Exhibit 1.3
1,000,000 Shares of Common Stock, no par value per share
and
1,000,000 Redeemable Common Stock Purchase Warrants
of
ROSEDALE DECORATIVE PRODUCTS, LTD.
AGREEMENT AMONG UNDERWRITERS
April 28, 1998
▇.▇. ▇▇▇▇▇▇ & Company, L.L.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Gentlemen:
We understand that Rosedale Decorative Products, Ltd., a corporation
organized under the laws of the Province of Ontario, Canada (the "Company"),
desires to enter into an agreement, substantially in the form of Exhibit A
attached hereto (the "Underwriting Agreement") with you and the other
prospective Underwriters named in Schedule I to the Underwriting Agreement for
the sale by the Company of an aggregate of 1,000,000 shares of Common Stock, no
par value (the "Shares") and 1,000,000 Redeemable Common Stock Purchase Warrants
(the "Redeemable Warrants") of the Company (collectively, the "Firm
Securities"). In addition, the Company, pursuant to the Underwriting Agreement,
will grant to the Underwriters an option to purchase up to an additional 150,000
shares of Common stock and 150,000 Redeemable Common Stock Purchase Warrants
(the "Option Securities") for the purpose of covering over-allotments, if any,
in connection with the sale of the Firm Securities. The Firm Securities and any
Option Securities purchased pursuant to the Underwriting Agreement are herein
called 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 said
Schedule I 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 pursuant to
the terms of the Underwriting Agreement is herein called the "Underwriting
Obligation" of that Underwriter.
1. Authority and Compensation of Representative. We hereby authorize
you, as our representative (the "Representative") and on our behalf, (a) to
enter into an agreement with the Company, in substantially the form attached
hereto as Exhibit A, but with such changes therein as in your judgment will not
be materially adverse to the Underwriters, providing for the purchase by us,
severally and not jointly, from the Company, at the purchase price per Security
determined as set forth in said Exhibit A, of the number of Firm Securities set
forth opposite our name in Schedule I to said Exhibit A, and our allotted share
of the Option Securities which you determine to be purchased, (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.
As your compensation for your services hereunder, we authorize
you to charge to our account on the Closing Date and on the closing date
referred to in the Underwriting Agreement $0 per Share as "representative"
concession, and we will receive $.25 per Share as our underwriter obligation fee
in respect to the aggregate number of Firm Securities and Option Securities,
respectively, which we shall agree to purchase pursuant to the Underwriting
Agreement. Further, we will receive $.25 per Share as "selling concession" for
that portion in which you allocate to us as our retention.
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 initial 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
initial public offering prices as so determined (the "Initial Public Offering
Price"). 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
initially 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
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conformity with the provisions hereof and with the terms of offering set forth
in the Prospectus such shares of your Securities as you advise us are not
reserved.
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 Securities reserved for our account for
offering to Selected Dealers bears to the aggregate of all Securities of all
Underwriters so reserved.
You agree to notify us promptly on the date of the public
offering as to the number of shares and warrants, if any, of the Securities
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 may request in order to determine the number of Securities
purchased by us under the Underwriting Agreement which then remain unsold, 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 Dealer 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 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
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therein. Each Selected Dealer shall agree to comply with the provisions of
Section 24 of Article III of the Rules of Fair Practice 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
provisions of Sections 8 and 36 of Article III of such Rules of Fair Practice,
and to comply with Section 25 of Article III 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 for sales of Securities to any qualified dealer,
all subject to the Rules of Fair Practice 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 (otherwise
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 the
identical shares originally sold by us. In lieu of delivery of such shares to
us, you may sell such shares 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.
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 Initial Public Offering Price for such
Securities. 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. We
understand that certificates representing purchases by each Underwriter or
Selected Dealer will be registered in each Underwriter or Selected Dealer's name
and that you will maintain a list of certificate numbers for each Underwriter
and Selected Dealer.
