us, toward payment of any
obligations in respect of which you are in default, and, notwithstanding any
action taken under (a) or (b) above, or both, you shall remain liable to the
Underwriters, severally, to the extent of their respective interests, or at our
election, to us for the respective accounts of the several Underwriters to a
like extent, for all loss and expense resulting from your default. At any such
sale or sales, any of the Underwriters may for its or their own account or for
the account of any other person become the purchaser of any Securities so sold,
free from any right or interest on your part in such Securities. A default by
one or more Dealers shall not release you from any obligation hereunder.
You agree that until termination of this Agreement you will advise us,
from time to time upon request, as to the number of Securities confirmed to you
hereunder which then remain unsold; and you further agree that, until
termination of this Agreement, you will upon our request sell to us for the
account of one or more of the Underwriters such number of such unsold Securities
as we may specify (in order to enable us to deliver Securities sold by or for
the account of one or more of the several Underwriters) at the public offering
price or, if agreeable to you, at the public offering price less an amount not
in excess of the concession to Dealers.
As representatives of the Underwriters, we shall have full authority to
take such action as we may deem advisable in respect to all matters pertaining
to the offering or arising hereunder. You are not authorized (a) by the Company
or by any of the Underwriters to give any information or to make
3SDA
any representations in connection with the offering or sale of the Securities
other than those contained in the Prospectus or (b) to act as agent for the
Company or for any of the Underwriters when offering the Securities to the
public or otherwise. Nothing contained herein shall constitute the Dealers as an
association or partnership with the Underwriters, with us or with each other, or
an unincorporated business or other separate entity.
We will advise you on request of the jurisdictions under the Blue Sky
or securities laws of which counsel for the Underwriters have advised us that
the Securities have been qualified for public offering and sale, or are exempt
from qualification. We shall, however, be under no responsibility whatsoever to
any Dealer with respect to the right of such Dealer to sell the Securities in
any jurisdiction.
We have undertaken and undertake to mail copies of the Prospectus upon
receipt of written request to the addresses stated in such requests. You confirm
that you have undertaken and undertake to do the same with regard to the
delivery of such copies to your associated persons and to other persons.
You agree to distribute, or cause us to distribute, a Preliminary
Prospectus to all persons reasonably expected to be purchasers of Securities
from you at least 48 hours prior to the time you expect to mail confirmation.
Neither we nor any Underwriter shall be under any liability (except for
our own want of good faith) for or in respect of the validity or value of, or
title to, any of the Securities, or any of the securities comprising the
Securities, the form of, or the statements contained in, or the validity of, the
Prospectus or any amendment or supplement thereto, or any other instruments
executed by or on behalf of the Company or others, the form or validity of the
Underwriting Agreement, the agreement among the Underwriters or this Agreement,
the delivery of the Securities, or any of the securities comprising the
Securities, the performance by the Company or others of any agreement on its or
their part or any matter in connection with any of the foregoing; provided,
however, that nothing in this paragraph shall be deemed to relieve us or any
Underwriter from any liability imposed by federal securities laws.
You confirm that you are familiar with the Interpretation of the Board
of Governors of the NASD with respect to Free-Riding and Withholding, and you
agree that you will comply with such Interpretation in offering and selling
Securities to the public.
You further represent that neither you nor any of your directors,
officers, partners or "persons associated with" you (as defined in the By-Laws
of the NASD), nor, to your knowledge any "related person" (as defined by the
NASD in Rule 2710 and the Corporate Financing Rules of the NASD) have
participated or intend to participate in any transaction or dealing as to which
documents or information are required to be filed with the NASD pursuant to such
Rules and as to which such documents or information have not been so filed as
required.
4SDA
All communications from you should be addressed to Security Capital
Trading, Inc. at 000 Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Syndicate Department. Any notice from us to you shall be deemed to
have been duly authorized by the Underwriters and to have been duly given if
mailed or telegraphed to you at the address to which this letter is addressed.
This Agreement shall terminate simultaneously with termination of the
agreement among the Underwriters, but it may be terminated by us at any time
theretofore without notice. Upon termination of this Agreement, all
authorizations, rights and obligations hereunder shall cease, except rights and
obligations accrued or unsatisfied at the date of termination. Notwithstanding
termination of this Agreement, you shall be liable for your proper proportion of
any transfer tax or other liability which may be asserted against us or any of
the Underwriters or Dealers purchasing Securities hereunder, based upon the
claim that the Dealers, or any of them, constitute a partnership, an
association, an unincorporated business or other separate entity.
