MASTER SELECTED DEALER AGREEMENT
Dear Sirs and Madames:
In connection with public offerings of securities after the date hereof
for which we are acting as manager of an underwriting syndicate or are
otherwise responsible for the distribution of securities to the public by
means of an offering of securities for sale to selected dealers, you may be
offered the right as such a dealer to purchase as principal a portion of such
securities. This will confirm our mutual agreement as to the general terms
and conditions applicable to our participation in any such selected dealer
group organized by us as follows:
1. APPLICABILITY OF AGREEMENT. The terms and conditions of this
Agreement shall be applicable to any public offering of securities
("Securities") pursuant to a registration statement filed under the
Securities Act of 1933 (the "Securities Act"), or exempt from registration
thereunder (other than a public offering of Securities effected wholly
outside the United State of America), wherein Cohig & Associates, Inc.
(acting for is own account or for the account of any underwriting or similar
group or syndicate) is responsible for managing or otherwise implementing the
sale of Securities to selected dealers ("Selected Dealers") and has expressly
informed you that such terms and conditions shall be applicable. Any such
offering of Securities to you as a Selected Dealer is hereinafter called an
"Offering." In the case of any Offering where we are acting for the account
of any underwriting or similar group or syndicate ("Underwriters"), the terms
and conditions of this Agreement shall be for the benefit of, and binding
upon, such Underwriters, including, in the case of any Offering where we are
acting with others as representatives of Underwriters, such other
representatives.
2. CONDITIONS OF OFFERING; ACCEPTANCE AND PURCHASE. Any Offering will
be subject to delivery of the Securities and their acceptance by us and any
other Underwriters, may be subject to the approval of all legal matters by
counsel and the satisfaction of other conditions, and may be made on the
basis of reservation of Securities or an allotment against subscription. We
will advise you by telegram, telex or other form of written communication
("Written Communication," which term, in the case of any Offering described
in Section 3(a) or 3(b) hereof, may include a prospectus or offering
circular) of the particular method and supplementary terms and conditions
(including without limitation, the information as to prices and offering date
referred to in Section 3(c) hereof) any Offering in which you are invited to
participate. To the extent such supplementary terms and conditions are
inconsistent with any provision herein, such terms and conditions shall
supersede any such provision. Unless otherwise indicated in any such Written
Communication, acceptances and other communications by you with respect to an
Offering should be sent to Cohig & Associates, Inc., ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇. An acceptance by you may be in the
form of an "all sold" wire. We reserve the right to reject any acceptance in
whole or in part. The offering price, selling concession and reallowance (if
any) to dealers at any time in effect with respect to an Offering are
hereinafter referred to, respectively, as the "Public Offering Price," the
"Concession," and the "Reallowance." With our consent, you may allow a
discount, not in excess of the Reallowance fixed by us, in selling such
Securities to other dealers, provided that in doing so you comply with the
Rules of Fair Practice of the National Association of Securities Dealers,
Inc. (the "NASD"). Upon our request you will advise us of the identity of
any dealer to whom you allow such a discount and any underwriters or dealers
from whom you receive such a discount. Unless notified otherwise by us,
Securities purchased by you shall be paid for on such date as we shall
determine, on one day's prior notice to you, by certified or official bank
check
or wire, in an amount equal to the Public Offering Price or, if we shall so
advise you, at such Public Offering Price less the Concession, payable in
Federal or Clearing House funds to the order of Cohig & Associates, Inc.,
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇. Delivery of the
Securities will made as soon as possible after receipt of payment therefor.
We shall have authority to make appropriate arrangements for payment for
and/or delivery through the facility of the Depository Trust Company or any
such depository or other facility for the Securities. If Securities are
purchased and paid for at such Public Offering Price, such Concession will be
paid after the termination of the provisions of Section 3(c) hereof with
respect to such Securities.
3. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
(a) REGISTERED OFFERINGS. In the case of any Offering of Securities
which are registered under the Securities Act ("Registered Offering"),
we shall provide you with such number of copies of each Preliminary
Prospectus and of the Final Prospectus (as defined in the Underwriting
Agreement) relating thereto as you may reasonably request for the
purposes contemplated by the Securities Act and the Securities
Exchange Act of 1934 (the "Exchange Act") and the applicable rules and
regulations of the Securities and Exchange Commission (the "SEC")
thereunder. You represent and warrant that you are familiar with Rule
15c2-8 under the Exchange Act relating to the distribution of each
Preliminary and Final Prospectus and agree that you will comply
therewith. You agree to make a record of your distribution of each
Preliminary Prospectus and, when furnished with copies of any revised
Preliminary Prospectus, you will, upon our request, promptly forward
copies thereof to each person to whom you have theretofore distributed
a Preliminary Prospectus. You agree that in purchasing Securities in
a Registered Offering you will rely upon no statements whatsoever,
written or oral, other than the statements in the Final Prospectus
delivered to you by us. You will not be authorized by the issuer or
other seller of Securities offered pursuant to a Prospectus or by any
Underwriter to give any information or to make any representation not
contained in the Prospectus in connection with the sale of such
securities.
(b) OFFERINGS PURSUANT TO OFFERING CIRCULAR. In the case of any
Offering of Securities, other than a Registered Offering, which is
made pursuant to an offering circular or other document comparable to
a prospectus in a Registered Offering (an "Offering Circular"), we
shall provide you with such number of copies of each preliminary
Offering Circular and of the final Offering Circular relating thereto
as you may reasonably request. You agree that you will comply with
the applicable Federal and State laws, and the applicable rules and
regulations of any regulatory body promulgated thereunder, governing
the use and distribution of offering circulars by brokers or dealers.
You agree that in purchasing Securities pursuant to an Offering
Circular you will rely upon no statements whatsoever, written or oral,
other than the statements in the final Offering Circular delivered to
you by us. You will not be authorized by the issuer or other seller
of Securities offered pursuant to an Offering Circular or by any
Underwriter to give any information or to make any representation not
contained in the Offering Circular in connection with the sale of such
Securities.
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(c) OFFER AND SALE TO THE PUBLIC. With respect to any Offering of
Securities, we will inform you by a Written Communication of the
Public Offering Price, the Selling Concession, the Reallowance (if
any) to dealers and the time when you may commence selling Securities
to the public. After such public offering has commenced, we may
change the Public Offering Price, the Selling Concession and
Reallowance to dealers. With respect to each Offering of Securities,
until the provisions of this Section 3(c) shall be terminated pursuant
to Section 4 hereof, you agree to offer Securities to the public only
at the Public Offering Price, except that if a Reallowance is in
effect, a reallowance from the Public Offering Price not in excess of
such Reallowance may be allowed as consideration for services rendered
in distribution to dealers who are actually engaged in the investment
banking or securities business, who execute the written agreement
prescribed by Section 24(c) of Article III of the Rules of Fair
Practice of the National Association of Securities Dealers, Inc (the
"NASD") and who are either members in good standing of the NASD or
foreign banks, dealers or institutions not eligible for membership in
the NASD who represent to you that they will promptly reoffer such
Securities at the Public Offering Price and will abide by the
conditions with respect to foreign banks, dealers and institutions set
forth in Section 3(e) hereof.
