Exhibit 1.3
2,000,000 Shares of Common Stock
▇.▇. ▇▇▇▇ GROUP, INC.
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AGREEMENT AMONG UNDERWRITERS
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_____________________, 1999
Neidiger, Tucker, Bruner, Inc.
As Representative of the Several Underwriters
300 Plaza Level
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
To the Underwriters named in Schedule I
to the attached Underwriting Agreement
Ladies and Gentlemen:
1. Underwriting Agreement. We understand that ▇.▇. ▇▇▇▇ Group, Inc.,
a Delaware corporation (the "Company"), proposes to enter into an underwriting
agreement (the "Underwriter Agreement") in substantially the form attached to
this Agreement Among Underwriters (the "Agreement') with you and other
prospective underwriters (including us) (collectively, the "Underwriters")
providing for the several, and not joint, purchase by the Underwriters from the
Company of 2,000,000 shares of its Common Stock, $.10 par value, upon the terms
stated in the Underwriting Agreement (such 2,000,000 shares of Common Stock are
herein referred to as the "Firm Shares"), in which we will agree in accordance
with the terms thereof to purchase the number of Firm Shares set forth opposite
our name in Schedule I thereto. In addition, the Company proposes to grant to
the Underwriters, upon the terms stated in the Underwriting Agreement, the right
to purchase up to an additional 300,000 shares of Common Stock (the "Additional
Shares") for the sole purpose of covering over-allotments in the sale of the
Firm Shares. We will agree in accordance with the terms of the Underwriting
Agreement to purchase our proportionate share of the Option Shares which you
determine to be purchased. The Firm Shares and the Additional Shares are
collectively referred to herein as the "Shares."
2. Registration Statement and Prospectus. The Shares are more
particularly described in a registration statement on Form S-1 (Registration No.
333-______) filed with the Securities and Exchange Commission (the "Commission")
under the Securities Act of 1933 (the "Act"). Amendments to such registration
statement have been or are being filed, or a form of prospectus is being filed
pursuant to Rule 424(b) and Rule 430A under the Act, or a Term Sheet or
Abbreviated Term Sheet is being filed pursuant to Rule 424(b)(7) under the Act,
in which, with our consent hereby confirmed, we have been named as one of the
Underwriters of the Shares. A copy of the registration statement as filed and a
copy of each amendment as filed (excluding exhibits) have heretofore been
delivered to us. We confirm that we have examined the registration statement,
including amendments thereto, relating to the Shares, as filed with the
Commission,
that we are willing to accept the responsibilities of an Underwriter under the
Act in respect of the registration statement, and we are willing to proceed with
a public offering of the Shares in the manner contemplated therein. The
registration statement and the related prospectus may be further amended, but no
such amendment or change shall release or affect our obligations hereunder or
under the Underwriting Agreement. As used herein, the terms "Registration
Statement," "Prospectus," "preliminary prospectus," "Term Sheet" and
"Abbreviated Term Sheet" shall have the same meanings as specified in the
Underwriting Agreement.
3. Authority of Neidiger, Tucker, Bruner, Inc. We hereby authorize
Neidiger, Tucker, Bruner, Inc., acting on our behalf, as our representative (a)
to complete, execute. and deliver the Underwriting Agreement, to determine the
public offering price of the Shares, concessions and any reallowances to
Selected Dealers (as hereinafter defined) and the underwriting' discount with
respect thereto and to make such variations, if any, as in your judgment are
appropriate and are not material, provided that the respective amount of Shares
set forth opposite our name in Schedule I thereto shall not be increased without
our consent, except as provided herein or in the Underwriting Agreement, (b) to
waive performance or satisfaction by the Company of obligations; or conditions
included in the Underwriting Agreement if in your judgment such waiver will not
have a material adverse effect upon the interests of the Underwriters, and (c)
to take such action as in your discretion may be necessary or advisable to carry
out the Underwriting Agreement, this Agreement and the transactions for the
accounts of the several Underwriters contemplated thereby and hereby. We also
authorize you to determine all matters relating to the public advertisement of
the Shares
4. Public Offering. We authorize you, with respect to any Shares
which we so agree to purchase, to reserve for sale, and on our behalf sell, to
dealers selected by you (including you or any of the other Underwriters, such
dealers so selected being hereinafter called "Selected Dealers") and to others
all or part of our Shares as you may determine. Reservations for sales to
persons other than Selected Dealers shall be as nearly as practicable in
proportion to the respective underwriting obligations of the Underwriters,
unless you agree to a smaller proportion at the request of an Underwriter.
