EXHIBIT 99.4
TUMBLEWEED, INC.
COMMON STOCK
1,200,000 SHARES
_____________
SELLING AGENT AGREEMENT
_____________
, 1998
Selling Agent Name
Street
City, State
Gentlemen:
Tumbleweed, Inc., a Delaware corporation (the "Company"), hereby
appoints ____________________________________________________________ as
selling agent (the "Sales Agent"), on a nonexclusive, best efforts basis, to
sell up to ___________ shares of the Company as described below and hereby
confirms its agreement (this "Agreement") with the Sales Agent as follows:
1. DESCRIPTION OF THE SHARES AND THE OFFERING. The Company proposes
to issue and sell a minimum of 700,000 shares and a maximum of 1,200,000
shares (the "Shares") of its common stock, par value $0.01 per share ("Common
Stock"), for a purchase price of $10.00 per share. The Shares and the terms
of the offering are more fully described in the Company's Form S-1
Registration Statement (Reg. No. 333-57931) (the "Registration Statement")
filed with the United States Securities and Exchange Commission (the
"Commission").
(a) The Shares will be sold by the Company on a "best efforts"
basis, subject to availability. Each subscriber will be required to
purchase a minimum of 100 Shares and Shares must be purchased in
increments of 100 Shares. The Company reserves the right to withdraw,
cancel or modify the offering hereby and to reject subscriptions, in
whole or in part, for any reason. All subscription payments and
executed Subscription Agreements (as defined in Section 3(b)) will be
delivered into escrow for deposit in an interest-bearing escrow
account, subject to a closing at such time as the Company has accepted
subscriptions for at least 700,000 shares (the "Initial Closing") and,
if all of the Shares offered by the Company have not been sold as of
the date of the Initial Closing, to subsequent closings on such
escrowed funds from time to time as determined by the Company.
(b) The offering will begin on the date the Registration
Statement is declared effective by the Commission and will continue
until the earlier of (i) the date proceeds for all of the 1,200,000
Shares offered by the Company have been deposited in the specified
escrow account; (ii) December 31, 1998 (subject to the right of the
Company to extend the offering for an additional 90 days to March 31,
1999); (iii) the date upon which the Company elects to terminate the
offering and purchase the shares held in escrow at any time after
subscription proceeds for no fewer than 700,000 Shares have been
deposited in the specified escrow account; or (iv) the date upon which
the Company terminates the offering for any reason other than the sale
of at least 700,000 Shares. If the Company terminates this offering
before subscriptions for 700,000 shares have been accepted by the
Company and the proceeds therefor have been deposited in the specified
escrow account, all subscription proceeds will be promptly returned to
subscribers, with interest.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY. The
Company represents and warrants to, and agrees with, the Sales Agent that:
(a) The Company has prepared the Registration Statement in
conformity with the requirements of the Securities Act of 1933, as
amended (the "Securities Act"), and the Rules and Regulations (the
"Rules and Regulations") of the Commission thereunder and has filed
the Registration Statement with the Commission. Copies of the
Registration Statement, including any amendments thereto, the
preliminary prospectuses (meeting the requirements of the Rules and
Regulations) contained therein and the exhibits, financial statements,
and schedules, as finally amended and revised, have heretofore been
made available by the Company to the Sales Agent. The Registration
Statement, which shall be deemed to include all information omitted
therefrom in reliance upon Rule 430A and contained in the Prospectus
referred to below, has become effective under the Act and no
post-effective amendment to the Registration Statement has been filed
as of the date of this Agreement. "Prospectus" means (i) the form of
prospectus first filed with the Commission pursuant to Rule 424(b) or
(ii) the last preliminary prospectus included in the Registration
Statement filed prior to the time it becomes effective or filed
pursuant to Rule 424(a) under the Act that is delivered by the Company
to the Sales Agent for delivery to purchasers of the Shares, together
with the term sheet or abbreviated term sheet filed with the
Commission pursuant to Rule 424(b)(7) under the Act.
