Exhibit 1.1
Underwriting Agreement
Dated: [EFFECTIVE DATE]
▇.▇. ▇▇▇▇▇▇ & Co., Inc.
As Representative of the
Underwriters Named in
Schedule I Hereto
▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Ambassador Eyewear Group, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell to the one or more Underwriters named in Schedule I
hereto (the "Underwriters"), including ▇.▇. ▇▇▇▇▇▇ & Co., Inc. (the
"Representative" or "you"), the Representative of the several Underwriters,
pursuant to this Underwriting Agreement (this "Agreement"), an aggregate of
2,000,000 of the Common Stock, par value $.01 per share, ("Common Stock") of the
Company. In addition, the Company proposes to grant to the Underwriters the
Over-Allotment Option, referred to and defined in Section 2(c), to purchase all
or any part of an aggregate of 15% of number of Shares of Common Stock, and to
issue to you the Representative's Warrant, referred to and defined in
Section 12, to purchase certain further additional shares of Common Stock.
The 2,000,000 shares of Common Stock to be sold by the Company, together
with the 300,000 additional shares of Common Stock that are the subject of the
Over-Allotment Option, are herein collectively called the "Shares." The Shares
and the shares of Common Stock issuable upon exercise of the Representative's
Warrant, are herein collectively called the "Securities." The term
"Representative's Counsel" shall mean the firm of ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇,
counsel to the Representative, and the term "Company Counsel" shall mean the
firm of ▇▇▇▇▇▇▇, Del Deo, Dolan, Griffinfer & ▇▇▇▇▇▇▇▇▇, counsel to the Company.
Unless the context otherwise requires, all references herein to a "Section"
shall mean the appropriate Section of this Agreement.
You have advised the Company that the Underwriters desire to purchase the
Shares as herein provided, and that you have been authorized to execute this
Agreement as representative of the Underwriters. The Company confirms the
agreements made by it with respect to the purchase of the Shares by the
Underwriters, as follows:
1. Representations and Warranties.
Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, each Underwriter that:
(a) Registration Statement; Prospectus. A registration statement
(SEC File No. 333-31343) on Form SB-2 relating to the public offering of the
Securities (the "Offering"), including a preliminary form of prospectus, copies
of which have heretofore been delivered to you, has been prepared by the Company
in conformity with the requirements of the Securities Act of 1933, as amended
(the "Act"), and the rules and regulations of the Securities and Exchange
Commission (the "Commission") promulgated thereunder (the "Rules and
Regulations"), and has been filed with the Commission under the Act. As used
herein, the term "Preliminary Prospectus" shall mean each prospectus filed
pursuant to Rule 430 or Rule 424(a) of the Rules and Regulations. The
Preliminary Prospectus bore the legends required by Items 501 and 502 of
Regulation S-B under the Act and the Rules and Regulations. Such registration
statement (including all financial statements, schedules and exhibits) as
amended at the time it becomes effective and the final prospectus included
therein are herein respectively called the "Registration Statement" and the
"Prospectus," except that (i) if the prospectus first filed by the Company
pursuant to Rule 424(b) or Rule 430A of the Rules and Regulations shall differ
from such final prospectus as then amended, then the term "Prospectus" shall
instead mean the prospectus first filed pursuant to said Rule 424(b) or
Rule 430A, and (ii) if such registration statement is amended or such prospectus
is amended or supplemented after the effective date of such registration
statement and prior to the Option Closing Date (as defined in Section 2(c)),
then (unless the context necessarily requires otherwise) the term "Registration
Statement" shall include such registration statement as so amended, and the term
"Prospectus" shall include such prospectus as so amended or supplemented, as the
case may be.
(b) Contents of Registration Statement. On the Effective Date, and
at all times subsequent thereto for so long as the delivery of a prospectus is
required in connection with the offering or sale of any of the Securities,
(i) the Registration Statement and the Prospectus shall in all respects conform
to the requirements of the Act and the Rules and Regulations, and (ii) neither
the Registration Statement nor the Prospectus shall include any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make statements therein not misleading; provided,
however, that the Company makes no representations, warranties or agreements as
to information contained in or omitted from the Registration Statement or
Prospectus in reliance upon, and in conformity with, written information
furnished to the Company by or on behalf of the Underwriters specifically for
use in the preparation thereof. It is understood that the statements set forth
in the Prospectus with respect to stabilization, the material set forth under
the caption "UNDERWRITING," and the identity of counsel to the Representative
under the caption "LEGAL MATTERS," constitute the only information furnished in
writing by or on behalf of the Underwriters for inclusion in the Registration
Statement and Prospectus, as the case may be.
(c) Organization, Standing, Etc. The Company has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the State of Delaware. Each subsidiary of the Company (each a
"Subsidiary") has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware. The
Company and each of its Subsidiaries have full power and corporate authority to
own their respective properties and conduct their respective businesses as
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described in the Prospectus, and are duly qualified or licensed to do business
as foreign corporations and are in good standing in each other jurisdiction in
which the nature of their respective businesses or the character or location of
their respective properties requires such qualification, except where failure so
to qualify will not materially affect the business, properties or financial
condition of the Company or such Subsidiary, as the case may be.
(d) Capitalization. The authorized, issued and outstanding capital
stock of the Company as of the date of the Prospectus is as set forth in the
Prospectus under the caption "CAPITALIZATION." The shares of Common Stock
issued and outstanding on the Effective Date have been duly authorized, validly
issued and are fully paid and non-assessable. No options, warrants or other
rights to purchase, agreements or other obligations to issue, or agreements or
other rights to convert any obligation into, any shares of capital stock of the
Company or any Subsidiary have been granted or entered into by the Company or
such Subsidiary, except as expressly described in the Prospectus. The
Securities conform to all statements relating thereto contained in the
Registration Statement or the Prospectus.
(e) Securities. The Securities and the Representative's Warrant have
been duly authorized and, when issued and delivered against payment therefor
pursuant to this Agreement, will be duly authorized, validly issued, fully paid
and non-assessable and free of preemptive rights of any security holder of the
Company. Neither the filing of the Registration Statement nor the offering or
sale of any of the Securities or the Representative's Warrant as contemplated by
this Agreement gives rise to any rights, other than those which have been waived
or satisfied, for or relating to the registration of any securities of the
Company, except as described in the Registration Statement.
(f) Authority, Etc. This Agreement, the Representative's Warrant,
the Financial Consulting Agreement and the M/A Agreement (each as hereinafter
defined), have been duly and validly authorized, executed and delivered by the
Company and, assuming due execution of this Agreement and such other agreements
by the other party or parties hereto and thereto, constitute valid and binding
obligations of the Company enforceable against the Company in accordance with
their respective terms. The Company has full right, power and lawful authority
to authorize, issue and sell the Securities and the Representative's Warrant on
the terms and conditions set forth herein. All consents, approvals,
authorizations and orders of any court or governmental authority which are
required in connection with the authorization, execution and delivery of such
agreements, the authorization, issue and sale of the Securities and the
Representative's Warrant, and the consummation of the transactions contemplated
hereby have been obtained.
(g) No Conflict. Except as described in the Prospectus, neither the
Company nor any Subsidiary is in violation, breach or default of or under, and
consummation of the transactions hereby contemplated and fulfillment of the
terms of this Agreement will not conflict with or result in a breach of, any of
the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance pursuant to the terms
of, any contract, indenture, mortgage, deed of trust, loan agreement or other
material agreement or instrument to which the Company or such Subsidiary is a
party or by which the Company or such Subsidiary may be bound or to which any of
the property
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or assets of the Company or such Subsidiary are subject, nor will such action
result in any violation of the provisions of the Certificate of Incorporation or
the By-laws of the Company or any Subsidiary, or any statute, order, rule or
regulation applicable to the Company or any Subsidiary of any court or
governmental authority.
(h) Assets. Subject to the qualifications stated in the Prospectus:
(i) the Company and each Subsidiary, as the case may be, has title in fee simple
to all real property and good and marketable title to all personal property and
assets owned by it described in the Prospectus as owned by it, including without
limitation intellectual property, free and clear of all liens, charges,
encumbrances or restrictions, except such as are not materially significant or
important in relation to its business; (ii) all of the material leases and
subleases under which the Company or any Subsidiary is the lessor or sublessor
of properties or assets or under which the Company or any Subsidiary holds
properties or assets as lessee or sublessee, as described in the Prospectus, are
in full force and effect and, except as described in the Prospectus, neither the
Company nor any Subsidiary is in default in any material respect with respect to
any of the terms or provisions of any of such leases or subleases, and no claim
has been asserted by any party adverse to the rights of the Company or such
Subsidiary as lessor, sublessor, lessee or sublessee under any such lease or
sublease, or affecting or questioning the right of the Company or such
Subsidiary to continued possession of the leased or subleased premises or assets
under any such lease or sublease, except as described or referred to in the
Prospectus; and (iii) the Company and each Subsidiary, as the case may be, owns
or leases all such properties, described in the Prospectus, as are necessary to
its operations as now conducted and, except as otherwise stated in the
Prospectus, as proposed to be conducted as set forth in the Prospectus.