(d) OVER-ALLOTMENT; STABILIZATION; UNSOLD ALLOTMENTS. We may, with
respect to any Offering, be authorized to over-allot in arranging
sales to Selected Dealers, to purchase and sell Securities for long or
short account, and to stabilize or maintain the market price of the
Securities. You agree that upon our request at any time and from time
to time prior to the termination of the provisions of Section 3(c)
hereof with respect to any Offering, you will report to us the amount
of Securities purchased by you pursuant to such offering which then
remain unsold by you and will, upon our request at any such time, sell
to us for our account or the account of one or more Underwriters such
amount of such unsold Securities as we may designate, at the Public
Offering Price less an amount to be determined by us not in excess of
the Concession. If, prior to the later of (a) the termination of the
provisions of Section 3(c) hereof with respect to any Offering, or (b)
the covering by us of any short position created by us in connection
with Section 3(c) hereof with respect to any Offering in which we
purchase or contract to purchase for our account or the account of one
or more Underwriters in the open market or otherwise any Securities
purchased by you under this Agreement as part of such Offering, you
agree to pay us on demand an amount equal to the Concession with
respect to such Securities (unless you shall have purchased such
Securities pursuant to Section 2 hereof at the Public Offering Price,
in which case we shall not be obligated to pay such Concession to you
pursuant to Section 2) plus transfer taxes and broker's commissions or
dealer's ▇▇▇▇-up, if any, paid in connection with such purchase or
contract to purchase.
(e) NASD. You represent that you are a dealer actually engaged in
the investment banking or securities business and that you 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 or possessions and not registered under the Exchange Act
((a "non-member foreign dealer"). If you are a non-
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member foreign dealer, you agree to make no sales of securities
within the United States, its territories or its possessions or to
persons who are nationals thereof or residents therein. Non-member
foreign dealers agree, in making any sales, to comply with the
NASD's interpretation with respect to free-riding and withholding.
In accepting a selling concession where we are acting as such
Representative, and in allowing a discount to any other person,
you agree to comply with the provisions of Rule 2740 of the NASD
Conduct Rules, and, in addition, if you are a non-member foreign
dealer or bank, you agree to comply, as though you were a member
of the NASD, with the provisions of Rules 2730 and 2750 of such
Conduct Rules and to comply with Rule 2420 thereof as that Rule
applies to a non-member foreign dealer or bank. You represent
that you are fully familiar with the above provisions of the
Rules of Fair Practice of the NASD.
You agree further that in connection with any purchase of securities from
us that is not otherwise covered by the terms of this Agreement (whether
we are acting as manager, as a member of an underwriting syndicate or a
selling group or otherwise), if a selling concession, discount or other
allowance is granted to you, clauses (i) and (ii) of the preceding
paragraph will be applicable.
(f) RELATIONSHIP AMONG UNDERWRITERS AND SELECTED DEALERS. We may buy
Securities from or sell Securities to any Underwriter or Selected
Dealer and with our consent, the Underwriters (if any) and the
Selected Dealers may purchase Securities from and sell Securities to
each other at the Public Offering Price less all or any part of the
Concession. You are not authorized to act as agent for us or any
Underwriter of the issuer or other seller of any Securities in
offering Securities to the public or otherwise. Nothing contained
herein or in any Written Communication from us shall constitute the
Selected Dealers partners with us or any Underwriter or with one
another. Neither we nor any Underwriter shall be under any obligation
to you except for obligations assumed hereby or in any Written
Communication from us in connection with any Offering. In connection
with any Offering you shall be liable for your proportionate amount of
any claim, demand or liability which may be asserted against you alone
or against one or more Selected Dealers participating in such
Offering, or against us or the Underwriters, if any, based upon the
claim that the Selected Dealers, or any of them, constitute an
association, an unincorporated business or other entity.
(g) BLUE SKY LAWS. Upon application to us, we shall inform you as to
any advice we have received from counsel concerning the jurisdictions
in which Securities have been qualified for sale or are exempt under
the securities or blue sky laws of such jurisdiction, but we do not
assume any obligation or responsibility as to your right to sell
securities in any such jurisdiction.
(h) COMPLIANCE WITH LAW. You agree that in connection with any
offering of securities covered by this Agreement you will comply with
the applicable provisions of the Securities Act and the Exchange Act
and the applicable rules and regulations of the SEC thereunder, the
applicable rules and regulations of the NASD, and the applicable rules
of any securities exchange having jurisdiction over the offering.
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In addition, you will not, until advised by us in writing or by wire of
completion of the offering (as defined in Rule 10b-6 of the SEC under the
Exchange Act), bid for or purchase the securities in the open market or
otherwise make a market in the securities or otherwise attempt to induce
others to purchase the securities in the open market, in violation of Rule
10b-6.