(b) The Company is offering the Shares to be sold, subject to
availability, through the best efforts of employees of the Company and
selling agents pursuant to the requirements of the Securities Act and
the Rules and Regulations of the Commission thereunder.
(c) No action, suit, or proceeding for the purpose of preventing
or suspending the use of the Prospectus has been initiated or, to the
knowledge of the management of the Company, threatened by any
governmental agency or body nor
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has any such agency or body notified the Company of any objections to
the use of the Prospectus.
(d) As of the date hereof and at all times thereafter during the
Offering Period (as hereinafter defined), neither the Prospectus nor
any amendment or supplement thereto will include any untrue statement
of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading;
provided, however, that the foregoing representations and warranties
shall not apply to information, if any, contained in or omitted from
the Prospectus or any such amendment or supplement in reliance upon,
and in conformity with, written information furnished to the Company
by the Sales Agent specifically for use in the preparation thereof.
(e) The Company is duly organized and validly existing and in
good standing under the laws of the State of Delaware and has full
power and authority (corporate and other) to conduct its business as
described in the Prospectus. The Company has all such power,
authority, authorizations, approvals, orders, licenses, certificates,
and permits necessary to enter into this Agreement, to carry out the
provisions and conditions hereof, and to commence the offering. This
Agreement has been duly and validly authorized, executed and delivered
by the Company and is a valid and binding agreement and obligation of
the Company.
(f) Except as contemplated in the Prospectus, after the
respective dates as of which information is given in the Prospectus,
the Company has not incurred any liabilities or obligations, direct or
contingent, or entered into any transactions that are material to the
Company, and there has not been any material change in the capital
stock, short-term debt, or long-term debt of the Company, or any
material adverse change, or, to the knowledge of the management of the
Company, any development involving a prospective material adverse
change, in the condition (financial or other), net worth, or results
of operations of the Company.
(g) The Company has conducted its business so as to comply in
all material respects with applicable statutes, rules, regulations,
decisions, directives, and orders, and there is not pending or, to the
knowledge of the management of the Company, threatened, any action,
suit, or proceeding to which the Company is or may be a party, before
or by any court or governmental agency or body, which might result in
any material adverse change in the condition (financial or other),
business, prospects, net worth, or results of operations of the
Company or might materially and adversely affect the properties or
assets thereof.
(h) The Registration Statement contains a list of agreements,
instruments, or understandings to which the Company or its
subsidiaries is a party or by which they or their properties may be
bound and which may be material to the Company ("Material
Agreements"). The Company is not in default in the performance or
observance of any obligation, agreement, covenant, or condition
contained in any
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Material Agreement, nor is the Company in violation of any term or
provision of its Certificate of Incorporation or Bylaws. The execution
and delivery of this Agreement and the incurrence of the obligations
herein set forth will not conflict with, or constitute a breach of or
default under, the Certificate of Incorporation or the Bylaws of the
Company or any Material Agreement or any statute regulating the business
of the Company, or any rule, regulation, decision, directive, or order
of any court or governmental agency or body having jurisdiction over the
Company or any of its activities or properties; and, except as expressly
set forth herein and in the Prospectus, no consent, approval,
authorization, or order of any court or governmental agency or body is
required for the consummation of the transactions contemplated hereby.
(i) The Company's authorized and issued capital stock is stated
in the Prospectus. The Shares being sold by the Company pursuant to
this Agreement, when issued and delivered in accordance with this
Agreement, will be duly and validly issued and outstanding and fully
paid, and the Company's Common Stock conforms to all statements in
relation thereto contained in the Prospectus.
