Exhibit 1.2
__________* Shares
HLM DESIGN, INC.
AGREEMENT AMONG UNDERWRITERS
May ___, 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company Financial Services, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Westport Resources Investment Services, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
AS REPRESENTATIVES
Gentlemen:
We wish to confirm as follows the agreement among you, the undersigned
and the other Underwriters named in Schedule I to the Underwriting Agreement, as
it is to be executed (all such parties being herein called the "Underwriters"),
with respect to the purchase by the Underwriters severally from the HLM Design,
Inc., (the "Company") of the respective numbers of Shares (hereinafter the
"Shares") set forth in Schedule I to the Underwriting Agreement. The number of
Shares to be purchased by each Underwriter from the Company shall be determined
in accordance with Section 3 of the Underwriting Agreement. It is understood
that changes may be made in those who are to be Underwriters and in the
respective numbers of Shares to be purchased by them, but that the number of
Shares to be purchased by us as set forth in the Underwriting Agreement will not
be changed without our consent except as provided herein and in the Underwriting
Agreement. The obligations of the Underwriters to purchase the number of Shares
set opposite their respective names in Schedule I to the Underwriting Agreement,
as they may be increased by Section 3.01.01 of the Underwriting Agreement, are
herein called their "underwriting obligations." The number of Shares set
opposite our name in said Schedule I, as such number may be increased under said
Section 3.01.01, are herein called "our Shares." For purposes of this Agreement
the following definitions shall be applicable:
(a) "Manager's Concession" shall be the compensation to you
for acting as Manager as provided in paragraph 1 of not less than forty
percent (40%) of the underwriting discount. The Manager's Concession
shall include the right to all warrants to be issued pursuant to the
Underwriting Agreement and the right of first refusal set forth in
Section 11 of the Underwriting Agreement.
(b) "Underwriting Group Concession" shall mean compensation to
members of the Underwriting Group for assuming the underwriting risk
and shall be not less than fifty percent (50%) of the underwriting
discount on the Shares for which each Underwriter is obligated
hereunder.
(c) "Underwriting Fee" shall mean additional compensation to
members of the Underwriting Group for assuming the underwriting risk
and shall be not less than ten percent (10%) of the underwriting
discount on the Shares for which each Underwriter is obligated
hereunder.
(d) "Dealer's Concession" shall mean compensation to Dealers
who are members of the Selling Group and shall, as to Dealers who have
executed an agreement with you, be not less than fifty percent (50%) of
the underwriting discount.
(e) "Dealer's Reallowance Concession" shall mean the
compensation allowed Dealers by Underwriters other than the Manager and
shall be one-half of the Dealer's Concession.
(f) It is contemplated that the underwriting discount will be
ten percent (10%) of the offering price. You in your absolute
discretion shall determine, within the foregoing limitations, the
precise allocation of the underwriting discount.
1. AUTHORITY AND COMPENSATION OF REPRESENTATIVES. We hereby authorize
you as our Representatives and on our behalf, (a) to enter into an agreement
with the Company substantially in the form attached hereto as Exhibit A (the
"Underwriting Agreement"), but with such changes therein as in your judgment are
not materially adverse to the Underwriters, (b) to exercise all the authority
and discretion vested in the Underwriters and in you by the provisions of the
Underwriting Agreement, and (c) to take all such action as you in your
discretion may deem necessary or advisable in order to carry out the provisions
of the Underwriting Agreement and this Agreement and the sale and distribution
of the Shares, provided that the time within which the Registration Statement is
required to become effective pursuant to the Underwriting Agreement will not be
extended more than 48 hours without the approval of a majority in interest of
the Underwriters (including yourselves). We authorize you, in executing the
Underwriting Agreement on our behalf, to set forth in Schedule I of the
Underwriting Agreement as our commitment to purchase the number of Shares (which
shall not be substantially in excess of the number of shares included in your
invitation to participate unless we have agreed otherwise) included in a wire,
telex, or similar means of communication transmitted by you to us at least 24
hours prior to the commencement of the offering as our finalized underwriting
obligation.