Reservations for sales to Selected Dealers need not be in such proportion. All
sales of reserved Shares shall be as nearly as practicable in proportion to the
respective reservations as calculated from day to day.
In your discretion, from time to time, you may add to the reserved
Shares any Shares retained by us remaining unsold, and you may upon our request
release to us any of our Shares reserved but not sold. Any Shares so released
shall not thereafter be deemed to have been reserved. Upon termination of this
Agreement, or prior thereto at your discretion, you shall deliver to our account
any of our Shares reserved but not sold and delivered, except that if the
aggregate of all reserved but unsold and undelivered Shares is less than 300,000
Shares, you are authorized to sell such Shares for the accounts of the several
Underwriters at such price as you may determine.
Sales of reserved Shares shall be made to Selected Dealers at the public
offering price less the Selected Dealers' Concession (herein so called) pursuant
to the Selected Dealer Agreement in substantially the form attached hereto, and
to others at the public offering price. Underwriters and Selected Dealers may
reallow a concession to other dealers as set forth in the Selected Dealer
Agreement.
After advice from you that the Shares are released for sale to the
public, we will offer to the public in conformity with the terms of the offering
set forth in the Prospectus such of our Shares as you advise us are not
reserved. We authorize you after the Shares are released for sale to the public,
in your discretion, to change the public offering price of the Shares and the
Concession, and to buy Shares for our account from Selected Dealers at the
public offering price less such amount not in excess of the Selected Dealers'
Concession as you may determine.
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Sales of Shares between Underwriters may be made with your prior
consent, or as you deem advisable for blue sky purposes.
We agree that we will not sell to any accounts over which we exercise
discretionary authority any Shares which we have agreed to purchase under the
Underwriting Agreement.
5. Additional Provisions Regarding Sales. You may, in your
discretion, charge our account with an amount equal to the Selected Dealers'
Concession in respect of each Share purchased under the Underwriting Agreement
by you and not sold by you for our account (and each Share which you believe has
been substituted therefor) which may be delivered against a purchase contract
made by you for our account prior to the later of (a) the termination of all of
the provisions referred to in Section 10 hereof or (b) the covering by you of
any short position created by you for our account, or in lieu of such charge,
require us to repurchase on demand at the total cost thereof (including
commissions), plus transfer taxes, any such Share so delivered.
6. Payment and Delivery. At or before 8:00 a.m., Denver, Colorado
time, on the Closing Date (as defined in the Underwriting Agreement) and on each
Additional Closing Date (as defined in the Underwriting Agreement), we will
deliver to you at your office at 300 Plaza Level, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, by wire transfer or a certified or bank cashiers' check payable
to your order, in clearing house funds, in the amount equal to the initial
offering price set forth in the Prospectus less the Selected Dealers' Concession
in respect of the number of Firm Shares or Additional Shares, as the case may
be, to be purchased by us pursuant to the Underwriting Agreement. We authorize
you for our account to make payment of the purchase price for the Shares to be
purchased by us against delivery to you of such Shares, and the difference
between such price and the amount of our check delivered to you therefor shall
be credited to our account. Unless we notify you at least two full business days
prior to such Closing Date (or, if applicable, such Additional Closing Date) to
make other arrangements, you may, in your discretion, advise the Company to
prepare our certificates in our name. If you have not received our funds as
requested, you may in your discretion make such payment on our behalf, in which
event we will reimburse you promptly. Any such payment by you shall not relieve
us from any of our obligations hereunder or under the Underwriting Agreement.
We authorize you for our account to accept delivery of our Shares from
the Company and to hold such of our Shares as you have reserved for sale to
Selected Dealers and others and to deliver such Shares against such sales. You
will deliver to us our unreserved Shares as promptly as practicable.