4. AUTHORITY. We shall have full authority to take such action as we
may deem advisable in respect of all matters pertaining to any Offering
covered by this Agreement. We shall be under no liability to you except for
our lack of good faith and for obligations assumed by us in this Agreement,
except that you do not waive any rights that you may have under the
Securities Act or the rules and regulations thereunder.
5. NOTICE. Any notice from us shall be deemed to have been duly given
if mailed or transmitted by any standard form of written telecommunications
to you at the above address or at such other address as you shall specify to
us in writing.
6. TERMINATION; SUPPLEMENTS AND AMENDMENTS. This Agreement shall
continue in full force and effect until terminated by a written instrument
executed by each of the parties hereto. This Agreement may be supplemented
or amended by us by written notice thereof to you, and any such supplement or
amendment to this Agreement shall be effective with respect to any Offering
to which this Agreement applies after the date of such supplement or
amendment. Each reference to "this Agreement" herein shall, as appropriate,
be to this Agreement as so amended and supplemented. The terms and
conditions set forth in Section 3(c) hereof with regard to any Offering will
terminate at the close of business on the 30th day after (a) in the case of a
Registered Offering, the effective date of the Registration Statement
pursuant to which such Offering is made, and (b) in the case of any other
Offering, the commencement of the public offering of the Securities to which
such Offering relates, but in our discretion may in either case be extended
by us for a further period not exceeding 30 days and in our discretion,
whether or not extended, may be terminated at any earlier time.
7. SUCCESSORS AND ASSIGNS. This Agreement shall be binding on, and
inure to the benefit of, the parties hereto and other persons specified in
Section 1 hereof, and the respective successors and assigns of each of them.
8. GOVERNING LAW. This Agreement and the terms and conditions set
forth herein with respect to any Offering together with such supplementary
terms and conditions with respect to such Offering as may be contained in any
Written Communication from us to you in connection therewith shall be
governed by, and construed in accordance with the laws of the State whose law
governs the terms and provisions of the Underwriting Agreement executed in
connection with the Offering.
Please confirm by signing and returning to us the enclosed copy of this
Agreement that your subscription to, or your acceptance of any reservation of
any Securities pursuant to an Offering shall constitute (i) acceptance of and
agreement to the terms and conditions of this Agreement (as supplemented and
amended pursuant to Section 4 hereof) together with and subject to any
supplementary terms and conditions contained in any Written Communication
from us in connection with such Offering, all of which shall constitute a
binding agreement between you and us, individually or as representative of
any Underwriters, (ii) confirmation that your representations and warranties
set forth in Section 3 hereof are true and correct at that time, (iii)
confirmation that your agreements set forth in Section 2 and 3 hereof have
been and will be fully performed by you
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to the extent and at the times required thereby and (iv) in the case of any
offering described in Section 3(a) or 3(b) hereof, acknowledgment that you
have requested and received from us sufficient copies of the Final Prospectus
or final Offering Circular, as the case may be with respect to such Offering
in order to comply with your undertakings in Section 3(a) or 3(b) hereof.
Very truly yours,
COHIG & ASSOCIATES, INC.
By:
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Confirmed , 19
-------------- ----
--------------------------------
By:
-----------------------------
(sign name and print title)
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that the undersigned hereby
constitutes and appoints ▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇, of Cohig & Associates, Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and each of them, the true and lawful agents and
attorneys-in-fact of the undersigned, with full power to appoint a substitute
or substitutes to act hereunder, with respect to all matters arising in
connection with the undersigned's acting as one of the Underwriters of the
proposed offering of the following securities:
PREMIER CONCEPTS, INC.