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As our share of the compensation for your services hereunder, we will
pay you, and we authorize you to charge to our account, a sum equal to the
Manager's Concession.
2. PUBLIC OFFERING. A public offering of the Shares is to be made, as
herein provided, as soon after the Registration Statement relating thereto shall
become effective as in your judgment is advisable. The Shares shall be initially
offered to the public at the public offering price of $_____* per share as
determined by you and the Company. You will advise us by telegraph or telephone
when the Shares shall be released for offering and shall advise us at or prior
to that time of the allocation of the underwriting discount. We authorize you as
Representatives of the Underwriters, after the initial public offering, to vary
the public offering price, in your sole discretion, by reason of changes in
general market conditions or otherwise. The public offering price of the Shares
at the time in effect is herein called the "Offering Price."
We hereby agree to deliver all preliminary and final prospectuses
required for compliance with the provisions of Rule 15c2-8 under the Securities
Exchange Act of 1934 and Section 5(b) of the Securities Act. You have heretofore
delivered to us such preliminary prospectuses as have been requested by us,
receipt of which is hereby acknowledged, and will deliver such final
Prospectuses as will be requested by us.
3. OFFERING TO DEALERS AND GROUP SALES. We authorize you to reserve for
offering and sale, and on our behalf to sell, to institutions or other retail
purchasers (such sales being herein called "Group Sales") and to dealers
selected by you (such dealers being herein called "Dealers") all or any part of
our Shares as you may determine. Such sales of Shares, if any, shall be made (i)
in the case of Group Sales, at the Offering Price, and (ii) in the case of sales
to Dealers, at the Offering Price less the Dealer's Concession.
Any Group Sales shall be as nearly as practicable in proportion to the
underwriting obligations of the respective Underwriters. Any sales to Dealers
made for our account shall be as nearly as practicable in the ratio that the
Shares reserved for our account for offering to Dealers bears to the aggregate
of all Shares of all Underwriters including you so reserved. The over-allotment
option provided for in Section 3.01 to the extent exercised shall be exercised
by you as a Representative of the Underwriters, and shall be exercised only for
the purpose of making Group Sales or sales to Dealers by you. Such sales for our
account of the over-allotment option shall as nearly as practicable be in
proportion to the underwriting obligations of the respective Underwriters. On
any Group Sales or sales to Dealers, including those pertaining to the
over-allotment option, made by you on our behalf we shall be entitled to receive
only the Underwriter's Concession.
You agree to notify us not less than 24 hours prior to the commencement
of the public offering as to the number of Shares, if any, which we may retain
for direct sale. Prior to the termination of this Agreement, you may reserve for
offering and sale as hereinbefore provided any Shares remaining unsold
theretofore retained by us and we may, with your consent, retain any Shares
remaining unsold theretofore reserved by you.
-3-
Sales to Dealers shall be made under a Selected Dealers Agreement,
attached hereto as Exhibit B, attached hereto and by this reference incorporated
herein. We authorize you to determine the form and manner of any communications
with Dealers, and to make such changes in the Selected Dealers Agreement as you
may deem appropriate. In the event that there shall be any such agreements with
Dealers, you are authorized to act as managers thereunder and we agree, in such
event, to be governed by the terms and conditions of such agreements. Each
Underwriter agrees that it will not offer any of the Shares for sale at a price
below the Offering Price or allow any concession therefrom except as herein
otherwise provided. We as to our Shares may enter into agreements with dealers,
but any Reallowance Concession shall not exceed half of the Dealer's Concession.
It is understood that any person to whom an offer may be made as
hereinbefore provided shall be a member of the National Association of
Securities Dealers, Inc. or dealers or institutions with their principal place
of business located outside of the United States, its territories or possessions
and not registered under the Securities Exchange Act of 1934 who agree to make
no sales within the United States, its territories or possessions or to persons
who are nationals thereof or residents therein and, in making sales, to comply
with the NASD's interpretations with respect to free-riding and withholding.