Notwithstanding the foregoing provisions of this Section 6, if you so
notify us, payment for and delivery of our Shares may be made through the
facilities of The Depository Trust Company, if we are a member, unless we have
otherwise notified you prior to a date to be specified by you, or, if we are not
a member, settlement may be made through a correspondent who is a member
pursuant to instructions we may send to you prior to such specified date.
As promptly as practicable after you receive payment for reserved Shares
sold for our account, you will remit to us the purchase price paid by us for
such Shares and credit or debit our account with the difference between the sale
price and such purchase price.
7. Authority to Borrow. In connection with the transactions
contemplated in the Underwriting Agreement or this Agreement, we authorize you,
in your discretion, to advance your own funds for our account, charging current
interest rates, to arrange loans for our account and in connection therewith to
execute and deliver any notes or other instruments and hold or pledge as
security any of our Shares or any
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Common Stock of the Company purchased for our account. Any lender may rely upon
your instructions in all matters relating to any such loan.
Any of our Shares and any Common Stock of the Company purchased for our
account held by you may from time to time be delivered to us for carrying
purposes, and any such securities will be delivered to you upon demand.
8. Stabilization and Other Matters. We authorize you in your
discretion to make purchases and sales of the Common Stock of the Company for
our account in the open market or otherwise, for long or short account, on such
terms as you deem advisable and in arranging sales to over-allot. If you have
purchased Common Stock for stabilizing purposes prior to the execution of this
Agreement, such purchases shall be treated as having been made pursuant to the
foregoing authorization. We also authorize you, either before or after the
termination of the offering provisions of this Agreement, to cover any short
position incurred pursuant to this Section on such terms as you deem advisable.
All such purchases and sales and over-allotments shall be made for the accounts
of the several Underwriters as nearly as practicable in proportion to their
respective underwriting obligations. Our net commitment under this Section
(excluding any commitment incurred under the Underwriting Agreement upon
exercise of the right to purchase Option Shares) shall not, at the end of any
business day, exceed 10% of our maximum underwriting obligation. We will on your
demand take up and pay for at cost any Common Stock so purchased or sold or
over-allotted for our account, and, if any other Underwriter defaults in its
corresponding obligation, we will assume our proportionate share of such
obligation without relieving the defaulting Underwriter from liability. We will
be obligated in respect of purchases and sales made for our account hereunder
whether or not any proposed purchase of the Shares from the Company is
consummated. The existence of this provision is no assurance that the price of
the Shares will be stabilized or that, if stabilizing is commenced, it may not
be discontinued at any time.
We agree to advise you, from time to time upon your request, during the
term of this Agreement, of the number of Shares retained by us remaining unsold,
and will, upon your request, sell to you for the accounts of one or more of the
several Underwriters such number of such Shares as you may designate at such
prices, not less than the net price to Selected Dealers nor more than the public
offering price, as you may determine.
If you effect any stabilizing purchase pursuant to this Section 8, you
will notify us promptly of the date and time when the first stabilizing purchase
was effected and the date and time when stabilizing was terminated. You will
retain such information as is required to be retained by you as "Manager"
pursuant to Rule 17a-2 under the Securities Exchange Act (the "Exchange Act").
We agree that we will not effect any stabilizing purchases without your express
authorization, and, if any purchases are effected, we agree to furnish to you
not later than three business days following the date upon which stabilization
was commenced such information as is required under Rule 17a-2(d).
With respect to the Underwriting Agreement, you are also authorized in
your discretion (a) to exercise the option therein as to all or any part of the
Option Shares, and to terminate such option in whole or in part prior to its
expiration, (b) to postpone the (Closing Date and any Additional Option Closing
Date referred to in the Underwriting Agreement, and any other time or date
specified therein, (c) to exercise any right of cancellation or termination, (d)
to arrange for the purchase by other persons (including yourselves or any other
Underwriter) of any Shares not taken up by any defaulting Underwriter, and (e)
to consent to such other changes in the Underwriting Agreement as in your
judgment do not materially adversely affect the substance of' our rights and
obligations thereunder.
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We further agree that (a) prior to the termination of this Agreement we
will not, directly or indirectly, bid for or purchase any Shares for our own
account, except as provided in this Agreement and in the Underwriting Agreement,
and (b) prior to the completion (as defined in Regulation M promulgated under
the Exchange Act) of our participation in this distribution, we will otherwise
comply with Regulation M promulgated under the Exchange Act.