If, before the termination of this Agreement, we shall purchase, or
contract to purchase, for the accounts of the Underwriters, in the open market
or otherwise, any Securities delivered to you pursuant hereto, you shall repay
to us, for the accounts of the Underwriters, the concession to Dealers with
respect to such Securities, and all brokerage commissions and transfer taxes
paid in connection with such purchase or contract to purchase.
Please confirm your agreement to abide by and conform to all the terms
and conditions of this Agreement by signing and returning at once the duplicate
copy enclosed herewith.
Yours very truly,
SECURITY CAPITAL TRADING, INC.
Representative of the Underwriters
By:
-------------------------------------------
Name:______________________________________
Title:_____________________________________
FIRST EQUITY CORPORATION OF FLORIDA
Representative of the Underwriters
By:
-------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Senior Vice President
Please execute Confirmation on next page.
5SDA
CONFIRMATION
Security Capital Trading, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
First Equity Corporation of Florida
000 Xxxxxxxx Xxxxxx
Xxxxx X0
Xxxxx, Xxxxxxx 00000
Dear Sirs:
We hereby confirm our agreement to purchase _____________________ of
the Shares and _______________ of the Warrants to which the foregoing Selected
Dealers Agreement relates, subject to your acceptance or rejection as a whole or
in part in case of a subscription or application in excess of any reservation,
and acknowledge that such purchase and the purchase of additional Shares and
Warrants, if any, prior to the termination of the Selected Dealers Agreement,
are subject to all the applicable terms and conditions thereof. We agree to
abide by and conform to the Selected Dealers Agreement and to your offering
telegram or letter referred to therein, and to take up and pay for such
Securities as therein provided. We acknowledge receipt of the Prospectus
relating to the Securities and we hereby confirm that in entering into the
Selected Dealers Agreement and in offering the Securities we have relied and
will rely upon the Prospectus and on no other statements whatsoever, written or
oral. We have made a record of our distribution of Preliminary Prospectuses and,
when furnished with copies of any revised Preliminary Prospectus, we have, upon
your request, promptly forwarded copies thereof to each person to whom we had
theretofore caused to be distributed Preliminary Prospectuses. We confirm that
we have complied and will comply with all of the requirements of Rule 15c2-8 of
the Securities Exchange Act of 1934. We further confirm that we are a member in
good standing of the National Association of Securities Dealers, Inc. and agree
to comply with all applicable rules of the NASD, including, without limitation,
Rules 2730, 2740 and 2750 of the NASD Conduct Rules, or, if we are not such a
member, that (i) we are a foreign dealer registered under the Securities
Exchange Act of 1934, as amended, and hereby agree that in making sales of
Securities in the United States we will conform to the Conduct Rules of said
Association, or (ii) if not so registered, we hereby agree not to reoffer,
resell or deliver Securities in the United States, its territories or
possessions or to any person who we have reason to believe is a citizen thereof
or resident therein, unless we comply with the NASD's Interpretation with
Respect to Free-Riding and Withholding and comply, as though we were a member of
the NASD, with the provisions of Rules 2730, 2740 and 2750 of the NASD Conduct
Rules and with Section 2420 thereof as that section applies to a non-member
foreign dealer. We further confirm our understanding that any registration
statement relating to a public offering of the securities noted in the "Shares
Eligible for Future Sale" section of the Prospectus where NASD members
participate in any underwritten
6SDA
offering or transaction that takes securities "off the shelf" is responsible for
ensuring that a timely filing is made with the Corporate Financing Department of
the NASD of the documents required to be filed under Rules 2710 and 2720 of the
NASD Conduct Rules.