We authorize you to determine the form and manner of any public
advertisement of the Shares.
Nothing in this Agreement contained shall be deemed to restrict our
right, subject to the provisions of this Section 3, to offer our Shares prior to
the effective date of the Registration Statement, provided that any such offer
shall be made in compliance with any applicable requirements of the Securities
Act of 1933 and the Securities Exchange Act of 1934 and the rules and
regulations of the Securities and Exchange Commission thereunder and of any
applicable state securities laws.
4. REPURCHASES IN THE OPEN MARKET. Any Shares sold by us (otherwise
than through you) which, prior to the termination of this Section or such
earlier date as you may determine, shall be contracted for or purchased in the
open market by you on behalf of any Underwriter or Underwriters, shall be
repurchased by us on demand at a price equal to the cost of such purchase plus
commissions and taxes on redelivery. Any Shares delivered on such repurchase
need not be the identical Shares originally sold by us. In lieu of delivery of
such Shares to us, you may (i) sell such Shares in any manner for our account
and charge us with the amount of any loss or expense or credit us with the
amount of any profit, less any expense, resulting from such sale, or (ii) charge
our account with an amount not in excess of the concession to Dealers on such
Shares.
5. DELIVERY AND PAYMENT. We agree to deliver to you at or before 9:00
a.m., Cedar Rapids Time, on the Closing Date referred to in the Underwriting
Agreement, at your office, a certified or bank cashier's check payable to the
order of [▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company Financial Services, Inc./Westport Resources
Investment Services, Inc.]* for the offering price of the Shares less Dealer's
Concession of the Shares which we retained for direct sale by us, the proceeds
of which check shall be delivered by you, in the manner provided in the
Underwriting
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Agreement, to or for the account of the Company against delivery of certificates
for such Shares to you for our account. You are authorized to accept such
delivery and to give receipts therefor. You may advance funds for Shares which
have been sold or reserved for sale to retail purchasers or Dealers for our
account. If we fail (whether or not such failure shall constitute a default
hereunder) to deliver to you, or you fail to receive, our check and/or payment
for sales made by you for our account for the Shares which we have agreed to
purchase, you, individually and not as Representatives of the Underwriters, are
authorized (but shall not be obligated) to make payment, in the manner provided
in the Underwriting Agreement, to or for the account of the Company for such
Shares for our account, but any such payment by you shall not relieve us of any
of our obligations under the Underwriting Agreement or under this Agreement and
we agree to repay you on demand the amount so advanced for our account.
We also agree on demand to take up and pay for or to deliver to you
funds sufficient to pay for at cost any Shares and other shares of common stock
of the Company purchased by you for our account pursuant to the provisions of
Section 9 hereof, and to deliver to you on demand any Shares sold or
over-allotted by you for our account pursuant to any provision of this
Agreement.
We authorize you to deliver our Shares, and any other shares purchased
by you for our account pursuant to the provisions of Section 9 hereof, against
sales made by you for our account pursuant to any provision of this Agreement.
Upon receipt by you of payment for the Shares sold by us and/or through
you for our account, you will remit to us promptly an amount equal to the
Underwriter's Concession on such Shares. You agree to cause to be delivered to
us, as soon as practicable after the Closing Date referred to in the
Underwriting Agreement, such part of our Shares purchased on such Closing Date
as shall not have been sold or reserved for sale by you for our account.
In case any Shares reserved for sale in Group Sales or to Dealers shall
not be purchased and paid for in due course as contemplated hereby, we agree to
accept delivery when tendered by you of any Shares so reserved for our account
and not so purchased and pay you the offering price less the Dealer's and
Underwriter's Concessions.
6. AUTHORITY TO BORROW. We authorize you to advance your funds for our
account (charging current interest rates) and to arrange loans for our account
for the purpose of carrying out this Agreement, and in connection therewith to
execute and deliver any notes or other instruments and to hold or pledge as
security therefor all or any part of our Shares or any other shares of common
stock of the Company purchased hereunder for our account. Any lending bank is
hereby authorized to accept your instructions as Representatives in all matters
relating to such loans. Any part of our Shares or of such other common stock
held by you may be delivered to us for carrying purposes and, if so delivered,
will be redelivered to you upon demand.