(i) Independent Accountants. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ & Co., LLP anf ▇.▇.
▇▇▇▇ LLP who have each given their report on certain financial statements filed
or to be filed with the Commission as a part of the Registration Statement, and
which are included in the Prospectus, are with respect to the Company,
independent public accountants as required by the Act and the Rules and
Regulations.
(j) Financial Statements. The financial statements and schedules,
together with related notes, set forth in the Registration Statement and the
Prospectus present fairly and accurately the financial position, results of
operations and cash flows of the Company and its Subsidiaries on the basis
stated in the Registration Statement, at the respective dates and for the
respective periods to which they apply, in accordance with Generally Accepted
Accounting Principles ("GAAP"). Such financial statements, schedules and
related notes have been prepared in accordance with GAAP applied on a consistent
basis throughout the entire period involved, except to the extent disclosed
therein. The financial information for each of the periods presented in the
Registration Statement and the Prospectus present a true and complete statement
of the financial position of the Company and its Subsidiaries at the dates
indicated and the results of its operations for the periods then ended, in
accordance with GAAP. The Summary Financial Information and Selected Financial
Data included in the Registration Statement and the Prospectus present fairly
and accurately the information shown therein and have been prepared on a basis
consistent with that of the audited financial statements included in the
Registration Statement and the Prospectus.
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(k) No Material Change. Except as otherwise set forth in the
Prospectus, subsequent to the respective dates as of which information is given
in the Registration Statement and the Prospectus, neither the Company nor any
Subsidiary has: (i) incurred any liability or obligation, direct or contingent,
or entered into any transaction not in the ordinary course of its business,
which is material to its business; (ii) effected or experienced any change in
its capital stock; (iii) issued any options, warrants or other rights to acquire
its capital stock; (iv) declared, paid or made any dividend or distribution of
any kind on its capital stock; or (v) effected or experienced any material
adverse change, or development involving a prospective material adverse change,
in its general affairs, management, business, property, operations, condition
(financial or otherwise) or earnings, whether or not such material adverse
change is or may be converted by insurance.
(l) Litigation. Except as set forth in the Prospectus, there is
not now pending nor, to the best knowledge of the Company, threatened, any
action, suit or proceeding (including any related to environmental matters or
discrimination on the basis of age, sex, religion or race), whether or not in
the ordinary course of business, to which the Company or any Subsidiary is a
party or its business or property is subject, before or by any court or
governmental authority, which might result in any material adverse change in
the business, property, operations, condition (financial or otherwise) or
earnings of the Company or such Subsidiary; and no labor disputes involving
the employees of the Company or any Subsidiary exist which might be expected
to affect materially adversely the business, property, operations, condition
(financial or otherwise) or earnings of the Company or such Subsidiary.
(m) No Unlawful Prospectuses. The Company has not distributed any
prospectus or other offering material in connection with the Offering
contemplated herein, other than any Preliminary Prospectus, the Prospectus or
other material permitted by the Act and the Rules and Regulations.
Additionally, no order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus,
at the time of filing thereof, conformed in all material respects to the
requirements of the Act and the Rules and Regulations.
(n) Taxes. Except as disclosed in the Prospectus, the Company and
each Subsidiary has filed all necessary federal, state, local and foreign income
and franchise tax returns and has paid all taxes shown as due thereon; and there
is no tax deficiency which has been or, to the best knowledge of the Company,
might be asserted against the Company or any Subsidiary.
(o) Licenses, Etc. The Company and each Subsidiary has in effect all
necessary licenses, permits and other governmental authorizations currently
required for the conduct of its business or the ownership of its property, as
described in the Prospectus, and is in all material respects in compliance
therewith. The Company owns or possesses adequate rights to use all material
patents, patent applications, trademarks, ▇▇▇▇ registrations, copyrights and
licenses disclosed in the Prospectus and/or which are necessary for the conduct
of such business, and except as disclosed in the Prospectus has not received any
notice of conflict with the asserted rights of others in respect thereof. To
the best knowledge of the Company, none of the activities or business of the
Company or any
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Subsidiary is in violation of, or would cause the Company or such
Subsidiary to violate, any law, rule, regulation or order of the United States,
any state, county or locality, the violation of which would have a material
adverse effect upon the business, property, operations, condition (financial or
otherwise) or earnings of the Company or such Subsidiary.
(p) No Prohibited Payments. Neither the Company nor any Subsidiary
have, directly or indirectly at any time: (i) made any contribution to any
candidate for political office, or failed to disclose fully any such
contribution in violation of law; or (ii) made any payment to any federal,
state, local or foreign governmental officer or official, or other person
charged with similar public or quasi-public duties, other than payments or
contributions required or allowed by applicable law. The Company's internal
accounting controls and procedures are sufficient to cause the Company to comply
in all material respects with the Foreign Corrupt Practices Act of 1977, as
amended.
(q) Transfer Taxes. On the Closing Dates (as defined in
Section 2(d)), all transfer and other taxes (including franchise, capital stock
and other tax, other than income taxes, imposed by any jurisdiction), if any,
which are required to be paid in connection with the sale and transfer of the
Shares to the Underwriters hereunder shall have been fully paid or provided for
by the Company, and all laws imposing such taxes shall have been fully complied
with.
(r) Exhibits. All contracts and other documents of the Company or
any Subsidiary which are, under the Rules and Regulations, required to be filed
as exhibits to the Registration Statement have been so filed.
(s) Subsidiaries. Except as described in the Prospectus, the Company
has no Subsidiaries. All of the issued and outstanding capital stock of each
Subsidiary is owned by the Company.
(t) Shareholder Agreements, Registration Rights. Except as described
in the Prospectus, no security holder of the Company has any rights with respect
to the purchase, sale or registration of any Securities, and any registration
rights held by any security holders with respect to the Offering have been
effectively waived.
(u) Labor Relations. No labor dispute with the employees of the
Company or any subsidiary exists or, to the best knowledge of the Company, is
imminent; and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its principal suppliers, manufacturers or
contractors which might be expected to result in any material adverse change in
the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise.
2. Purchase, Delivery and Sale of Shares.
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(a) Purchase Price for Shares. The Shares shall be sold to and
purchased by the Underwriters hereunder at the purchase price of $4.50 per Share
(that being the public offering price of $5.00 per Share less an underwriting
discount of ten percent) (the "Purchase Price").
(b) Firm Shares.
(i) Subject to the terms and conditions of this Agreement, and
on the basis of the representations, warranties and agreements herein contained
the Company agrees to issue and sell, and each of the Underwriters agrees,
severally and not jointly, to buy from the Company at the Purchase Price, the
number of Shares set forth opposite such Underwriter's name in Schedule I hereto
(the "Firm Shares").
(ii) Delivery of the Firm Shares against payment therefor shall
take place at the offices of the Representative, ▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Representative's Offices") (or at such other
place as may be designated by agreement between you and the Company) at
10:00 a.m., New York time, on [CLOSING DATE], or at such later time and date,
not later than ten banking days after the Effective Date, as you may designate
(such time and date of payment and delivery for the Firm Shares being herein
called the "First Closing Date"). Time shall be of the essence and delivery of
the Firm Shares at the time and place specified in this Section 2(b)(ii) is a
further condition to the obligations of the Underwriters hereunder.
(c) Option Shares.
(i) In addition, subject to the terms and conditions of this
Agreement, and on the basis of the representations, warranties and agreements
herein contained, the Company hereby grants to the Underwriters an option (the
"Over-Allotment Option") to purchase from the Company all or any part of an
aggregate of an additional 300,000 Shares at the Purchase Price (the "Option
Shares"). In the event that the Over-Allotment Option is exercised by the
Underwriters in whole or in part, each Underwriter shall purchase Option Shares
in the same proportion as the number of Firm Shares purchased by it bore to the
total number of Firm Shares, unless you and the other Underwriters shall
otherwise agree.
(ii) The Over-Allotment Option may be exercised by the
Underwriters, in whole or in part, within 45 days after the Effective Date, upon
notice by you to the Company advising it of the number of Option Shares as to
which the Over-Allotment Option is being exercised, the names and denominations
in which the certificates for the Shares comprising such Option Shares are to be
registered, and the time and date when such certificates are to be delivered.
Such time and date shall be determined by you but shall not be less than four
nor more than ten banking days after exercise of the Over-Allotment Option, nor
in any event prior to the First Closing Date (such time and date being herein
called the "Option Closing Date"). Delivery of the Option Shares against
payment therefor shall take place at the Representative's Offices. Time shall
be of the essence and delivery at the time and place specified in this
Section 2(c)(ii) is a further condition to the obligations of the Underwriters
hereunder.
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(iii) The Over-Allotment Option may be exercised only to
cover over-allotments in the sale by the Underwriters of Firm Shares.
(d) Delivery of Certificates; Payment.