1,100,000 Shares of Common Stock*
1,100,000 Common Stock Purchase Warrants*
with full power and authority to execute and deliver for and on behalf of the
undersigned all such agreements, contracts, consents and documents in
connection herewith as said agents and attorneys-in-fact, or any of them, may
deem advisable. The undersigned hereby gives to said agents and
attorneys-in-fact, and to each of them, full power and authority to act in
the premises, including, without limiting the generality of the foregoing,
the power and authority to execute, by manual or facsimile signature, and
deliver an Agreement Among Underwriters relating to such offering and to
appoint a substitute or substitutes to act hereunder with the same power and
authority as said agents and attorneys-in-fact, or any of them, would have if
personally acting. The undersigned hereby ratifies and confirms all that
said agents and attorneys-in-fact, or any of them, or any substitute or
substitutes, may do by virtue hereof.
This appointment shall remain in full force and effect until revoked by
the undersigned in writing.
Duly executed at this day of , 1997.
----------------------- ----- --------------
----------------------------------------
By:
-------------------------------------
Title:
----------------------------------
* Plus options to acquire an additional 165,000 Shares and 165,000 Warrants
pursuant to an Over-allotment Option.
(CORPORATE ACKNOWLEDGMENT)
STATE OF
------------------------------)
) ss.
COUNTY OF )
-----------------------------
On this _______ day of __________________, 19____, before me, a
notary public duly commissioned and sworn, personally appeared
________________________________, to me known and known to me to be the
identical person whose name is affixed to the above Power of Attorney,
who, being by me duly sworn, did depose and say that he resides at
_______________________________________________________________________,
that he is __________________________ of ________________________________,
the corporation described in and which executed the foregoing Power of
Attorney, that he has signed the above Power of Attorney by authority of the
Board of Directors of said corporation as the free and voluntary act and deed
of said corporation for the uses and purposes therein set forth, and that he,
being informed of the contents of said Power of Attorney, acknowledges that
the statements contained therein are true and that he signed his name thereto
by like authority.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day in this acknowledgment first above written.
My commission expires:
------------------------
[SEAL]
--------------------------------------
Notary Public
(PARTNERSHIP ACKNOWLEDGMENT)
STATE OF
------------------------------)
) ss.
COUNTY OF )
-----------------------------
On this _______ day of __________________, 19____, before me, a
notary public duly commissioned and sworn, personally appeared
_________________________________, one of the members of the firm
__________________________________________________, to me known and known
to me to be the individual described in and who executed the foregoing Power
of Attorney who, being by me duly sworn, did depose and say that he executed,
and was duly authorized to execute, the same as the free and voluntary act
and deed of said firm for the uses and purposes therein set forth, and that
he, being informed of the contents of said Power of Attorney, acknowledges
that he signed his name thereto.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal the day in this acknowledgment first above written.
My commission expires:
------------------------
[SEAL]
--------------------------------------
Notary Public
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Contemporaneously with the proposed offering, Cohig & Associates, Inc. will
transmit to the Syndicate Department of the signer of the foregoing power of
attorney, via telegram, facsimile or equivalent form of communication, a
statement of the anticipated terms of the offering as follows:
Principal amount to be underwritten;
(a) Proposed public offering date;
(b) Proposed closing date;
(c) Public offering price;
Underwriting Discount and the portion thereof representing the management
fee, underwriting fee and selling concession;
Dealer's concession and reallowance, if any.
Unless the Syndicate Department of Cohig & Associates, Inc. receives a
communication via telegram, facsimile or equivalent form of communication
(whether or not the statement of anticipated terms was received) revoking
such power of attorney (i) not later than 7:00 a.m. Denver time on the
proposed public offering date, if the statement of anticipated terms has been
transmitted prior thereto, or (ii) within two hours following the
transmission of the statement of the anticipated terms, if such statement is
sent on the proposed public offering date, the power and authority granted by
such power of attorney may be exercised in accordance with the terms thereof.
(No statement of anticipated terms will be sent after 4:00 p.m. Denver time
on any day.)
A copy of the Agreement Among Underwriters as executed (with facsimile
signatures) will be sent to the Syndicate Department of the signer of the
foregoing power of attorney promptly after execution.
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