7. ALLOCATION OF EXPENSE AND LIABILITY. We authorize you to charge our
account with and we agree to pay (a) all transfer taxes on sales made by you for
our account, except
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as herein otherwise provided, and (b) our proportionate share (based on our
underwriting obligations) of all expenses in excess of those reimbursed by the
Company incurred by you in connection with the purchase, carrying and
distribution, or proposed purchase and distribution, of the Shares and all other
expenses arising under the terms of the Underwriting Agreement or this
Agreement. Your determination of all such expenses and your allocation thereof
shall be final and conclusive. Funds for our account at any time in your hands
as our Representative may be held in your general funds without accountability
for interest. As soon as practicable after the termination of this Agreement,
the net credit or debit balance in our account, after proper charge and credit
for all interim payments and receipts, shall be paid to or paid by us, provided
that you in your discretion may reserve from distribution an amount to cover
possible additional expenses chargeable to the several Underwriters.
8. LIABILITY FOR FUTURE CLAIMS. Neither any statement by you, as
Representative of the Underwriters, of any credit or debit balance in our
account nor any reservation from distribution to cover possible additional
expenses relating to the Shares shall constitute any representation by you as to
the existence or non-existence of possible unforeseen expenses or liabilities of
or charges against the several Underwriters. Notwithstanding the distribution of
any net credit balance to us or the termination of this Agreement or both, we
shall be and remain liable for, and will pay on demand, (a) our proportionate
share (based on our underwriting obligations) of all expenses and liabilities
which may be incurred by or for the accounts of the Underwriters, including any
liability which may be incurred by the Underwriters or any of them based on the
claim that the Underwriters constitute an association, unincorporated business,
partnership or any separate entity, and (b) any transfer taxes paid after such
settlement on account of any sale or transfer for our account.
9. STABILIZATION. We authorize you, until the termination of this
Agreement, (a) to make purchases and sales of the shares of common stock of the
Company, in the open market or otherwise, for long or short account, and on such
terms and at such prices as you in your discretion may deem desirable, (b) in
arranging for sales of Shares, to over-allot, and (c) either before or after the
termination of this Agreement, to cover any short position incurred pursuant to
this Section 9; subject, however, to the applicable rules and regulations of the
Securities and Exchange Commission under the Securities Exchange Act of 1934.
All such purchases, sales and over-allotments shall be made for the accounts of
the several Underwriters as nearly as practicable in proportion to their
respective underwriting obligations; provided that our net position resulting
from such purchases and sales and over-allotments shall not at any time exceed,
either for long or short account, 15% of the number of Shares agreed to be
purchased by us.
If you engage in any stabilizing transactions as Representative of the
Underwriters, you shall notify us of that fact. Each of us agrees to file with
you, within five business days following the date of termination of such
transactions, triplicate originals of a report "not as manager" on Form X-17A-1
in accordance with the requirements of Rule 17a-2(e) under the Securities
Exchange Act of 1934. You shall, as such Representative, file such reports with,
and make the requisite reports on such transactions as required by, the
Securities and Exchange Commission in accordance with Rule 17a-2 under the
Securities Exchange Act of 1934.
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We agree to advise you, from time to time upon request until the
settlement of accounts hereunder, of the number of Shares at the time retained
by us unsold, and we will upon request sell to you for the accounts of one or
more of the several Underwriters such number of our unsold Shares as you may
designate, at the Offering Price less such amount, not in excess of the
concession to Dealers, as you may determine.
10. OPEN MARKET TRANSACTIONS. We agree that except with your consent
and except as herein provided upon advice from you we will not make purchases or
sales on the open market or otherwise or attempt to induce others to make
purchases or sales, either before or after the purchase of the Shares, of any
shares of common stock of the Company, and prior to the completion (as defined
in Rule 10b-6 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934) of our participation in the distribution, we will
otherwise comply with Rule 10b-6. Nothing in this Section 10 contained shall
prohibit us from acting as broker or agent in the execution of unsolicited
orders of customers for the purchase or sale of any securities of the Company.