3. ENGAGEMENT OF SALES AGENT; SALES AND DELIVERY OF THE SHARES. On
the basis of the representations and warranties herein contained, and subject
to the terms and conditions and covenants and agreements set forth herein,
the parties hereto agree as follows:
(a) The Sales Agent will act as selling agent for the Company on
a nonexclusive, "best efforts" basis to sell Shares for the account of
the Company, subject to availability, at a price of $10.00 per Share,
and the Sales Agent agrees to use its best efforts to effect such
sales. However, the Sales Agent makes no commitment to purchase any
of the Shares. The Sales Agent's engagement hereunder will terminate
on the earlier of (a) December 31, 1998, or such later date not beyond
March 31, 1999 (90 days), to which the Company may extend the
offering; (b) the sale of all 1,200,000 of the Shares; (c) termination
of the offering by the Company for any reason before the sale of all
of the Shares; or (d) termination of the Sales Agent's engagement by
the Company in accordance with the provisions of Section 10 hereof.
The period from the Effective Date (as defined in Section 10(a)) to
such termination of the Sales Agent's engagement shall be referred to
as the "Offering Period."
(b) The Sales Agent will deliver a copy of the Prospectus and a
subscription agreement in the form accompanying the Prospectus (the
"Subscription Agreement") to each prospective investor in accordance
with the Securities Exchange Act of 1934, as amended, and the rules
and regulations thereunder (together, the "Exchange Act"), including
Rule 15c2-8 thereunder.
(c) All subscribers will be instructed to execute a Subscription
Agreement and to make their remittances payable to National City Bank
of Kentucky ("Escrow Agent"), in accordance with the instructions
contained in the Prospectus, the Subscription Agreement, and this
Agreement. All subscribers will be instructed that remittances
represented by a check must be made payable to "National City Bank of
Kentucky, Escrow Agent for Tumbleweed, Inc." Upon receipt of a
Subscription
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Agreement and subscription proceeds, the Sales Agent shall review the
Subscription Agreement for completeness and then shall promptly transmit
the completed Subscription Agreement and subscription proceeds to the
Escrow Agent no later than noon, Eastern Time, of the next business day
after receipt.
(d) The Escrow Agent will determine if each Subscription
Agreement is complete promptly after submission. If the Escrow Agent
is unable to determine whether the Subscription Agreement is complete,
the Escrow Agent shall forward the Subscription Agreement to the
Issuer, which will determine as to whether the Subscription is
complete. If any Subscription Agreement is incomplete, the Escrow
Agent shall forward the Subscription Agreement to the Issuer. If the
Sales Agent is listed on the Subscription Agreement, the Issuer shall
forward the incomplete Subscription Agreement to the Sales Agent. If
an incomplete Subscription Agreement is not made complete within 15
days of delivery to the Issuer, then the Escrow Agent shall return the
incomplete Subscription Agreement and the subscription proceeds
submitted therewith to the Sales Agent, who shall promptly return them
to the Subscriber.
(e) The Company reserves the right to accept or reject, in
whole or in part, any subscription forwarded by the Sales Agent at
any time before the sale of Shares at a closing. If the Company
rejects all or a portion of any such subscription, the Company shall
deliver to the Escrow Agent written notice stating the amount of the
rejected portion of the subscription together with a copy of the
Subscription Agreement for the rejected subscription. Upon such
delivery, the Escrow Agent shall promptly return the Subscription
Agreement and the proceeds for the rejected portion of such
subscription to the Sales Agent, who shall promptly return them to the
Subscriber.
(f) Upon the sale of Shares by the Company at any closing, the
Company shall deliver a written confirmation of sale to the Subscriber
and shall authorize the issuance and delivery of stock certificates
for the Shares sold to the Subscriber.
(g) If the offering of the Shares is terminated for any reason
at any time when the Company has accepted subscriptions for fewer than
700,000 shares, and the amount of subscription proceeds held in
escrow totals less than $7,000,000 (as determined in accordance with
the escrow agreement between the Company and the Escrow Agent (the
"Escrow Agreement")), then, in accordance with the Escrow Agreement,
the Escrow Agent shall promptly deliver to the Sales Agent checks in
the amount of the subscription proceeds received from such Sales Agent
on behalf of each Subscriber, plus interest, for delivery to the
appropriate Subscribers.