(i) The Company shall make the certificates for the Shares to be
purchased hereunder available to you for checking at least one banking day prior
to the First Closing Date or the Option Closing Date (each, a "Closing Date"),
as the case may be. The certificates shall be in such names and denominations
as you may request at least two banking days prior to the relevant Closing Date.
Time shall be of the essence and the availability of the certificates at the
time and place specified in this Section 2(d)(i) is a further condition to the
obligations of the Underwriters hereunder.
(ii) On the First Closing Date the Company shall deliver to you
for the several accounts of the Underwriters definitive engraved certificates in
negotiable form representing all of the Shares comprising the Firm Shares to be
sold by the Company, against payment of the Purchase Price therefor by you for
the several accounts of the Underwriters, by certified or bank cashier's checks
payable in same day funds, or by wire transfer, to the order of the Company.
(iii) In addition, if and to the extent that the Underwriters
exercise the Over-Allotment Option, then on the Option Closing Date the Company
shall deliver to you for the several accounts of the Underwriters definitive
engraved certificates in negotiable form representing the Shares comprising the
Option Shares to be sold by the Company, against payment of the Purchase Price
therefor by you for the several accounts of the Underwriters, by certified or
bank cashier's checks payable in same day funds to the order of the Company.
(iv) It is understood that the Underwriters propose to offer the
Shares to be purchased hereunder to the public, upon the terms and conditions
set forth in the Registration Statement, after the Registration Statement
becomes effective.
3. Covenants.
Covenants of the Company. The Company covenants and agrees with each
Underwriter that:
(a) Registration.
(i) The Company shall use its best efforts to cause the
Registration Statement to become effective and, upon notification from the
Commission that the Registration Statement has become effective, shall so advise
you and shall not at any time, whether before or after the Effective Date, file
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus of which you shall not previously have been advised and furnished
with a copy, or to which you or Representative's Counsel shall
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have objected in writing, or which is not in compliance with the Act and the
Rules and Regulations. At any time prior to the later of (A) the completion by
the Underwriters of the distribution of the Shares contemplated hereby (but in
no event more than nine months after the Effective Date), and (B) 25 days after
the Effective Date, the Company shall prepare and file with the Commission,
promptly upon your request, any amendments to the Registration Statement or any
amendments or supplements to the Prospectus which, in your reasonable opinion,
may be necessary or advisable in connection with the distribution of the Shares.
(ii) Promptly after you or the Company shall have been advised
thereof, you shall advise the Company or the Company shall advise you, as the
case may be, and confirm such advice in writing, of (A) the receipt of any
comments of the Commission, (B) the effectiveness of any post-effective
amendment to the Registration Statement, (C) the filing of any supplement to the
Prospectus or any amended Prospectus, (D) any request made by the Commission for
amendment of the Registration Statement or amendment or supplementing of the
Prospectus, or for additional information with respect thereto, or (E) the
issuance by the Commission or any state or regulatory body of any stop order or
other order denying or suspending the effectiveness of the Registration
Statement, or preventing or suspending the use of any Preliminary Prospectus, or
suspending the qualification of the Securities for offering in any jurisdiction,
or otherwise preventing or impairing the Offering, or the institution or threat
of any proceeding for any of such purposes. The Company and you shall not
acquiesce in such order or proceeding, and shall instead actively defend such
order or proceeding, unless the Company and you agree in writing to such
acquiescence.
(iii) The Company has caused to be delivered to you copies of
each Preliminary Prospectus, and the Company has consented and hereby consents
to the use of such copies for the purposes permitted by the Act. The Company
authorizes the Underwriters and selected dealers to use the Prospectus in
connection with the sale of the Shares for such period as in the opinion of
Representative's Counsel the use thereof is required to comply with the
applicable provisions of the Act and the Rules and Regulations. In case of the
happening, at any time within such period as a prospectus is required under the
Act to be delivered in connection with sales by an underwriter or dealer, of any
event of which the Company has knowledge and which materially affects the
Company or the Securities, or which in the opinion of Company Counsel or of
Representative's Counsel should be set forth in an amendment to the Registration
Statement or an amendment or supplement to the Prospectus in order to make the
statements made therein not then misleading, in light of the circumstances
existing at the time the Prospectus is required to be delivered to a purchaser
of the Shares, or in case it shall be necessary to amend or supplement the
Prospectus to comply with the Act or the Rules and Regulations, the Company
shall notify you promptly and forthwith prepare and furnish to the Underwriters
copies of such amended Prospectus or of such supplement to be attached to the
Prospectus, in such quantities as you may reasonably request, in order that the
Prospectus, as so amended or supplemented, shall not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements in the Prospectus, in the light of the
circumstances under which they are made, not misleading. The preparation and
furnishing of each such amendment to the Registration Statement, amended
Prospectus or
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supplement to be attached to the Prospectus shall be without expense to the
Underwriters, except that in the case that the Underwriters are required, in
connection with the sale of the Shares, to deliver a prospectus nine months or
more after the Effective Date, the Company shall upon your request and at the
expense of the Underwriters, amend the Registration Statement and amend or
supplement the Prospectus, or file a new registration statement on Form SB-2 (if
applicable) or Form S-1, if necessary, and furnish the Underwriters with
reasonable quantities of prospectuses complying with section 10(a)(3) of the
Act.
(iv) The Company shall comply with the Act, the Rules and
Regulations, and the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations promulgated thereunder in connection with
the offering and issuance of the Securities.
(b) Blue Sky. The Company shall, at its own expense, use its best
efforts to qualify or register the Securities for sale under the securities or
"blue sky" laws of such jurisdictions as you may designate, and shall make such
applications and furnish such information to Representative's Counsel as may be
required for that purpose, and shall comply with such laws; provided, however,
that the Company shall not be required to qualify as a foreign corporation or a
dealer in securities or to execute a general consent to service of process in
any jurisdiction in any action other than one arising out of the offering or
sale of the Common Stock. The Company shall bear all of the expense of such
qualifications and registrations, including without limitation the legal fees
and disbursements of Representative's Counsel, which fees, exclusive of
disbursements, shall not exceed $25,000 (unless otherwise agreed). After each
Closing Date the Company shall, at its own expense, from time to time take such
actions and prepare and file such statements and reports as may be required to
continue each such qualification in effect for so long a period as you may
reasonably request.
(c) Exchange Act Registration. The Company shall, at its own
expense, prepare and file with the Commission a registration statement (on
Form 8-A or Form 10) under section 12(b) or 12(g) of the Exchange Act
concurrently with the completion of the Offering or promptly thereafter, but in
no event later than 45 days from the Effective Date, and shall use its best
efforts to cause such registration statement to be declared effective and
maintained in effect for at least five years from the Effective Date.
(d) Prospectus Copies. The Company shall deliver to you on or before
the First Closing Date two signed copies of the Registration Statement including
all financial statements, schedules and exhibits filed therewith, and of all
amendments thereto. The Company shall deliver to or on the order of the
Underwriters, from time to time until the Effective Date, as many copies of any
Preliminary Prospectus filed with the Commission prior to the Effective Date as
the Underwriters may reasonably request. The Company shall deliver to the
Underwriters on the Effective Date, and thereafter for so long as a prospectus
is required to be delivered under the Act, from time to time, as many copies of
the Prospectus, in final form, or as thereafter amended or supplemented, as the
Underwriters may from time to time reasonably request.
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(e) Amendments and Supplements. The Company shall, promptly upon
your request, prepare and file with the Commission any amendments to the
Registration Statement, and any amendments or supplements to the Preliminary
Prospectus or the Prospectus, and take any other action which in the reasonable
opinion of Representative's Counsel may be reasonably necessary or advisable in
connection with the distribution of the Securities, and shall use its best
efforts to cause the same to become effective as promptly as possible.
(f) Certain Market Practices. The Company has not taken, and shall
not take, directly or indirectly, any action designed, or which might reasonably
be expected, to cause or result in, or which has constituted, the stabilization
or manipulation of the price of the Securities to facilitate the sale or resale
thereof.
(g) Certain Representations. Neither the Company nor any
representative of the Company has made or shall make any written or oral
representation in connection with the Offering and sale of the Securities or the
Representative's Warrant which is not contained in the Prospectus, which is
otherwise inconsistent with or in contravention of anything contained in the
Prospectus, or which shall constitute a violation of the Act, the Rules and
Regulations, the Exchange Act or the rules and regulations promulgated under the
Exchange Act.
(h) Continuing Registration of Warrants and Underlying Common Stock.