_________________________________________
(Name of Dealer)
By:
--------------------------------------
Name:
Title:
_________________________________________
(Address)
_________________________________________
(City and State)
Dated:______________________, 1998
7SDA
EXHIBIT C
UNDERWRITERS' QUESTIONNAIRE
In connection with the Offering to which the foregoing Agreement Among
Underwriters dated ________________, 1998 between Security Capital Trading,
Inc., First Equity Corporation of Florida and the Underwriter executing the same
relates, except as otherwise disclosed to the Representative(s) in writing, such
Underwriter advises the Representative(s) as follows and authorizes the
Representative(s) to use the information furnished in response to this
Underwriters' Questionnaire in the Registration Statement relating to the
Securities:
(a) Neither such Underwriter nor any of its directors,
officers or partners, individually or as a part of a "group" (as that
term is used in Section 13(d)(3) of the 1934 Act), (i) has a "material"
relationship (as defined in Rule 405 under the 0000 Xxx) with the
Company or any other seller of Securities or securities of the Company
in the Offering or (ii) is a director, officer or holder (of record or
beneficially, determined in accordance with Rule 13d-3 under the 0000
Xxx) of 5% or more of any class of voting securities of the Company or
any other seller of Securities or Company securities in the Offering,
or (iii) other than as may be stated in the Registration Statement, has
any knowledge that more than 5% of any class of voting securities of
the Company is held or is to be held subject to any voting trust or
similar agreement;
(b) With reference to the Interpretation of the Board of
Governors of the NASD with respect to the Review of Corporate
Financing, neither such Underwriter nor any of its "related persons"
(as defined by the NASD) (i) has purchased or otherwise acquired from
the Company any warrants, options or other securities of the Company
within 18 months prior to the date that the Registration Statement was
initially filed or subsequent to that date, and there are no existing
arrangements for any such purchase or (ii) has had any dealings with
the Company (except those with respect to the Underwriting Agreement)
or any "affiliate" of the Company (as defined in Rule 405 under the
0000 Xxx) as to which documents or other information are required to be
furnished to the NASD pursuant to such Interpretation;
(c) Neither such Underwriter or any of its "related persons"
(as defined by the NASD) is an "affiliate" of the Company as that term
is defined in Rule 2720(b) of the Conduct Rules of the NASD or has a
"conflict of interest" with the Company under Rule 2720 of such Rules
or under Rule 2710 of the NASD's Conduct Rules;
(d) Other than as may be stated in the Registration Statement,
a copy of which has been examined by us, any Prospectus, the Agreement
Among Underwriters, or the Underwriting Agreement, such Underwriter
does not know of any arrangements made or to be made for limiting or
restricting the sale of the Securities, for withholding commissions or
otherwise to hold each Underwriter or dealer responsible for the
distribution of their participation in the Securities, or for discounts
or commissions, including any cash,
1UQ
securities, contract or other consideration to be received by any
dealer in connection with the sale of the Securities, or of any
intention to over-allot the Securities or to stabilize the price of any
security to facilitate the offering of the Securities.
(e) [Intentionally omitted].
(f) [Intentionally omitted].
(g) If the Registration Statement is on Form S-1 (or
equivalent Small Business form), such Underwriter has not prepared or
had prepared for it within the past 12 months any engineering,
management or similar report or memorandum relating to the broad
aspects of the business, operations or products of the Company except
for reports solely comprising recommendations to buy, sell or hold the
Company's securities, unless such recommendations have changed within
the past six months;
(h) If the Registration Statement is on either Form S-2 or
Form S-3 (or equivalent Small Business form), such Underwriter has not
prepared any report or memorandum for external use by it or by the
Company in connection with the Offering;
(i) If the Company does not have any securities registered
under Section 12 of the Exchange Act and is not subject to Section
15(d) of the 1934 Act, such Underwriter does not intend to confirm
sales of the Securities to any accounts over which it exercises
discretionary authority;
(j) Such Underwriter's proposed commitment to purchase
Securities will not result in a violation by it of the financial
responsibility requirements of Rule 15c3-1 under the 1934 Act and is
not prohibited or restricted by any action of the Commission, the NASD
or of any national securities exchange applicable to such Underwriter;
(k) Such Underwriter is familiar with the rules, regulations
and releases of the Commission dealing with the dissemination of
information prior to and during registration and has not distributed
nor will it distribute any written information outside of its
organization relating to the Company or its securities other than in
accordance with such rules, regulations and releases;
(l) If the Company is a "public utility" such Underwriter is
not a "holding company" or a "subsidiary company" or an "affiliate" of
a "holding company" or of a "public utility," each as defined in the
Public Utility Holding Company Act of 1935, as amended;
(m) There is not now pending or threatened against any
Underwriter any action or proceeding of which it has been advised,
either in any court of competent jurisdiction, before the Commission or
any state securities commission concerning its activities as a broker
or dealer, nor has it been named as a "cause" in any such action or
proceeding, which,
2UQ
if determined adversely to such Underwriter, would have a material
adverse effect on such Underwriter; and
(n) With respect to information about each Underwriter
contained in the Registration Statement furnished to the Company by or
on behalf of any Underwriter, the information therein is correct and is
not misleading as it relates to such Underwriter.
All capitalized items in this Questionnaire not otherwise defined
herein are used as defined in the foregoing Agreement Among Underwriters.
___________________, 1998
Very truly yours,
________________________________________
(Name of Firm)
By:
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Name:_________________________________
Title:________________________________
3UQ