(h) As compensation for its efforts, the Sales Agent shall be
paid by the Company a commission of eight percent (8%) of the proceeds
of the Shares sold through the efforts of the Sales Agent. The
commission shall be paid to the Sales Agent promptly upon the
Company's authorization of the issuance of stock certificates for
Shares sold through the Sales Agent's efforts.
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4. ADDITIONAL COVENANTS OF THE COMPANY. The Company covenants and agrees
with the Sales Agent that:
(a) The Company will notify the Sales Agent promptly of any
request by the Commission or any other governmental body or agency
that the Prospectus be amended or supplemented.
(b) The Company will advise the Sales Agent, promptly after it
shall receive notice or obtain knowledge thereof, of the initiation or
threatening of any action, suit or proceeding for the purpose of
preventing or suspending the use of the Prospectus and that it will
use its best efforts to prevent the issuance of any order or ruling
preventing or suspending the offering or to obtain its withdrawal if
such an order or ruling should be issued.
(c) The Company will furnish to the Sales Agent, as soon as
available, copies of the Prospectus and all amendments and supplements
thereto in such quantities as the Sales Agent may from time to time
reasonably request.
(d) The Company will apply the net proceeds from the offering
received by it substantially in the manner set forth under "Use of
Proceeds" in the Prospectus.
(e) During the two-year period after the date of the last sale
of Shares by the Company, the Company or its successors or assigns
will comply with all registration, filing, and reporting requirements
of the Securities Act and the Exchange Act.
5. COVENANTS, REPRESENTATIONS, AND WARRANTIES OF THE SALES AGENT. The
Sales Agent covenants and agrees with the Company that:
(a) The Sales Agent will maintain an accurate record of all
orders to purchase Shares and funds received, including the name,
address, and social security or taxpayer identification number of each
prospective purchaser and the manner in which the stock certificate is
to be issued.
(b) The Sales Agent will instruct all subscribers to execute a
Subscription Agreement containing the following information: (i) the
name, address, and social security (or taxpayer ID) number of the
Subscriber; (ii) the number of Shares subscribed for by the
Subscriber; (iii) the current aggregate dollar amount of such
subscription (which shall be $10.00 multiplied by the number of Shares
subscribed for by the Subscriber; and (iv) the Subscriber's signature.
The Sales Agent will instruct each subscriber to make its remittance,
in the exact dollar amount of the total purchase price for the number
of Shares subscribed for, payable to the Escrow Agent, and if
remittance is represented by a check, the check must be payable to
"National City Bank of Kentucky, Escrow Agent for Tumbleweed, Inc."
The Sales Agent will
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promptly transmit all completed Subscription Agreements and subscription
proceeds received by the Sales Agent to the Escrow Agent at the
following address:
National City Bank of Kentucky, Escrow Agent for Tumbleweed, Inc.
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(c) The Sales Agent agrees, that if the Escrow Agent or the
Company determines any subscription forwarded to the Escrow Agent by
the Sales Agent is not complete, or if the Company rejects all or a
portion of any subscription, and therefore the Company returns all or
a portion of the subscription proceeds to the Sales Agent, the Sales
Agent will promptly notify the Subscriber in writing and promptly
return to the Subscriber the amount of subscription proceeds received
from the Company.
(d) The Sales Agent agrees, that if the offering of the Shares
is terminated for any reason at any time when the Company has accepted
subscriptions for fewer than 700,000 shares, and the amount of
subscription proceeds held in escrow totals less than $7,000,000 (as
determined in accordance with the escrow agreement between the Company
and the Escrow Agent), and as a result the Escrow Agent delivers to
the Sales Agent checks in the amount of the subscription proceeds
received from such Sales Agent on behalf of each Subscriber, plus
interest, the Sales Agent shall promptly deliver such checks to the
appropriate Subscribers.