11. BLUE SKY. Prior to the initial offering by the Underwriters, you
will inform us as to the states under the respective securities or Blue Sky laws
of which it is believed that the Shares have been qualified or are exempt for
sale, but you do not assume any responsibility or obligation as to the accuracy
of such information or as to the right of any Underwriter or Dealer to sell the
Shares in any jurisdiction. We authorize you, if you deem it unadvisable in
arranging sales of Shares for our account hereunder to sell any of our Shares to
any particular Dealer or other buyer because of the securities or Blue Sky laws
of any jurisdiction, to sell our Shares to one or more other Underwriters at the
Offering Price less, in the case of a sale to a Dealer, such amount, not in
excess of the concession to Dealers thereon, as you may determine. The transfer
tax on any such sales among Underwriters shall be treated as an expense and
charged to the respective accounts of the several Underwriters in proportion to
their respective underwriting obligations.
12. DEFAULT BY UNDERWRITERS. Default by one or more Underwriters in
respect of their obligations under the Underwriting Agreement shall not release
us from any of our obligations. In case of such default by one or more
Underwriters, you are authorized to increase, pro rata with the other
nondefaulting Underwriters, the number of Shares which we shall be obligated to
purchase from the Company, provided that the aggregate amount of all such
increases for all non-defaulting Underwriters shall not exceed 10% of the
Shares, and, if the aggregate number of the Shares not taken up by such
defaulting Underwriters exceeds such 10%, you are further authorized, but shall
not be obligated, to arrange for the purchase by other persons, who may include
yourselves, of all or a portion of the Shares not taken up by such Underwriters.
In the event any such increases or arrangements are made, the respective numbers
of Shares to be purchased by the non-defaulting Underwriters and by any such
other person or persons shall be taken as the basis for the underwriting
obligations under this Agreement, but this shall not in any way affect the
liability of any defaulting Underwriters to the other Underwriters for damages
resulting from such default.
In the event of default by one or more Underwriters in respect of their
obligations under this Agreement to take up and pay for any shares of common
stock purchased by you for their
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respective accounts pursuant to Section 9 hereof, or to deliver any such shares
of common stock sold or over-allotted by you for their respective accounts
pursuant to any provisions of this Agreement, and to the extent that
arrangements shall not have been made by you for other persons to assume the
obligations of such defaulting Underwriter or Underwriters, each non-defaulting
Underwriter shall assume its proportionate share of the aforesaid obligations of
each such defaulting Underwriter without relieving any such defaulting
Underwriter of its liability therefor.
13. TERMINATION OF AGREEMENT. Unless earlier terminated by you, the
provisions of Sections 2, 3, 4, 6, 9 and 10 of this Agreement shall, except as
otherwise provided therein, terminate thirty full business days after the
effective date of the Registration Statement herein referred to, but may be
extended by you for an additional period or periods not exceeding thirty full
business days in the aggregate. You may, however, terminate this Agreement or
any provisions hereof at any time by written or telegraphic notice to us.
14. GENERAL POSITION OF THE REPRESENTATIVE. In taking action under this
Agreement, you shall act only as agent of the several Underwriters. Your
authority as Representative of the several Underwriters shall include the taking
of such action as you may deem advisable in respect of all matters pertaining to
any and all offers and sales of the Shares, including the right to make any
modifications which you consider necessary or desirable in the arrangements with
Dealers or others. You shall be under no liability for or in respect of the
value of the Shares or the validity or the form thereof, the Registration
Statement, the Prospectus, the Underwriting Agreement or other instruments
executed by the Company or others; or for or in respect of the issuance,
transfer or delivery of any of the Shares; or for the performance by the Company
or others of any agreement on its or their part; nor shall you as such
Representative or otherwise be liable under any of the provisions hereof or for
any matters connected herewith, except for want of good faith, and except for
any liability arising under the Securities Act of 1933; and no obligation not
expressly assumed by you as such Representative herein shall be implied from
this Agreement. In representing the Underwriters hereunder, you shall act as the
Representative of each of them respectively. Nothing herein contained shall
constitute the several Underwriters partners with you or with each other, or
render any Underwriter liable for the commitments of any other Underwriter,
except as otherwise provided in Section 12 hereof. The commitments and
liabilities of each of the several Underwriters are several in accordance with
their respective underwriting obligations and are not joint.