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 subject to the foregoing paragraph. Any Securities purchased by
us and so reserved which remain unsold at any time prior
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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 pursuant to their terms, 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 advance your funds for our
account (charging current interest rates) and 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 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 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 in your
discretion either 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 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 all
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 payments and receipt,
shall be paid to or paid by us, provided that you may establish such reserves 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
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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, 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.
9. Stabilization and Over-Allotment. We authorize you on our behalf and
for our account, during the term of this Agreement, in your discretion, and
without obligating you to do so, to buy and sell Securities in the open market
or otherwise for either long or short account, on such terms and at such prices
as you may determine and, in arranging for sales, to over-allot and cover such
over-allotments, provided that at no time shall the net commitment of any
Underwriter under authority of this Section, either for long or short account,
exceed an amount equivalent to 15% of the maximum number of Securities to be
purchased by such Underwriter under the Underwriting Agreement. During or after
the term of this Agreement you may cover any short position incurred under the
preceding sentence by purchase of Option Securities from the Company pursuant to
the option contained in Section 2 of the Underwriting Agreement or otherwise.
All purchases, sales and over-allotments under authority of this Section shall
be for the accounts of each of the several Underwriters as nearly as practicable
in proportion to their respective Underwriting Obligations. We agree to take up
at cost on demand any Securities so purchased for our account and to deliver on
demand any Securities so sold or over-allotted for our account. We also
authorize you to deliver our Securities pursuant to this Section 9, against
sales made by you for our account pursuant to any provisions of this Agreement.
Notwithstanding the foregoing limitations, in the event of default by one or
more Underwriters in respect of their obligations under this paragraph, each
non-defaulting Underwriter shall assume its proportionate share of the
obligations of such defaulting Underwriter without relieving such defaulting
Underwriter of its liability hereunder.
In the event that you effect any stabilizing purchases
pursuant to this Section 9, you will notify each Underwriter promptly of the
date and time when the first stabilizing purchase is effected and the date and
time when stabilizing is terminated. Each Underwriter agrees that if it effects
any stabilizing purchases, it will, not later than three business days following
the day on which any such stabilizing purchase is effected, notify you of the
price, date and time at which such stabilizing purchase was effected and will
promptly notify you of the date and time when stabilizing was terminated by such
Underwriter. Each Underwriter authorizes you to file with the Securities and
Exchange Commission (the "Commission") all notices and reports which may be
required as a result of any transactions made pursuant to this Section 9.
We agree to advise you, from time to time upon your request
during the term of this Agreement, of the number of Securities retained by us or
purchased by us from other Underwriters and Selected Dealers remaining unsold,
and will, upon your request, release to you for the accounts
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of one or more of the several Underwriters, such number of Securities as you may
designate at such price, not less than the net price to selected Dealers nor
more than the Initial Public Offering Price, as you may determine.
If, pursuant to the provisions of the first paragraph of this
Section 9 and prior to the termination of this Agreement (or such earlier date
as you may leave determined on notice to the Underwriters) you purchase or
contract to purchase any Securities which were retained by or released to us for
direct sale, which shares were theretofore not effectively placed for investment
by us, we authorize you in your discretion either to charge our account with an
amount equal to the concession to Selected Dealers with respect thereto or to
require us to repurchase such shares at a price equal to the total cost of such
purchase, including commissions, if any, and transfer tax on the redelivery.
Securities delivered on such repurchase need not be the identical shares
originally purchased by and delivered to us.
Upon the termination of this Agreement, you are authorized in
your discretion, in lieu of delivering to the several Underwriters any
Securities then held for their respective accounts pursuant to this Section 9,
to sell such shares for the accounts of each of the Underwriters at such price
or prices as you may determine and debit or credit our account for the loss or
profit resulting from such sale.
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 accounts of any
Securities or any security of the same class or series, or any right to purchase
any such security except (i) as provided in this Agreement, the Underwriting
Agreement and the Selected Dealer Agreements or otherwise approved by you, (ii)
in brokerage transactions not involving solicitation of the customer's order and
(iii) in connection with option and option-related transactions that are
consistent with the "no-action" position set forth in Release No. 17609, as
amended in Release No. 19565, of the Commission under the 1934 Act. 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. Prior to the completion (as defined
in Rule 10b-6 under the ▇▇▇▇ ▇▇▇) of our participation in the distribution, we
will otherwise comply with Rule 10b-6.