9. Allocation of Expenses and Settlement. We authorize you to charge
our account with (a) all transfer taxes on Shares purchased by us pursuant to
the Underwriting Agreement and sold by you for our account, (b) Selected
Dealers' Concessions in connection with the purchase, marketing and sale of the
Shares for our account, and (c) our proportionate share (based upon our
underwriting obligation) of all other expenses incurred by you under this
Agreement and in connection with the purchase, carrying, sale and distribution
of the Shares. Your determination of the amount and allocation of such expenses
shall be conclusive. In the event of the default of any Underwriter in carrying
out its obligations hereunder, the expenses chargeable to such Underwriter
pursuant to this Agreement and not paid by it, as well as any additional losses
or expenses arising from such default, may be proportionately charged by you
against the other Underwriters not so defaulting (including such other persons
who purchase Shares upon a default by an Underwriter pursuant to Section 11
hereof), without, however, relieving such defaulting Underwriter from its
liability therefor.
As soon as practicable after termination of this Agreement, the accounts
hereunder will be settled, but you may reserve from distribution such amount as
you deem necessary to cover possible additional expenses. You may at any time
make partial distributions of credit balances or call for payment of debit
balances. Any of our funds in your hands may be held with your general funds
without accountability for interest. Notwithstanding the termination of this
Agreement or any settlement, we will pay (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, including any liability
based on the claim that the Underwriters constitute an association,
unincorporated business or other separate entity, and of any expenses incurred
by you or any other Underwriter with your approval in contesting any such claim
or liability, and (b) any transfer taxes paid after such settlement on account
of any sale or transfer for our account.
10. Termination. The offering provisions of this Agreement shall
terminate 45 days from the date hereof unless extended by you. You may extend
said provisions for a period or periods not exceeding an additional 30 days in
the aggregate, provided that the Selected Dealer Agreements, if any, are
similarly extended. Whether extended or not, said provisions may be terminated
in whole or in part by notice from you.
11. Default by Underwriters. Default by one or more Underwriters in
respect of their obligations hereunder or 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 case of such default by one or more Underwriters, you are
authorized to increase, pro rata with other non-defaulting Underwriters, the
number of Shares which we shall be obligated to purchase pursuant to the
Underwriting Agreement, provided that the aggregate amount of all such increases
for our account shall not exceed 10% of our total commitment to purchase the
Firm Shares set forth opposite our names on Schedule I of the Underwriting
Agreement; and you are further authorized to arrange, but shall not be obligated
to arrange, for the purchase by other persons, who may include yourselves or
other Underwriters, of all or a portion of any aggregate amount not taken up. In
the event any such arrangements are made, the respective numbers of Shares to be
purchased by the non-defaulting Underwriters and by any such other persons shall
be taken as the basis for the underwriting obligations under this Agreement.
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12. Position of Neidiger, Tucker, Bruner, Inc. Except as otherwise
specifically provided in this Agreement, you shall have full authority to take
such action as you may deem advisable in respect of all matters pertaining to
the Underwriting Agreement and this Agreement and in connection with the
purchase, carrying, sale, and distribution of the Shares (including authority to
terminate the Underwriting Agreement as provided therein). You shall be under no
liability to us for or in respect of the value of the Shares or the validity or
the form thereof, the Registration Statement, any preliminary prospectus, the
Prospectus, the Underwriting Agreement, or other instruments executed by the
Company or others; or for or in respect of the issuance, transfer, or delivery
of the Shares; or for the performance by the Company or others of any agreement
on its or their part; nor shall you be liable under any of the provisions hereof
or for any matters connected herewith, except for your own want of good faith,
for obligations expressly assumed by you in this Agreement and for any
liabilities imposed upon you by the Act. No obligations on your part shall be
implied or inferred herefrom. Authority with respect to matters to be determined
by you, or by you and the Company, pursuant to the Underwriting Agreement, shall
survive the termination of this Agreement.
In taking all actions hereunder, except in the performance of your own
obligations hereunder and under the Underwriting Agreement, you shall act only
as the representative of each of the Underwriters. The commitments and
liabilities of each of the several Underwriters are several in accordance with
their respective purchase obligations and are not joint or joint and several.