15. ACKNOWLEDGMENT OF REGISTRATION STATEMENT, ETC. We hereby confirm
that we have examined the Registration Statement (including all amendments
thereto) relating to the Shares as heretofore filed with the Securities and
Exchange Commission, that we are familiar with the amendment to the Registration
Statement and the final form of Prospectus proposed to be filed, that we are
willing to accept the responsibilities of an underwriter thereunder, and that we
are willing to proceed as therein contemplated. We further confirm that the
statements made under the heading "Underwriting" in such proposed final form of
Prospectus are correct and we authorize you so to advise the Company on our
behalf. We understand that the aforementioned documents are subject to further
change and that we will be supplied with copies of any amendment or amendments
to the Registration Statement and of any
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amended Prospectus promptly, if and when received by you, but the making of such
changes and amendments shall not release us or affect our obligations hereunder
or under the Underwriting Agreement.
16. INDEMNIFICATION. Each Underwriter, including you, agrees to
indemnify and hold harmless each other Underwriter and each person who controls
any other Underwriter within the meaning of Section 15 of the Securities Act of
1933, as amended, to the extent of their several commitment under the
Underwriting Agreement and upon the terms that such Underwriter agrees to
indemnify and hold harmless the Company as set forth in Section 6.02 of the
Underwriting Agreement. The agreement contained in this Section 16 shall survive
any termination of this Agreement Among Underwriters.
17. CAPITAL REQUIREMENTS. We confirm that our ratio of aggregate
indebtedness to net capital is such that we may, in accordance with and pursuant
to Rule 15c3-1, promulgated by the Securities and Exchange Commission under the
Securities Exchange Act of 1934, agree to purchase the number of Shares we may
be obligated to purchase under any provision of the Underwriting Agreement or
this Agreement.
18. MISCELLANEOUS. We have transmitted herewith a completed
Underwriters' Questionnaire on the form thereof supplied by you. Any notice
hereunder from you to us or from us to you shall be deemed to have been duly
given if sent by registered mail, telegram, teletype, telex, telecopier, graphic
scan, or other written form of telecommunication to us at our address as set
forth in the Underwriting Agreement, or to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company Financial
Services, Inc. at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇., ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, and to
Westport Resources Investment Services, Inc. at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
We understand that you are each members in good standing of the NASD.
We hereby confirm that we are a member in good standing of the NASD who agrees
to comply with all applicable rules of the NASD, including without limitation,
the NASD's Interpretation with Respect to Free-Riding and Withholding and
Section 24 of Article III of the NASD's Rules of Fair Practice or, if we are not
such a member, we are a foreign dealer not eligible for membership in the NASD
(a) who hereby agree to make no sales within the United States, its territories
or its possessions (except that we may participate in Group Sales under Section
3 above) or to persons who are citizens thereof or residents therein, and, in
making sales to comply with the above-mentioned interpretations in Sections 8,
24 and 36 of the above-mentioned Article III, as if we were an NASD member and
Section 25 of such Article III as it applies to a non-member broker or dealer in
a foreign country, and (b) who in connection with sales and offers to sell Stock
made by us outside the United States, (i) we either furnish to each person to
whom any such sale or offer is made a copy of the then current Preliminary
Prospectus or the Prospectus (as then amended or supplemented if the Company
shall have furnished amendments or supplements thereto), as the case maybe, or
inform such person that such Preliminary Prospectus or Prospectus will be
available upon request, and (ii) will furnish to each person to whom any such
sale or offer is made such prospectus, advertisement or other offering document
containing information relating to the Stock or the Company as may be required
under the law of the jurisdiction in which such sale or offer is made. Any
prospectus, advertisement or other offering document furnished by us
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to any person in accordance with clause (b)(ii) of the preceding sentence and
any such additional material as we may furnish to any person (i) shall comply in
all respects with the law of the jurisdiction in which it is so furnished; (ii)
shall be prepared and so furnished at our sole risk and expense; and (iii) shall
not contain information relating to the Stock or the Company which is
inconsistent in any respect with the information contained in the then current
Preliminary Prospectus or in the Prospectus (as then amended or supplemented if
the Company shall have furnished any amendments or supplements thereto), as the
case may be.