For so long as any portion of the Representative's Warrant is outstanding and
exercisable, the Company shall, at its own expense and within 15 days of receipt
from the Representative of notice of the Representative's intent to exercise all
or any portion of the Representative's Warrant: (i) use its best efforts to
cause post-effective amendments to the Registration Statement, or new
registration statements (which may be on Forms ▇▇-▇, ▇-▇ or S-3, or any
successor form, as the case may be) relating to the Representative's Warrant and
the Common Stock underlying the Representative's Warrant to become effective in
compliance with the Act and without any lapse of time between the effectiveness
of the Registration Statement and of any such post-effective amendment or new
registration statement; (ii) cause a copy of each Prospectus, as then amended,
to be delivered to each holder of record of a portion of the Representative's
Warrant; (iii) furnish to the Underwriters and dealers as many copies of each
such Prospectus as the Underwriters or dealers may reasonably request; and
(iv) maintain the "blue sky" qualification or registration of the
Representative's Warrant and the Common Stock underlying the Representative's
Warrant, or have a currently available exemption therefrom, in each jurisdiction
in which the Securities were so qualified or registered for purposes of the
Offering. In addition, for so long as any portion of the Representative's
Warrant is outstanding, the Company shall promptly notify you of any material
change in the business, financial condition or prospects of the Company.
(i) Use of Proceeds. The Company shall apply the net proceeds from
the sale of the Shares for the purposes set forth in the Prospectus under the
caption "USE OF PROCEEDS," and shall file such reports with the Commission with
respect to the sale of the Shares and the application of the proceeds therefrom
as may be required pursuant to Rule 463 of the Rules and Regulations.
-11-
(j) Twelve Months' Earnings Statement. The Company shall make
generally available to its security holders and deliver to you as soon as it is
practicable so to do, but in no event later than 90 days after the end of twelve
months after the close of its current fiscal quarter, an earnings statement
(which need not be audited) covering a period of at least twelve consecutive
months beginning after the Effective Date, which shall satisfy the requirements
of section 11(a) of the Act.
(k) NASDAQ, Exchange Listings, Etc. The Company shall immediately
make all filings required to seek approval for the quotation of the Securities
on The Nasdaq National Market ("NASDAQ"), the Pacific Stock Exchange ("Pacific")
and the Chicago Stock Exchange ("Chicago") and shall use its best efforts to
effect and maintain such approvals for at least five years from the Effective
Date. The Company shall also use its best efforts to cause the Securities to be
accepted for listing such other exchange(s) acceptable to you, prior to the
Effective Date or, failing that, as soon as is possible after the First Closing
Date, and to maintain such listings for five years. Within 10 days after the
Effective Date, the Company shall also use its best efforts to list itself in
▇▇▇▇▇'▇ OTC Industrial Manual and to cause such listing to be maintained for
five years from the Effective Date.
(l) Board of Directors. The Company shall maintain a Board of
Directors comprised of a minimum of six and a maximum of eight directors, at
least a majority of whom shall be neither employed by nor otherwise affiliated
with the Company. The Board of Directors shall hold at least four meetings
annually.
(m) Periodic Reports. For so long as the Company is a reporting
company under section 12(g) or section 15(d) of the Exchange Act, the Company
shall, at its own expense, furnish to its shareholders an annual report
(including financial statements audited by certified public accountants) in
reasonable detail. In addition, during the period ending five years from the
date hereof, the Company shall, at its own expense, furnish to you: (i) within
90 days of the end of each fiscal year, a balance sheet of the Company and its
Subsidiaries as at the end of such fiscal year, together with statements of
income, stockholders' equity and cash flows of the Company and its Subsidiaries
as at the end of such fiscal year, all in reasonable detail and accompanied by a
copy of the certificate or report thereon of certified public accountants;
(ii) as soon as they are available, a copy of all reports (financial or
otherwise) distributed to security holders; (iii) as soon as they are available,
a copy of all non-confidential reports and financial statements furnished to or
filed with the Commission; and (iv) such other information as you may from time
to time reasonably request. The financial statements referred to herein shall
be on a consolidated basis to the extent the accounts of the Company and its
Subsidiaries are consolidated in reports furnished to its shareholders
generally. In addition, during the period ending one year from the date hereof,
the Company shall, at its own expense, furnish you monthly with Depository Trust
Company stock transfer sheets.
(n) Certain Options. For a period of 90 days following the First
Closing Date, the Company shall not, without your prior written consent, grant
any options, warrants or
-12-
other rights to purchase shares of Common Stock at a price less than the initial
public Offering price of the Shares.
(o) Form S-8 Registrations. For a period of one year following the
First Closing Date, the Company shall not register or otherwise facilitate the
registration of any of its securities issuable upon the exercise of options,
warrants (other than the Representative's Warrant) or other rights, whether by
means of a Registration Statement on Form S-8 or otherwise, without your prior
written consent.
(p) Future Sales. For a period of 12 months following the First
Closing Date, the Company shall not sell or otherwise dispose of any securities
of the Company without your prior written consent, which consent shall not be
unreasonably withheld; provided, however, that the Company may at any time issue
shares of Common Stock pursuant to the exercise of the Representative's Warrant,
and options, warrants or conversion rights issued and outstanding on the
Effective Date and described in the Prospectus. In addition, for a period of
two years following the First Closing Date, the Company shall not sell or
otherwise dispose of any shares of Preferred Stock without your prior written
consent. Additionally, for a period of 24 months following the First Closing
Date, the Company shall not issue or sell any securities pursuant to Regulation
D or Regulation S under the Act without your prior written consent, which
consent shall not be unreasonably withheld.
(q) Rule 144 Sales. The Company shall cause each of its officers and
directors to provide you the right, for a period of three years following the
First Closing Date, to purchase for your own account, or to sell for the account
of such person, all securities of the Company sold by such person pursuant to
Rule 144 of the Rules and Regulations. The Company shall use its best efforts
to cause each of the other beneficial holders of at least 5 percent of the
Company's securities to provide you the right, for a period of three years
following the First Closing Date, to purchase for your own account, or to sell
for the account of such holder, all securities of the Company sold by such
holder pursuant to said Rule 144.
(r) Available Shares. The Company shall reserve and at all times
keep available that maximum number of its authorized but unissued Securities
which are issuable upon exercise of the Representative's Warrant, taking into
account the anti-dilution provisions thereof.
(s) Agreement of Management and Shareholders. On or before the
Effective Date, the Company shall cause the parties named therein to execute and
deliver to you an agreement, in the form previously delivered to the Company by
you, regarding certain undertakings by such parties in connection with the
Offering (the "Agreement of Management and Shareholders").
(t) Financial Consulting Agreement. On the First Closing Date and
simultaneously with the delivery of the Firm Shares, the Company shall execute
and deliver to you an agreement with you, in the form previously delivered to
the Company by you, regarding your services as a financial consultant to the
Company (the "Financial Consulting Agreement").
-13-
(u) M/A Agreement. On the First Closing Date and simultaneously with
the delivery of the Firm Shares, the Company shall execute and deliver to you an
agreement with you, in the form previously delivered to the Company by you,
regarding mergers, acquisitions, joint ventures and certain other forms of
transactions (the "M/A Agreement").
(v) Management. On each Closing Date, management of the Company
shall consist of ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as Chairman of the Board of Directors, ▇▇▇▇▇
▇▇▇▇▇▇▇ as President and Chief Executive Officer and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ as
Executive Vice President. Prior to the Effective Date the Company shall have
obtained "key man" life insurance coverage on the life of each of such officers,
naming the Company as beneficiary and having a face value of at least one
million dollars for terms, and with an insurance agency, mutually agreed upon by
the Company and you. The Company shall use its best efforts to maintain such
insurance during the three-year period commencing on the First Closing Date.
(w) Public Relations. Prior to the Effective Date, the Company shall
have retained a public relations firm acceptable to you, and shall continue to
retain such firm, or an alternate firm acceptable to you, for a minimum period
of two years or such terms as are acceptable to you. The public relations firm
shall, at a minimum: (i) have five years experience in Nasdaq; (ii) covenant to
the Company that it will make introductions to potential institutional buyers;
(iii) provide the Company with a list of all current public clients; and (iv)
engage in such other actions as you shall reasonably request.
(x) Bound Volumes. Within 90 days from the First Closing Date, the
Company shall deliver to you, at the Company's expense, three bound volumes in
form and content acceptable to you, containing the Registration Statement and
all exhibits filed therewith and all amendments thereto, and all other
agreements, correspondence, filings, certificates and other documents filed
and/or delivered in connection with the Offering.
(y) Board of Directors Seat/Observer. For a period of thirty-six
(36) months from the closing of the Offering, you shall have the option to
either: (i) select an observer designated by you and acceptable to the Company,
to receive notice of and to attend all meetings of the Board of Directors of the
Company (the "Observer"); or (ii) appoint a member of the Company's Board of
Directors (a "Director"). In the event you elect to appoint an Observer, such
Observer shall have no voting rights, and shall be reimbursed for all
out-of-pocket expenses incurred in attending meetings of the Board of Directors.
In the event you elect to appoint a Director, such Director shall have full
voting rights and such other rights as the Company's other Directors, without
limitation. Such Director shall receive the same reimbursement and compensation
as the Company's other Directors. The Company shall hold at least four meetings
of the Board of Directors per year. If you elect to appoint an Observer, the
Observer will be indemnified by the Company against any claims arising out of
his participation at Board meetings. If you appoint a Director, such Director
shall specifically be covered by the Company's Officers and Directors insurance
policy.