Nothing contained herein shall constitute the Underwriters partners or render
any of them liable to make payments otherwise than as herein provided. If for
federal income tax purposes the Underwriters should be deemed to constitute a
partnership, then each Underwriter elects to be excluded from the application of
Subchapter K, Chapter 1, Subtitle A, of the Internal Revenue Code of 1986, as
amended, and agrees not to take any position inconsistent with such election.
Each Underwriter authorizes Neidiger, Tucker, Bruner, Inc., in its discretion on
behalf of such Underwriter, to execute such evidence of such election as may be
required by the Internal Revenue Service.
13. Compensation to Neidiger, Tucker, Bruner, Inc. As compensation for
your services in connection with the purchase of the Shares and the management
of the public offering of the Shares, we agree to pay you and authorize you to
charge our account with an amount equal to $_______ per share of the Shares
which we have agreed to purchase pursuant to the Underwriting Agreement.
14. Indemnification and Future Claims. Each underwriter, including
you, agrees to indemnify, hold harmless and reimburse each other Underwriter and
each person, if any, who controls any other Underwriter within the meaning of
Section 15 of the Act, and any successor of any other Underwriter, to the extent
that, and upon the terms upon which, each Underwriter will be obligated pursuant
to the Underwriting Agreement to indemnify, hold harmless and reimburse the
Company, its directors, officers, and controlling persons therein specified.
In the event that at any time any person other than an Underwriter
asserts a claim against one or more of the Underwriters or against you as
representatives of the Underwriters arising out of an alleged untrue statement
or omission in the Registration Statement (or any amendment thereto) or in any
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) or relating to any transaction contemplated by this Agreement, we
authorize you to make such investigation, to retain such counsel for the
Underwriters and to take such action in the defense of such claim as you may
deem necessary or advisable. You may settle such claim with the approval of a
majority in interest (based upon underwriting obligations) of the Underwriters.
We will pay our proportionate share (based upon our underwriting obligation) of
all expenses incurred by you (including the fees and expenses of counsel for the
Underwriters) in investigating and defending against such claim and our
proportionate share of the aggregate liability incurred by all Underwriters in
respect of such claim (after deducting any contribution or indemnification
obtained pursuant to the Underwriting Agreement, or otherwise, from persons
other than Underwriters), whether such liability
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is the result of a judgment against one or more of the Underwriters or the
result of any such settlement. There shall be credited against any amount paid
or payable by us pursuant to this paragraph any loss, damage, liability, or
expense which is incurred by us as a result of any such claim asserted against
us, and if such loss, claim, damage, liability, or expense is incurred by us as
a result of any such claim against us, and if such loss, claim, damage,
liability, or expense is incurred by us subsequent to any payment by us pursuant
to this Section, appropriate provision shall be made to effect such credit, by
refund or otherwise. Any Underwriter may retain separate counsel at its own
expense. A claim against or liability incurred by a person who controls an
Underwriter shall be deemed to have been made against or incurred by such
Underwriter. In the event of default by any Underwriter in respect of its
obligations under this Section, the non-defaulting Underwriters shall be
obligated to pay the full amount thereof in the proportions that their
respective underwriting obligations bear to the underwriting obligations of all
non-defaulting Underwriters, without relieving such defaulting Underwriter of
its liability hereunder. Our agreements contained in this Section will remain in
full force and effect regardless of any investigation made by or on behalf of
such other Underwriter or controlling person and will survive the delivery of
and payment for the Shares and the termination of this Agreement and the similar
agreements entered into with the other Underwriters.
15. Blue Sky and Other Matters. You will not have any responsibility
with respect to the right of any Underwriter or other person to sell the Shares
in any jurisdiction notwithstanding any information you may furnish in that
connection. We authorize you to file a New York Further State Notice, if
required, and to make and carry out on our behalf any agreements which you may
deem necessary in order to procure registration or qualification of any of the
Shares in any jurisdiction, and we will at your request make such payments, and
furnish to you such information, as you may deem required by reason of any such
agreements.
We authorize you to file on behalf of the several Underwriters with the
National Association of Securities Dealers, Inc, (the "NASD") such documents and
information, if any, which are available or have been furnished to you for
filing pursuant to the applicable rules, statements, and interpretations of the
NASD.