(e) The Sales Agent is registered with the Commission as a
broker-dealer and is a member in good standing with the National
Association of Securities Dealers, Inc. (the "NASD"), and the Sales
Agent and all its agents and representatives have or will have all
required licenses and registrations to perform its obligations under
this Agreement; and such registrations, membership, and licenses will
remain in effect during the term of this Agreement. The Sales Agent
agrees that, in performing its obligations under this Agreement, the
Sales Agent will comply with all applicable statutes and the rules and
regulations of the NASD and any other federal or state governmental
agency that are applicable to it. This Agreement has been duly and
validly authorized, executed and delivered by the Sales Agent and is
its valid and binding agreement and obligation.
(f) The Sales Agent agrees that, upon receipt of any notice
from the Company of the happening of any event of the kind which, in
the opinion of the Company, requires the amendment or supplementation
of the Prospectus, the Sales Agent will forthwith discontinue offering
Shares until the Sales Agent receives copies of the supplemented or
amended Prospectus, or until it is advised in writing by the Company
that the use of the Prospectus may be resumed, and, if so directed by
the Company, the Sales Agent will deliver to the Company all copies,
other than permanent file copies, then in the Sales Agent's
possession, of the Prospectus before such supplementation or
amendment.
(g) The Sales Agent represents and warrants to the Company that
(i) neither the Sales Agent nor any of its associated or affiliated
persons have acquired
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unregistered securities of the Company, and (ii) except for this
Agreement, no contractual or other relationship exists between the Sales
Agent and the Company.
(h) The Sales Agent will represent and warrant to the NASD, by
submitting a letter in the form attached as Appendix A to this
Agreement, that (i) neither the Sales Agent nor any of its associated
or affiliated persons have acquired unregistered securities of the
Company, and (ii) except for this Agreement, no contractual or other
relationship exists between the Sales Agent and the Company.
6. RESPONSIBILITY FOR PAYMENT OF EXPENSES. The Company covenants and
agrees to pay the costs and expenses typically borne by issuers of securities in
a public offering, including, without limitation (i) the costs and charges of
any transfer agent or registrar and the cost of preparing stock certificates;
(ii) the qualification of the Shares under state securities laws (if necessary),
including filing fees and the reasonable fees and disbursements of counsel in
connection therewith; (iii) the filing fee of the NASD; and (iv) the printing
and delivery to the Sales Agent of copies of the Prospectus and any amendments
or supplements thereto.
7. CONDITIONS TO OBLIGATIONS. The obligations of each of the parties as
provided herein shall be subject to the continuing accuracy, as of the date
hereof and as of the date of the Company's acceptance of any subscription for
Shares obtained through the efforts of the Sales Agent, of the representations
and warranties of the other party herein.
8. INDEMNIFICATION.
(a) The Company agrees to indemnity and hold harmless the Sales
Agent, each of its agents, attorneys, officers, directors, and
employees, and any person who controls the Sales Agent within the
meaning of the Securities Act against any and all losses, claims,
lawsuits, damages, or liabilities to which the Sales Agent or its
agents, attorneys, officers, directors, or control persons may become
subject insofar as such losses, claims, lawsuits, damages, or
liabilities (including awards and/or judgments) arise out of or are in
connection with the Prospectus or any amendment or supplement thereto,
or any representations, statements, or other acts by the Company, its
officers, directors, employees, agents, or control persons, and will
reimburse the Sales Agent, its officers, directors, employees, agents,
attorneys and any person who controls the Sales Agent for any and all
costs and expenses, including reasonable counsel fees incurred by them
in connection with the investigation or defense of any such loss,
claim, lawsuit, damage, or liability; provided, however, that the
Company will not be liable in any such case to the extent that any
such loss, claim, lawsuit, or liability arises out of or is based upon
an untrue statement or omission made in the Prospectus or any
amendment or supplement thereto or in reliance upon and in conformity
with written information furnished to the Company, if any, by or on
behalf of the Sales Agent specifically for use with reference to the
Sales Agent in preparation thereof.