(z) Officers and Directors Insurance. Three days prior to the First
Closing Date, the Company shall have obtained Officers and Directors insurance
satisfactory to you with a minimum face value of one million dollars
($1,000,000).
-14-
(aa) Stock Transfer Sheets. The Company shall supply you with OTC
Stock Transfer sheets on a weekly basis for the first six weeks following the
First Closing Date, and for six weeks following the Option Closing Date, and on
a monthly basis thereafter.
4. Conditions to Underwriters' Obligations. The obligations of the
several Underwriters to purchase and pay for the Shares which they have agreed
to purchase hereunder are subject to the accuracy (as of the date hereof and as
of each Closing Date) of and compliance with the representations and warranties
of the Company contained herein, the performance by the Company of all of its
obligations hereunder and the execution, delivery and performance by each of the
parties thereto of all of their obligations under the Agreement of Management
and Shareholders, and the following further conditions:
(a) Effective Registration Statement; No Stop Order. The
Registration Statement shall have become effective and you shall have received
notice thereof not later than 6:00 p.m., New York time, on the date of this
Agreement, or at such later time or on such later date as to which you may agree
in writing. In addition, on each Closing Date (i) no stop order denying or
suspending the effectiveness of the Registration Statement shall be in effect,
and no proceedings for that or any similar purpose shall have been instituted or
shall be pending or, to your knowledge or to the knowledge of the Company, shall
be contemplated by the Commission, and (ii) all requests on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of Representative's Counsel.
(b) Opinion of Company Counsel. On the First Closing Date, you shall
have received the opinion, dated as of the First Closing Date, of Company
Counsel, in form and substance satisfactory to Representative's Counsel, to the
effect that:
(i) the Company and each Subsidiary has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the State of Delaware, respectively, with full power
and corporate authority to own their properties and conduct their
businesses as described in the Prospectus, and each of the Company and
its Subsidiaries is duly qualified or licensed to do business as a
foreign corporation and is in good standing in each other jurisdiction
in which the nature of its business or the character or location of
its properties requires such qualification, except where failure so to
qualify will not materially affect the business, properties or
financial condition of the Company or such Subsidiary;
(ii) to the best knowledge of such counsel, (A) the Company
and each Subsidiary has obtained all necessary licenses, permits and
other governmental authorizations currently required for the conduct
of its business or the ownership of its property, as described in the
Prospectus, (B) such obtained licenses, permits and other governmental
authorizations are in full force and effect, and (C) the Company and
each Subsidiary is, in all material respects, in compliance therewith;
-15-
(iii) (A) the authorized capitalization of the Company
as of the date of the Prospectus was as is set forth in the Prospectus
under the caption "CAPITALIZATION;" (B) all of the shares of Common
Stock now outstanding have been duly authorized and validly issued,
are fully paid and non-assessable, conform to the description thereof
contained in the Prospectus, have not been issued in violation of the
preemptive rights of any shareholder and, except as described in the
Prospectus, are not subject to any restrictions upon the voting or
transfer thereof; (C) all of the Shares have been duly authorized and,
when paid for as provided herein, shall be validly issued, fully paid
and non-assessable, shall not have been issued in violation of the
preemptive rights of any shareholder, and no personal liability shall
attach to the ownership thereof; (D) the shareholders of the Company
do not have any preemptive rights or other rights to subscribe for or
purchase, and there are no restrictions upon the voting or transfer
of, any of the Securities except as set forth in the prospectus or as
otherwise required by the Underwriters; (E) the Shares and the
Representative's Warrant conform to the respective descriptions
thereof contained in the Prospectus; (F) all prior sales of the
Company's securities have been made in compliance with, or under an
exemption from, the Act and applicable state securities laws; (G) a
sufficient number of shares of Common Stock has been reserved for
issuance upon exercise of the Representative's Warrant; and (H) to the
best knowledge of such counsel, neither the filing of the Registration
Statement nor the offering or sale of the Shares as contemplated by
this Agreement gives rise to any registration rights or other rights,
other than those which have been effectively waived or satisfied, for
or relating to the registration of any securities of the Company;
(iv) the certificates evidencing the Shares are each in
valid and proper legal form under the laws of Delaware; and the
Representative's Warrant is exercisable for shares of Common Stock in
accordance with its terms and at the prices therein provided for;
(v) this Agreement, the Representative's Warrant, the
Financial Consulting Agreement and the M/A Agreement have been duly
and validly authorized, executed and delivered by the Company and
(assuming due execution and delivery thereof by each party other than
the Company) all of such agreements are, or when duly executed shall
be, the valid and legally binding obligations of the Company,
enforceable in accordance with their respective terms (except as
enforceability may be limited by bankruptcy, insolvency or other laws
affecting the rights of creditors generally); provided, however, that
no opinion need be expressed as to the enforceability of the indemnity
provisions contained in Section 6 or the contribution provisions
contained in Section 7;
(vi) to the best knowledge of such counsel, (A) there is no
pending, threatened or contemplated legal or governmental proceeding
affecting the Company or any Subsidiary which could materially and
adversely affect the business, property, operations, condition
(financial or otherwise) or earnings of
-16-
the Company or such Subsidiary, or which questions the validity of the
Offering, the Securities, this Agreement, the Representative's Warrant, the
Financial Consulting Agreement or the M/A Agreement, or of any action taken
or to be taken by the Company pursuant thereto; and (B) there is no legal
or governmental proceeding or regulation required to be described or
referred to in the Registration Statement which is not so described or
referred to;
(vii) to the best knowledge of such counsel, (A) the
Company is not in violation of or default under this Agreement, the
Representative's Warrant, the Financial Consulting Agreement or the
M/A Agreement; and (B) the execution and delivery hereof and thereof
and the incurrence of the obligations herein and therein set forth and
the consummation of the transactions herein or therein contemplated
shall not result in a violation of, or constitute a default under, the
Certificate of Incorporation or By-laws of the Company, or any
material obligation, agreement, covenant or condition contained in any
bond, debenture, note or other evidence of indebtedness, or in any
material contract, indenture, mortgage, loan agreement, lease, joint
venture or other agreement or instrument to which the Company is a
party or by which its assets are bound, or any material order, rule,
regulation, writ, injunction or decree of any government, governmental
instrumentality or court;
(viii) the Registration Statement has become effective under
the Act, and to the best knowledge of such counsel, no stop order denying
or suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for that or any similar purpose have been instituted or
are pending before or threatened by the Commission;
(ix) the Registration Statement and the Prospectus (except for
the financial statements, notes thereto and other financial information and
statistical data contained therein, as to which no opinion need be
rendered), comply as to form in all material respects with the Act and the
Rules and Regulations;
(x) all descriptions contained in the Registration
Statement or the Prospectus of contracts and other documents are
accurate and fairly present the information required to be described,
and such counsel is familiar with all contracts and other documents
referred to in the Registration Statement and the Prospectus or filed
as exhibits to the Registration Statement and, to the best knowledge
of such counsel, no contract or document of a character required to be
summarized or described therein or to be filed as an exhibit thereto
is not so summarized, described or filed;
(xi) the descriptions contained in the Registration
Statement and the Prospectus which purport to summarize the provisions
of statutes, rules and regulations are accurate summaries in all
material respects, and such descriptions fairly present in all
material respects the information shown, and the other descriptions
contained in the Registration Statement and the Prospectus that
-17-
concern matters of law or legal conclusions have been reviewed by such
counsel and are materially correct;
(xii) the Agreement of Management and Shareholders have
been duly and validly executed and delivered by each party thereto
(other than American Stock Transfer & Trust Company); and
(xiii) except for registration under the Act and
registration or qualification of the Securities under applicable state
or foreign securities or blue sky laws, no authorization, approval,
consent or license of any governmental or regulatory authority or
agency is necessary in connection with: (A) the authorization,
issuance, sale, transfer or delivery of the Securities by the Company;
(B) the execution, delivery and performance of this Agreement by the
Company or the taking of any action contemplated herein; (C) the
issuance of the Representative's Warrant or the Securities issuable
upon exercise thereof; or (D) the execution, delivery and performance
of this Agreement by the Company or the taking of any action
contemplated herein.
Such opinion shall also state that such counsel has participated in the
preparation of the Registration Statement and the Prospectus, and nothing has
come to the attention of such counsel to cause such counsel to have reason to
believe that the Registration Statement at the time it became effective
contained any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, or that the Prospectus contains any untrue statement of
a material fact or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading (except, in the case of both the Registration Statement and the
Prospectus, for the financial statements, notes thereto and other financial
information and statistical data contained therein, as to which no opinion need
be expressed. Such opinion shall also cover such matters incident to the
transactions contemplated hereby as you or Representative's Counsel shall
reasonably request. In rendering such opinion, Company Counsel may rely as to
matters of fact upon certificates of officers of the Company, and of public
officials and may rely as to all matters of law other than the law of the United
States or the State of Delware upon opinions of counsel satisfactory to you, in
which case the opinion shall state that they have no reason to believe that you
and they are not entitled so to rely.