16. Title to Shares. The Shares purchased by the respective
Underwriters shall remain the property of such Underwriters until sold and no
title to any such Shares shall in any event pass to you by virtue of any of the
provisions of this Agreement.
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 Rule l5c3-l under the Exchange Act or of any applicable
rules relating to capital requirements of any securities exchange or association
to which we are subject.
18. 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 Shares will constitute any
representation by you as to the existence or nonexistence of possible unforeseen
expenses or liabilities of or charges against the several Underwriters.
Notwithstanding the distribution of any net credit balance to us, we will be and
remain liable for, and will pay on demand, (a) our proportionate share (based
upon our underwriting obligation) of all expenses and liabilities which may be
incurred by or for the accounts of the Underwriters, including any liability
which may be incurred by 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 after such
settlement on account of any sale or transfer for our account.
19. Acknowledgment of Registration Statement, Etc. We hereby confirm
that we have examined the Registration Statement (including any amendments or
supplements thereto) and Prospectus
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relating to the Shares filed with the Commission, that we are willing 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 (including any supplement thereto)
relating to the Shares, insofar as they relate to us, and (b) that there is no
information about us required to be stated in said Registration Statement or
said preliminary prospectus or the Prospectus (including any supplement thereto)
other than as set forth in the Underwriters' Questionnaire previously delivered
by us to you and the Company. We understand that the aforementioned documents
are subject to further change and that we will be supplied with copies of any
amendment or amendments to the Registration Statement and of any amended
Prospectus promptly, if and when received by you, but the making of such changes
and amendments will not release us or affect our obligations hereunder or under
the Underwriting Agreement.
20. Notices and Governing Law. Any notice from you to us shall be
mailed, telephoned, or telegraphed to us at our address as set forth in the
Underwriters' Questionnaire. Any notice from us to you shall be deemed to have
been duly given if mailed, telephoned or facsimile to you at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Corporate Finance. This
Agreement shall be governed by and construed in accordance with the laws of the
State of Colorado.
21. Other Provisions. We represent that we are actually engaged in the
investment banking or securities business and that we are a member in good
standing of the NASD or, if we are not such a member, that we are a foreign
dealer not eligible for membership in the NASD and that we will not offer or
sell any Shares in, or to persons who are nationals or residents of the United
States of America. In making sales of Shares, if we are such a member, we agree
to comply with all applicable rules of the NASD, including, without limitation,
the Interpretation of Rule 2110 of the NASD's Rules of Conduct with respect to
Free-Riding and Withholding (IM-2110-1) and Rule 2740 of such rules, or if we
are a foreign dealer, we agree to comply with such Interpretation and Rules
2730, 2740 and 2750 of such Rules as though we were such a member, and with Rule
2420 as that Rule applies to a non-member broker or dealer in a foreign country.
We confirm that you have heretofore delivered to us such number of copies of the
Prospectus as have been reasonably requested by us, and we further confirm that
we have complied and will comply with Rule 15c2-8 under the Exchange Act
concerning delivery of each preliminary prospectus and the Prospectus, and that
we will furnish to persons who receive a confirmation of sale (i) a copy of the
Prospectus filed pursuant to Rule 424(b) or Rule 424(c) under the Act or (ii) if
a Term Sheet or Abbreviated Term Sheet is used, a copy of the Term Sheet or
Abbreviated Term Sheet and the last preliminary prospectus filed with the
Commission prior to the time the Registration Statement became effective.
We are aware of our statutory responsibilities under the Act, and you are
authorized on our behalf to so advise the Commission.
22. Counterparts. This Agreement may be signed in any number of
counterparts which, taken together, shall constitute one and the same
instrument, and you may confirm the execution of such counterparts by facsimile
signature.
[Signature page follows]
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Please confirm that the foregoing correctly states the understanding
between us by signing and returning to us a counterpart.
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As Attorney-in-Fact for each of the several
Underwriters named in Schedule I to the
Underwriting Agreement
Confirmed as of the date first above written:
Neidiger, Tucker, Bruner, Inc.
As Representative of the Several
Underwriters
By:
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Name:
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Title:
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