(b) The Sales Agent will indemnity and hold harmless the
Company, each of its agents, attorneys, officers, directors, and
employees, and any person who controls the Company within the meaning
of the Securities Act against any and all
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losses, claims, lawsuits, damages, or liabilities to which the Company
or any such person may become subject insofar as such losses, claims,
lawsuits, damages or liabilities (including awards and/or judgments)
arise out of or in connection with or result from any statements
furnished to the Company in writing by the Sales Agent that are included
in the Prospectus or any amendment or supplement thereto and which are
furnished specifically for use with reference to the Sales Agent in
preparation thereof, and will reimburse any and all costs and expenses,
including reasonable counsel fees incurred by the Company or other
indemnified person in connection with investigating or defending any
such loss, claim, lawsuit, damage, or liability.
(c) If the indemnification of a person specified above is for
any reason held unenforceable, the indemnifying party agrees to
contribute to the losses, claims, damages and liabilities for which
such indemnification is held unenforceable, (i) in such proportion as
is appropriate to reflect the relative benefits to the Company, on the
one hand, and the Sales Agent, on the other hand, of the transaction
as contemplated (whether or not the transaction is consummated) or
(ii) if (but only if) the allocation provided for in clause (i) is for
any reason held unenforceable, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause (i) but
also the relative fault of the Company, on the one hand, and the Sales
Agent, on the other hand, as well as any other relevant equitable
considerations. The Company agrees that, for the purposes of this
paragraph, the relative benefits to the Company and the Sales Agent of
the transaction as contemplated hereby shall be deemed to be in the
same proportion that the total value paid or contemplated to be paid
to or by the Company, any affiliate of the Company, or any of its
shareholders, as the case may be, as a result of or in connection with
the transaction bears to the fees paid or to be paid to the Sales
Agent under this Agreement; provided, however, that, to the extent
permitted by applicable law, in no event shall the Sales Agent be
required to contribute an aggregate amount in excess of the aggregate
fees actually paid to it under this Agreement.
(d) If an indemnified party is requested or required to appear
as a witness in any action brought by or on behalf of or against the
indemnifying party or any affiliate of the indemnifying party in a
transaction contemplated by this Agreement in which such indemnified
party is not named as a defendant, the indemnifying party shall
reimburse the indemnified party for all expenses incurred by it in
connection with such indemnified party's appearing and preparing to
appear as such a witness, including, without limitation, reasonable
fees and disbursements of its legal counsel.
(e) Neither party shall, without the other party's prior written
consent, which consent shall not be unreasonably withheld, settle,
compromise, or consent to the entry of any judgment in any pending or
threatened claim, action, or proceeding in respect of which
indemnification could be sought against it under the indemnification
provisions of this Agreement, whether or not any indemnified party is
an actual or potential party to a claim, action, or proceeding, unless
such settlement,
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compromise, or consent includes an unconditional release of each
indemnified party from all liability arising out of such claim, action,
or proceeding.
(f) The foregoing reimbursement, indemnity, and contribution
obligations shall be in addition to any liabilities which the
indemnifying party may otherwise have. The reimbursement and
indemnity obligations of the indemnifying party under such
subparagraphs shall extend upon the same terms and conditions to any
affiliate of the indemnified party, and the shareholders, directors,
officers, employees, attorneys, and control persons (if any), as the
case may be, of the indemnified party and any of its affiliates.
(g) Prior to any proposed sale, distribution, or liquidation of
all or a significant portion of a party's assets or any significant
recapitalization of its outstanding securities in a transaction
pursuant to which such party's ability to honor its obligations
hereunder might be adversely affected, such party will notify the
other party in writing thereof and, if requested by the other party,
shall arrange alternative means for providing for the obligations of
the parties set forth in this Section 8, including the assumption of
such obligations by a third party or the issuance or creation of an
escrow, in each case in an amount and upon terms and conditions
satisfactory to the indemnified part. The provisions of Section 8
shall survive any termination of the authorization provided by this
Agreement.
9. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties, and agreements of the Company and the Sales Agent
herein, and the indemnity agreements contained in Section 8 hereof, shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of the Sales Agent or any controlling persons or the Company or any
of its officers, directors, or any controlling persons, and shall survive the
issuance of the Shares.
10. EFFECTIVE DATE OF THIS AGREEMENT AND TERMINATION.
(a) This Agreement shall become effective (the "Effective Date")
upon the later to occur of (i) the time the Registration Statement
shall be declared effective by the Commission; and (ii) the execution
and delivery of this Agreement by the Company and the Sales Agent.
(b) Either the Company or the Sales Agent may terminate this
Agreement by giving notice to the other as provided in Section 11 at
any time. Any such termination shall not terminate the obligations of
the parties pursuant to Sections 3, 6, and 8 of this Agreement.
11. NOTICES. All notices or communications hereunder, except as herein
otherwise specifically provided, shall be in writing and shall be hand delivered
or sent by U. S. certified mail, return receipt requested, or other form of
delivery requiring signature by the person receiving the delivery, or telecopied
and confirmed to the following addresses:
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To the Sales Agent: At the address set forth on the first page of this
agreement.
To the Company: Tumbleweed, Inc.
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With a copy to: ▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇ PLLC
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Attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
502/589-5400
All notices shall be deemed delivered upon the earlier of the date the
receiving party signs the return receipt or five days after the notice is
postmarked. Any party to this Agreement may change such address for notices
by sending to the parties to this Agreement written notice of a new address
for such purpose.
12. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the Sales Agent, the Company, and their respective successors
and assigns. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person or corporation, other than the parties
hereto and their successors and assigns and the persons referred to in
Section 8, any legal or equitable right, remedy, or claim under or in respect
of this Agreement or any provision herein contained; this Agreement and all
conditions and provisions hereof being intended to be and being for the sole
and exclusive benefit of the parties hereto and their respective successors
and assigns and such indemnified persons and for the benefit of no other
person or corporation. No purchaser of any of the Shares from the Sales
Agent shall be construed a successor or assign merely by reason of such
purchase.
13. APPLICABLE LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the Commonwealth of Kentucky.
14. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
shall constitute one and the same instrument. The validity of this Agreement
shall not be impaired if each party does not execute the same counterpart so
long as the execution of each party appears on the counterparts taken as a
whole.
If the foregoing correctly sets forth the understanding between the
Company and the Sales Agent, please so indicate by signing in the space
provided below for that purpose, whereupon this Agreement shall constitute a
binding agreement between the Company and the Sales Agent.
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TUMBLEWEED, INC.
By:____________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Title: President
ACCEPTED as of the date below.
_______________________________________
By:____________________________________
Name:
Title:
Date:
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APPENDIX A
_____________________, 1998
National Association of Securities
Dealers, Inc.
Corporate Financing
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Attention:
Re: Tumbleweed, Inc. --
OFFERING OF UP TO 1,200,000 SHARES OF COMMON STOCK
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Dear Sir or Madam:
In connection with its participation as a Selling Agent of Tumbleweed,
Inc. in the above-referenced offering of shares of common stock of Tumbleweed,
Inc., _______________________________________________________________________
("Member"), an NASD member, represents and warrants as follows:
1. Member is serving as a Selling Agent for a maximum of ________ shares
in the offering.
2. Neither Member nor any of its associated or affiliated persons have
acquired unregistered securities of Tumbleweed, Inc.
3. Except for this Agreement, no contractual or other relationship exists
between Member and Tumbleweed, Inc.
_______________________________________
By:____________________________________
Name:
Title:
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