(c) Corporate Proceedings. All corporate proceedings and other legal
matters relating to this Agreement, the Registration Statement, the Prospectus
and other related matters shall be reasonably satisfactory to or approved by
Representative's Counsel, and you shall have received from such counsel a signed
opinion, dated as of the First Closing Date, with respect to the validity of the
issuance of the Securities, the form of the Registration Statement and
Prospectus (other than the financial statements and other financial or
statistical data contained therein), the execution of this Agreement and other
related matters as you may reasonably require. The Company shall have furnished
to Representative's Counsel such documents as they may reasonably request for
the purpose of enabling them to render such opinion.
-18-
(d) Comfort Letters. Prior to the Effective Date, and again on and
as of the First Closing Date, you shall have received a letter from ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ & Co., LLP, certified public accountants for the Company, substantially
in the form approved by you. Additionally, you shall have received "no-default
letters" from all financial institutions with which the Company and any
subsidiary conducts its business. Such letters shall confirm that: (i) the
Company or any subsidiary is not presently in default on any indenture, credit
agreement, line of credit, promissory note or any other agreement between such
financial institution and the Company ("Bank Agreements"); (ii) that such
financial institution knows of no reason why the Company or any subsidiary,
either presently or with the passage of time, would default upon any Bank
Agreements; and (iii) that the completion of the Offering in accordance with its
terms will not result in a default by the Company or any subsidiaries on any
Bank Agreements. Furthermore, you shall have received litigation "comfort
letters" from the Company's (including any subsidiary) litigation counsel. Such
letters shall describe in detail any litigation to which the Company or any
subsidiary is a party or with respect to which the Company or any subsidiary is
likely to become a party. Additionally, such letters shall discuss the merits
of the Company's or any subsidiary's case as well as the merits of any claims
third parties may have against the Company or any subsidiary and the likelihood
that any such claims will be resolved successfully in favor of the Company or
any subsidiary.
(e) Bring Down. At each of the Closing Dates, (i) the
representations and warranties of the Company contained in this Agreement shall
be true and correct with the same effect as if made on and as of such Closing
Date, and the Company shall have performed all of its respective obligations
hereunder and satisfied all the conditions on its part to be satisfied at or
prior to such Closing Date; (ii) the Registration Statement and the Prospectus
shall contain all statements which are required to be stated therein in
accordance with the Act and the Rules and Regulations, and shall in all material
respects conform to the requirements of the Act and the Rules and Regulations,
and neither the Registration Statement nor the Prospectus shall contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein not
misleading; (iii) there shall have been, since the respective dates as of which
information is given, no material adverse change in the business, property,
operations, condition (financial or otherwise), earnings, capital stock,
long-term or short-term debt or general affairs of the Company from that set
forth in the Registration Statement and the Prospectus, except changes which the
Registration Statement and Prospectus indicate might occur after the Effective
Date, and the Company shall not have incurred any material liabilities nor
entered into any material agreement other than as referred to in the
Registration Statement and Prospectus; and (iv) except as set forth in the
Prospectus, no action, suit or proceeding shall be pending or threatened against
the Company which would be required to be disclosed in the Registration
Statement, and no proceedings shall be pending or threatened against the Company
before or by any commission, board or administrative agency in the United States
or elsewhere, wherein an unfavorable decision, ruling or finding would
materially adversely affect the business, property, operations, condition
(financial or otherwise), earnings or general affairs of the Company. In
addition, you shall have received, at the First Closing Date, a certificate
signed by the principal executive officer and by the principal financial officer
of the Company, dated as of the First Closing Date, evidencing compliance with
the provisions of this Section 4(e).
-19-
(f) Opinion of Patent Counsel. On the First Closing Date, you shall
have received the opinion, dated as of the First Closing Date, of
_____________________, patent counsel to the Company, in form and substance
satisfactory to Representative's Counsel, to the effect that the descriptions
contained in the Registration Statement and the Prospectus which purport to
summarize the provisions of statutes, rules and regulations pertaining to
patents and trademarks are accurate summaries in all respects, and such
descriptions fairly present in all respects the information shown, and the
descriptions contained in the Registration Statement and the Prospectus that
concern matters of law or legal conclusions with respect to patents and
trademarks have been reviewed by such counsel and are correct.
(g) Transfer and Warrant Agent. On or before the Effective Date, the
Company shall have appointed American Stock Transfer & Trust Company (or other
agent mutually acceptable to the Company and you), as its transfer agent and
warrant agent to transfer all of the Shares issued in the Offering and the
Representative's Warrant, as well as to transfer other shares of the Common
Stock outstanding from time to time.
(h) Certain Further Matters. On each Closing Date, Representative's
Counsel shall have been furnished with all such other documents and certificates
as they may reasonably request for the purpose of enabling them to render their
legal opinion to the Underwriter and in order to evidence the accuracy and
completeness of any of the representations, warranties or statements, the
performance of any of the covenants, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company on or
prior to each of the Closing Dates in connection with the authorization,
issuance and sale of the Securities as herein contemplated shall be reasonably
satisfactory in form and substance to you and to Representative's Counsel.
(i) Additional Conditions. Upon exercise of the Over-Allotment
Option, the Underwriters' obligations to purchase and pay for the Option Shares
shall be subject (as of the date hereof and as of the Option Closing Date) to
the following additional conditions:
(i) The Registration Statement shall remain effective at the
Option Closing Date, no stop order denying or suspending the effectiveness
thereof shall have been issued, and no proceedings for that or any similar
purpose shall have been instituted or shall be pending or, to your knowledge or
the knowledge of the Company, shall be contemplated by the Commission, and all
reasonable requests on the part of the Commission for additional information
shall have been complied with to the satisfaction of Representative's Counsel.
(ii) On the Option Closing Date there shall have been delivered
to you the signed opinion of Company Counsel, dated as of the Option Closing
Date, in form and substance satisfactory to Representative's Counsel, which
opinion shall be substantially the same in scope and substance as the opinion
furnished to you on the First Closing Date pursuant to Section 4(b), except that
such opinion, where appropriate, shall cover the Option Shares rather than the
Firm Shares. If the First Closing Date is the same as the Option Closing Date,
such opinions may be combined.
-20-
(iii) All proceedings taken at or prior to the Option Closing Date
in connection with the sale and issuance of the Option Shares shall be
satisfactory in form and substance to you, and you and Representative's Counsel
shall have been furnished with all such documents, certificates and opinions as
you may request in connection with this transaction in order to evidence the
accuracy and completeness of any of the representations, warranties or
statements of the Company or its compliance with any of the covenants or
conditions contained herein.
(iv) On the Option Closing Date there shall have been delivered
to you a letter in form and substance satisfactory to you from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
& Co., LLC, dated the Option Closing Date and addressed to you, confirming the
information in their letter referred to in Section 4(d) as of the date thereof
and stating that, without any additional investigation required, nothing has
come to their attention during the period from the ending date of their review
referred to in such letter to a date not more than five banking days prior to
the Option Closing Date which would require any change in such letter if it were
required to be dated the Option Closing Date.
(v) On the Option Closing Date there shall have been delivered
to you a certificate signed by the principal executive officer and by the
principal financial or accounting officer of the Company, dated the Option
Closing Date, in form and substance satisfactory to Representative's Counsel,
substantially the same in scope and substance as the certificate furnished to
you on the First Closing Date pursuant to Section 4(e), dated the Option Closing
Date, in form and substance satisfactory to Representative's Counsel,
substantially the same in scope and substance as the certificate furnished to
you by the Company on the First Closing Date pursuant to Section 4(e).
(j) Cancellation. If any of the conditions provided by this
Section 4 shall not have been completely fulfilled as of the date indicated,
then this Agreement and all obligations of the Underwriters hereunder may be
cancelled at, or at any time prior to, either Closing Date by your notifying the
Company of such cancellation in writing or by telegram at or prior to the
applicable Closing Date. Any such cancellation shall be without liability of
the Underwriters to the Company, except as otherwise provided herein.
5. Conditions to the Obligations of the Company. The obligations of the
Company to sell and deliver the Shares are subject to the following conditions:
(a) Effective Registration Statement. The Registration Statement
shall have become effective not later than 6:00 p.m. New York time, on the date
of this Agreement, or at such later time or on such later date as the Company
and you may agree in writing.
(b) No Stop Order. On the applicable Closing Date, no stop order
denying or suspending the effectiveness of the Registration Statement shall have
been issued under the Act or any proceedings therefor initiated or threatened by
the Commission.
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(c) Payment for Shares. On the applicable Closing Date, you shall
have made payment, for the several accounts of the Underwriters, of the
aggregate Purchase Price for the Shares then being purchased, by certified or
bank cashier's checks payable in same day funds or wire transfer to the order of
the Company.