This instrument may be signed by the Underwriters in various
counterparts which together shall constitute one and the same agreement among
all the Underwriters and shall become effective upon execution. In no event,
however, shall we have any liability under this Agreement if the Underwriting
Agreement is not executed.
Please confirm that the foregoing correctly states the understanding
between us by signing and returning to us a counterpart hereof.
Very truly yours,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & COMPANY FINANCIAL
SERVICES, INC., as Attorney-in-Fact
for the several Underwriters named
in Schedule I to the Underwriting
Agreement
By: __________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Confirmed as of the date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & COMPANY FINANCIAL
SERVICES, INC., as Representative
By: __________________________________
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
WESTPORT RESOURCES INVESTMENT
SERVICES, INC., as Representative
By: __________________________________
-▇▇-
▇▇▇▇ ▇▇▇▇, ▇▇▇▇ President
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that the undersigned hereby irrevocably
constitutes and appoints ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & COMPANY FINANCIAL SERVICES, INC. and
WESTPORT RESOURCES INVESTMENT SERVICES, INC., and each or either of them, the
true and lawful agents and attorneys-in-fact of the undersigned with the power
and authority to execute and deliver an Agreement Among Underwriters (which
Agreement Among Underwriters grants to the Representatives of the Underwriters
as named therein the authority to execute the Underwriting Agreement) and to
otherwise act as agents and attorneys-in-fact of the undersigned with respect to
all matters arising in connection with the undersigned's acting as one of the
Underwriters of a proposed offering of:
_____________* SHARES (APPROX.)
THE HLM DESIGN, INC.
COMMON SHARES
(par value $.01 per share)
with full power and authority to execute and deliver for and on behalf of the
undersigned all agreements, consents and documents in connection therewith as
said agents and attorneys-in-fact, or any of them, may deem advisable. The
undersigned hereby gives to said agents and attorneys-in-fact the power and
authority to appoint a substitute or substitutes to act hereunder with the same
power and authority as said agents and attorneys-in-fact, or any of them, would
have if personally acting. The undersigned hereby ratifies and confirms all that
said agents and attorneys-in-fact, or any of them, or any substitute or
substitutes, may do by virtue hereof.
Duly executed at ____________________________ this _____ day of
_____________, 1998.
_____________________________________
(Firm Name)
By___________________________________
Title:_______________________________
-▇▇-
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇ OF _________________ )
) ss:
COUNTY OF _________________ )
On this _____ day of __________, 199____, before me, the
undersigned, a Notary Public in and for the State of Iowa, personally appeared
_______________________________ to me known to be the identical person named in
and who executed the foregoing instrument, and acknowledged that such person, as
the ____________________________________ of __________________________, executed
the same as the voluntary act and deed of such corporation.
________________________________
Notary Public
PARTNERSHIP ACKNOWLEDGMENT
STATE OF _________________ )
) ss:
COUNTY OF _________________ )
On this _____ day of __________, 199____, before me, the
undersigned, a Notary Public in and for the State of Iowa, personally appeared
_______________________________ to me known to be the identical person named in
and who executed the foregoing instrument, and acknowledged that such person, as
the ____________________________________ of __________________________, executed
the same as the voluntary act and deed of such partnership.