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
pursuant to Article 23-A of the General Business Law of the State of New York,
if necessary.
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12. Default by Underwriters. Default by one or more Underwriters in
respect of their obligations under the Underwriting Agreement shall not release
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 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.
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
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.
14. General Position of the Representative. 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 from any of our obligations or in 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;
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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 Representative of each 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 11 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.
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 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
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the delivery of and payment for the Securities and the termination of this
Agreement and the similar agreements entered into with the other Underwriters.
(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 claim 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 defaults
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 nondefaulting Underwriters. Nothing herein shall relieve a defaulting
Underwriter from liability for its default.
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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 requirements of any
securities exchange to which we are subject.
18. Undertaking to Mail Prospectuses. 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 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, or to you at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
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 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 hereby agree
to comply with the provisions of Section 24 of Article III of the Rules of Fair
Practice 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 the provisions of Sections 8 and 36 of Article III of such Rules of
Fair Practice, and to comply with Section 25 of Article III thereof as that
Section applies to a nonmember foreign dealer. 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
11
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 so 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.
This instrument may be signed by or on behalf of the Underwriters in
one or more counterparts each of which shall constitute an original and all of
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 Georgia without giving effect to the choice of law or
conflicts of laws principles thereof.
Please confirm that the foregoing correctly states the understanding
between us by signing and returning to us a counterpart hereof.
Very truly yours,
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:
▇.▇. ▇▇▇▇▇▇ & COMPANY, L.L.C.
As Representative of the Several Underwriters
By:___________________________________
Name: __________________________
Title: ___________________________
12
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby irrevocably
constitutes and appoints ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇ ▇▇▇▇▇▇ of ▇.▇. ▇▇▇▇▇▇ &
Company, L.L.C., ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇,
and each of them, the true and lawful agents and attorneys-in-fact of the
undersigned with the power and authority to execute and deliver as Agreement
Among Underwriters (which Agreement Among Underwriters grants to the
Representative of the Underwriters as named therein the authority to execute the
Underwriting Agreement) and to otherwise act as agents and attorneys-in-fact of
the undersigned with respect to all matters arising in connection with the
undersigned's acting as one of the Underwriters of a proposed offering of
1,000,000 Shares of Common Stock, no par value
and
1,000,000 Redeemable Common Stock Purchase Warrants
of
ROSEDALE DECORATIVE PRODUCTS, LTD.
with full power and authority to execute and deliver for and on behalf of the
undersigned all agreements, consents and documents in connection therewith 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 the power and
authority 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.
Duly executed this _____ day of _____________, 19___.
______________________________________
Firm Name:
By: ___________________________
Its: ___________________________
13
(PARTNERSHIP ACKNOWLEDGMENT)
STATE OF
COUNTY OF
On this ___ day of ______________, ______, before me, a notary public
in and for said county and state, residing therein, duly commissioned and sworn,
personally appeared _________________________________, known to me to be one of
the general partners of the firm that executed the within instrument and
acknowledged to me that he executed, and was duly authorized to execute, the
same as for the act and deed of said firm.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal in the county and state aforesaid on the day and year first written above.
______________________________
Notary Public
My Commission Expires:
(CORPORATE ACKNOWLEDGMENT)
STATE OF
COUNTY OF
On this ___ day of ______________, ______, before me, a notary public
in and for said county and state, residing therein, duly commissioned and sworn,
personally appeared _________________________________, known to me to be
_____________ of the corporation that executed the within instrument and
acknowledged to me that he executed, and was duly authorized to execute, the
same on behalf of and in the name of such corporation pursuant to its bylaws or
a resolution of its directors.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official
seal in the county and state aforesaid on the day and year first written above.
_________________________________
Notary Public
My Commission Expires:
14
EXHIBIT A
UNDERWRITING AGREEMENT