If the conditions to the obligations of the Company provided by this Section 5
have been fulfilled on the First Closing Date but are not fulfilled after the
First Closing Date and prior to the Option Closing Date, then only the
obligation of the Company to sell and deliver the Option Shares upon exercise of
the Over-Allotment Option shall be affected.
6. Indemnification.
(a) Indemnification by the Company. As used in this Agreement, the
term "Liabilities" shall mean any and all losses, claims, damages and
liabilities, and actions and proceedings in respect thereof (including without
limitation all reasonable costs of defense and investigation and all attorneys'
fees) including without limitation those asserted by any party to this Agreement
against any other party to this Agreement. The Company hereby indemnifies and
holds harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of the Act, from and against all Liabilities,
joint or several, to which such Underwriter or such controlling person may
become subject, under the Act or otherwise, insofar as such Liabilities arise
out of or are based upon: (i) any untrue statement or alleged untrue statement
of any material fact contained in (A) the Registration Statement or any
amendment thereto, or the Prospectus or any Preliminary Prospectus, or any
amendment or supplement thereto, or (B) any "blue sky" application or other
document executed by the Company specifically for that purpose, or based upon
written information furnished by the Company, filed in any state or other
jurisdiction in order to qualify any or all of the Securities under the
securities laws thereof (any such application, document or information being
herein called a "Blue Sky Application"); or (ii) the omission or alleged
omission to state in the Registration Statement or any amendment thereto, or the
Prospectus or any Preliminary Prospectus, or any amendment or supplement
thereto, or in any Blue Sky Application, a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided,
however, that the Company shall not be liable in any such case to the extent,
but only to the extent, that any such Liabilities arise out of or are based upon
an untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with written information furnished to
the Company through you by or on behalf of any Underwriter specifically for use
in the preparation of the Registration Statement or any such amendment thereto,
or the Prospectus or any such Preliminary Prospectus, or any such amendment or
supplement thereto, or any such Blue Sky Application. The foregoing indemnity
shall be in addition to any other liability which the Company may otherwise
have.
(b) Indemnification by Underwriters. Each Underwriter, severally and
not jointly, hereby indemnifies and holds harmless the Company, each of its
directors, each nominee (if any) for director named in the Prospectus, each of
its officers who have signed the Registration Statement, and each person, if
any, who controls the Company within the
-22-
meaning of the Act, from and against all Liabilities to which the Company or any
such director, nominee, officer or controlling person may become subject under
the Act or otherwise, insofar as such Liabilities arise out of or are based upon
(i) any untrue statement or alleged untrue statement of any material fact
contained in the Registration Statement or any amendment thereto, or the
Prospectus or any Preliminary Prospectus, or any amendment or supplement
thereto, or (ii) the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
any such Liabilities arise out of or are based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement or any amendment thereto, or the Prospectus or any
Preliminary Prospectus, or any amendment or supplement thereto, in reliance upon
and in conformity with written information furnished to the Company through you,
by or on behalf of such Underwriter, specifically for use in the preparation
thereof. In no event shall any Underwriter be liable or responsible for any
amount in excess of the compensation received by such Underwriter, in the form
of underwriting discounts or otherwise, pursuant to this Agreement or any other
agreement contemplated hereby.
(c) Procedure. Promptly after receipt by an indemnified party under
this Section 6 of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Section 6, notify in writing the indemnifying
party of the commencement thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 6. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent that it may wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
subject to the provisions hereof, with counsel reasonably satisfactory to such
indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under this
Section 6 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. The indemnified party shall have the right to employ
separate counsel in any such action and to participate in the defense thereof,
but the fees and expenses of such counsel shall not be at the expense of the
indemnifying party if the indemnifying party has assumed the defense of the
action with counsel reasonably satisfactory to the indemnified party; provided,
however, that if the indemnified party is any Underwriter or a person who
controls any Underwriter within the meaning of the Act, the fees and expenses of
such counsel shall be at the expense of the indemnifying party if (i) the
employment of such counsel has been specifically authorized in writing by the
indemnifying party, or (ii) the named parties to any such action (including any
impleaded parties) include both such Underwriter or such controlling person and
the indemnifying party and, in your judgment, it is advisable for such
Underwriter or controlling person to be represented by separate counsel (in
which case the indemnifying party shall not have the right to assume the defense
of such action on behalf of such Underwriter or such controlling person, it
being understood, however, that the indemnifying party shall not, in connection
with any one such action or separate but substantially similar or related
actions in the same jurisdiction arising
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out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys). No
settlement of any action against an indemnified party shall be made without the
consent of the indemnified party, which shall not be unreasonably withheld in
light of all factors of importance to such indemnified party.
7. Contribution. In order to provide for just and equitable contribution
under the Act in any case in which (a) any indemnified party makes claims for
indemnification pursuant to Section 6 but it is judicially determined (by the
entry of a final judgment or decree by a court of competent jurisdiction and the
expiration of time to appeal or the denial of the last right of appeal) that
such indemnification may not be enforced in such case, notwithstanding the fact
that the express provisions of Section 6 provide for indemnification in such
case, or (b) contribution under the Act may be required on the part of any
indemnified party, then such indemnified party and each indemnifying party (if
more than one) shall contribute to the aggregate Liabilities to which it may be
subject, in either such case (after contribution from others) in such
proportions that the Underwriters are responsible in the aggregate for that
portion of such Liabilities represented by the percentage that the underwriting
discount per Share appearing on the cover page of the Prospectus bears to the
public Offering price per Share appearing thereon, and the Company shall be
responsible for the remaining portion; provided, however, that if such
allocation is not permitted by applicable law, then the relative fault of the
Company, and the Underwriters in connection with the statements or omissions
which resulted in such Liabilities and other relevant equitable considerations
shall also be considered. The relative fault shall be determined by reference
to, among other things, whether in the case of an untrue statement of a material
fact or the omission to state a material fact, such statement or omission
relates to information supplied by the Company, or the Underwriters, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if the respective
obligations of the Company and the Underwriters to contribute pursuant to this
Section 7 were to be determined by pro rata or per capita allocation of the
aggregate Liabilities (even if the Underwriters were to be treated as one entity
for such purpose) or by any other method of allocation that does not take
account of the equitable considerations referred to in the first sentence of
this Section 7. In addition, the contribution of any Underwriter shall not be
in excess of its proportionate share of the portion of such Liabilities for
which such Underwriter is responsible. No person guilty of a fraudulent
misrepresentation (within the meaning of section 11(f) of the Act) shall be
entitled to contribution from any person who is not guilty of such fraudulent
misrepresentation. As used in this Section 7, the term "Company" shall include
any officer, director or person who controls the Company within the meaning of
section 15 of the Act. The Underwriters' obligations under this Section 7 to
contribute are several in proportion to their respective underwriting
obligations and not joint. If the full amount of the contribution specified in
this Section 7 is not permitted by law, then each indemnified party and each
person who controls an indemnified party shall be entitled to contribution from
each indemnifying party to the full extent permitted by law. The foregoing
contribution agreement shall in no way affect the contribution liabilities of
any persons having liability under section 11 of the Act other than the Company
and the Underwriters. No contribution shall be requested with regard to the
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settlement of any matter from any party who did not consent to the settlement;
provided, however, that such consent shall not be unreasonably withheld in light
of all factors of importance to such party.
8. Costs and Expenses.
(a) Certain Costs and Expenses. Whether or not this Agreement
becomes effective or the sale of the Shares to the Underwriters is consummated,
the Company shall pay all costs and expenses incident to the issuance, offering,
sale and delivery of the Shares and the performance of its obligations under
this Agreement, including without limitation: (i) all fees and expenses of the
Company's legal counsel and accountants; (ii) all costs and expenses incident to
the preparation, printing, filing and distribution of the Registration Statement
(including the financial statements contained therein and all exhibits and
amendments thereto), each Preliminary Prospectus and the Prospectus, each as
amended or supplemented, this Agreement and the other agreements and documents
referred to herein, each in such quantities as you shall deem necessary;
(iii) all fees of NASD required in connection with the filing required by NASD
to be made by the Representative with respect to the Offering; (iv) all
expenses, including fees (but not in excess of the amount set forth in
Section 3(b)) and disbursements of Representative's Counsel in connection with
the qualification of the Securities under the "blue sky" laws which you shall
designate; (v) all costs and expenses of printing the respective certificates
representing the Shares; (vi) the expense of placing one or more "tombstone"
advertisements or promotional materials as directed by you (provided, however,
that the aggregate amount thereof shall not exceed $20,000); (vii) all costs and
expenses of the Company and its employees (but not of the Representative or its
employees) associated with due diligence meetings and presentations; (viii) all
costs and expenses associated with the preparation of a seven to ten minute
professional video presentation concerning the Company, its products and its
management for broker due diligence purposes; (ix) any and all taxes (including
without limitation any transfer, franchise, capital stock or other tax imposed
by any jurisdiction) on sales of the Shares to the Underwriters hereunder; and
(x) all costs and expenses incident to the furnishing of any amended Prospectus
or any supplement to be attached to the Prospectus as required by Sections 3(a)
and 3(d), except as otherwise provided by said Sections.
(b) Representative's Expense Allowance. In addition to the expenses
described in Section 8(a), the Company shall on the First Closing Date pay to
you, the balance of a non-accountable expense allowance (which shall include
fees of Representative's Counsel exclusive of the fees referred to in
Section 3(b)) of $300,000 (that being an amount equal to three percent of the
gross proceeds received upon sale of the Firm Shares), of which $________ has
been paid to you prior to the date hereof. In the event that the Over-Allotment
Option is exercised, then the Company shall on the Option Closing Date pay to
you, an additional amount equal to three percent of the gross proceeds received
upon sale of any of the Option Shares. In the event that the transactions
contemplated hereby fail to be consummated for any reason, then you shall return
to the Company that portion of the $________ heretofore paid by the Company to
the extent that it has not been utilized by you in connection with the Offering
for accountable out-of-pocket expenses; provided, however,
-25-
that if such failure is due to a breach by the Company of any covenant,
representation or warranty contained herein or because any other condition to
the Underwriters' obligations hereunder required to be fulfilled by the Company
is not fulfilled, then the Company shall be liable for your accountable
out-of-pocket expenses to the full extent thereof (with credit given to the
$________ paid).
(c) No Finders. No person is entitled either directly or indirectly
to compensation from the Company, the Underwriters or any other person for
services as a finder in connection with the Offering, and the Company hereby
indemnify and holds harmless the Underwriters, and the Underwriters hereby
indemnifies and hold harmless the Company from and against all Liabilities,
joint or several, to which the indemnified party may become subject insofar as
such Liabilities arise out of or are based upon the claim of any person (other
than an employee of the party claiming indemnity) or entity that he or it is
entitled to a finder's fee in connection with the Offering by reason of such
person's or entity's influence or prior contact with the indemnifying party.
9. Substitution of Underwriters.
(a) Substitution. If any Underwriter defaults in its obligation to
purchase the numbers of Shares which it has agreed to purchase under this
Agreement, you shall be obligated to purchase all of the Shares not purchased by
the defaulting Underwriter unless such purchase shall cause you to be in
violation of the net capital requirements of Rule 15c3-1 of the Exchange Act, in
which case you, and any other Underwriters satisfactory to you who so agree,
shall have the right, but shall not be obligated, to purchase (in such
proportions as may be agreed upon among them) all of the Shares. If you or the
other Underwriters satisfactory to you do not elect to purchase the Shares which
the defaulting Underwriter or Underwriters agreed but failed to purchase, then
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company except for: (i) the payment by the
Company of expenses as provided by Section 8(a); (ii) the payment by the Company
of accountable expenses as provided by Section 8(b); and (iii) the indemnity and
contribution agreements of the Company and the Underwriters provided by
Sections 6 and 7.
(b) Further Matters. Nothing contained herein shall relieve a
defaulting Underwriter of any liability it may have for damages caused by its
default. If the other Underwriters satisfactory to you are obligated or agree
to purchase the Shares of a defaulting Underwriter, either you or the Company
may postpone the First Closing Date for up to seven banking days in order to
effect any changes that may be necessary in the Registration Statement, any
Preliminary Prospectus or the Prospectus or in any other document or agreement,
and to file promptly any amendments to the Registration Statement, or any
amendments or supplements to any Preliminary Prospectus or the Prospectus, which
in your opinion may thereby be made necessary.
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10. Effective Date. The Agreement shall become effective upon its
execution, except that you may, at your option, delay its effectiveness until
10:00 a.m., New York time, on the first full business day following the
Effective Date, or at such earlier time after the Effective Date as you in your
discretion shall first commence the initial public Offering by the Underwriters
of any of the Shares. The time of the initial public Offering shall mean the
time of release by you of the first newspaper advertisement with respect to the
Shares, or the time when the Shares are first generally offered by you to
dealers by letter or telegram, whichever shall first occur. This Agreement may
be terminated by you at any time before it becomes effective as provided above,
except that the provisions of Sections 6, 7, 8, 13, 14, 15 and 16 shall remain
in effect notwithstanding such termination.
11. Termination.
(a) Grounds for Termination. This Agreement, except for Sections 6,
7, 8, 13, 14, 15 and 16, may be terminated at any time prior to the First
Closing Date, and the Over-Allotment Option, if exercised, may be cancelled at
any time prior to the Option Closing Date, by you if in your sole judgment it is
impracticable to offer for sale or to enforce contracts made by the Underwriters
for the resale of the Shares agreed to be purchased hereunder, by reason of:
(i) the Company having sustained a material loss, whether or not insured, by
reason of fire, earthquake, flood, accident or other calamity, or from any labor
dispute or court or government action, order or decree; (ii) trading in
securities on the New York Stock Exchange, the American Stock Exchange or the
Nasdaq Stock Market having been suspended or limited; (iii) material
governmental restrictions having been imposed on trading in securities generally
which are not in force and effect on the date hereof; (iv) a banking moratorium
having been declared by federal or New York State authorities; (v) an outbreak
or significant escalation of major international hostilities or other national
or international calamity having occurred; (vi) the passage by the Congress of
the United States or by any state legislature, of any act or measure, or the
adoption of any order, rule or regulation by any governmental body or any
authoritative accounting institute or board, or any governmental executive,
which is reasonably believed by you likely to have a material adverse effect on
the business, property, operations, condition (financial or otherwise) or
earnings of the Company; (vii) any material adverse change in the financial or
securities markets beyond normal fluctuations in the United States having
occurred since the date of this Agreement; or (viii) any material adverse change
having occurred since the respective dates for which information is given in the
Registration Statement and Prospectus, in the business, property, operations,
condition (financial or otherwise), earnings or business prospects of the
Company, whether or not arising in the ordinary course of business.
(b) Notification. If you elect to prevent this Agreement from
becoming effective or to terminate this Agreement as provided by this Section 11
or by Section 10, the Company shall be promptly notified by you, by telephone or
telegram, confirmed by letter.
12. Representative's Warrant. On the First Closing Date, the Company
shall issue and sell to you, for a total purchase price of $5.00, and upon the
terms and conditions
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set forth in the form of Representative's Warrant filed as an exhibit to the
Registration Statement, a warrant entitling you to purchase 200,000 Shares (the
"Representative's Warrant"). In the event of conflict in the terms of this
Agreement and the Representative's Warrant, the terms and conditions of the
Representative's Warrant shall control.
13. Representations, Warranties and Agreements to Survive Delivery. The
respective indemnities, agreements, representations, warranties, covenants and
other statements of the Company and the Underwriters set forth in or made
pursuant to this Agreement shall remain in full force and effect regardless of
any investigation made by or on behalf of any other party, and shall survive
delivery of and payment for the Securities and the termination of this
Agreement. The Company hereby indemnifies and holds harmless the Underwriters
from and against all Liabilities, joint or several, to which the Underwriters
may become subject insofar as such Liabilities arise out of or are based upon
the breach or failure of any representation, warranty or covenant of the Company
contained in this Agreement.
14. Notices. All communications hereunder shall be in writing and, except
as otherwise expressly provided herein, if sent to you, shall be mailed,
delivered or telegraphed and confirmed to you at ▇.▇. ▇▇▇▇▇▇ & Co., Inc., Attn:
Managing Director of Corporate Finance, ▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, with a copy sent to ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; or if sent to the Company, shall
be mailed, delivered, or telegraphed and confirmed to it at Ambassador Eyewear
Group, Inc., Attention: President, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, with a copy sent to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., ▇▇▇▇▇▇▇, Del Deo, Dolan,
Griffinger & Vechionne, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.
15. Parties in Interest. This Agreement is made solely for the benefit of
the Underwriters, the Company and, to the extent expressed, any person
controlling the Company or an Underwriter, as the case may be, and the directors
of the Company, nominees for directors of the Company (if any) named in the
Prospectus, officers of the Company who have signed the Registration Statement,
and their respective executors, administrators, successors and assigns; and no
other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include any purchaser,
as such, from an Underwriter of the Shares.
16. Applicable Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York, without reference to such
state's laws respecting the conflict of laws. The Company submits to the
jurisdiction of the federal and state courts located in Monroe County, New York
for such purposes.
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17. Counterparts. This Agreement may be executed in two or more
counterpart copies, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return this Agreement, whereupon it will become a binding
agreement between the Company and the Underwriters in accordance with its terms.
Yours very truly,
Ambassador Eyewear Group, Inc.
By:
--------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
▇.▇. ▇▇▇▇▇▇ & Co., Inc.
As Representative of the
Several Underwriters Named
in Schedule I Hereto
By:
--------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:
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Schedule I
Underwriting Agreement dated [EFFECTIVE DATE]
Number of
Firm Shares
UNDERWRITER to be Purchased
▇.▇. ▇▇▇▇▇▇ & Co., Inc.
TOTAL 2,000,000
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