________________________________
Notary Public
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SIGNING PROCEDURE:
As a convenience to the Underwriters, we have instituted the following
procedures:
1. All prospective Underwriters are requested to execute this Power of
Attorney authorizing ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & COMPANY FINANCIAL SERVICES, INC. and
WESTPORT RESOURCES INVESTMENT SERVICES, INC., and each or either of them, to
sign the Agreement Among Underwriters on their behalf. Prospective underwriters
are encouraged to read the Agreement Among Underwriters and related agreements
carefully before returning the Power of Attorney to us as it authorizes the
execution of the Agreement Among Underwriters and the Underwriting Agreement on
your behalf.
2. Prior to the anticipated signing of the Underwriting Agreement and
public offering, we will notify you by telegram, teletype, telex, telecopier,
graphic scan or other written form of telecommunication of your finalized
underwriting obligation and the number of shares to be retained by you for sale.
3. Unless ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & COMPANY FINANCIAL SERVICES, INC. receives
written notice from you by telegram, teletype, telex, telecopier, graphic scan
or other written form of telecommunication from you (whether or not you received
the notice referred to in Item 2) revoking this Power of Attorney prior to the
time specified in our notice referred to in Item 2, the Agreement Among
Underwriters will be signed on your behalf pursuant to this Power of Attorney.
4. We will in due course send you an executed copy (which may have
facsimile or conformed signatures) of the Agreement Among Underwriters.
HLM DESIGN, INC.
UNDERWRITERS' QUESTIONNAIRE
INSTRUCTIONS: Execute four copies and promptly forward three to
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company Financial Services, Inc.
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
The following information is supplied in connection with the proposed
offering of ___________* Common Shares, par value $.01 per share (hereinafter,
together with up to _____* additional shares subject to an option to cover
over-allotments, called the "Stock"), of HLM Design, Inc. (hereinafter called
the "Company"). The undersigned, a prospective Underwriter, authorizes you to
deliver a copy of this questionnaire or information included herein to the
Company for use by the Company in the Registration Statement, any Preliminary
Prospectus and the Prospectus relating to the Stock.
1. Our name, exactly as it should appear in the Prospectus, and our
address are as follows:
2. (Check one) We are a corporation ( ); partnership ( ); sole
proprietorship ( ).
3. Except as indicated below (a) neither we nor any of our directors,
officers or partners have a "material" (as defined in the Rules and Regulations
under the Securities Act of 1933) relationship with the Company or any of its
officers or directors; (b) during the last three years, neither we nor any of
our officers, directors or partners have been an officer or director of the
Company or an "associate" (as defined in such Rules and Regulations) of any of
the officers or directors of the Company or of any person who, to our knowledge,
now owns of record or beneficially more than 10% of any class of voting
securities of the Company; (c) neither we nor any of our directors, officers or
partners, separately or as a group, now owns of record or beneficially more than
1% of any class of voting securities of the Company; (d) other than as may be
stated in the Agreement Among Underwriters, the Underwriting Agreement, the
Selected Dealer Agreement or in the Registration Statement, we do not know of
any arrangements to limit or restrict the sale of the Stock for the period of
distribution, to stabilize the market for the Stock, for withholding
commissions, or otherwise to hold each prospective Underwriter or dealer
responsible for the distribution of his participation in the Stock, or for any
discounts or commissions to be allowed or paid to dealers; (e) other than as set
forth in the Preliminary Prospectus we have no knowledge that more than 5% of
any class of voting securities of the Company is or is to be held subject to any
voting trust or any similar agreement; (f) our proposed commitment to purchase
the Stock will not result in a violation of the financial responsibility
requirements of Rule 15c3-1 under
the Securities Exchange Act of 1934; (g) none of us, any of our directors,
officers, partners or "persons associated with" us (as defined in the Bylaws of
the National Association of Securities Dealers, Inc. ("NASD"), or, to our
knowledge, any "related person" (defined by the NASD to include counsel,
financial consultants and advisors, finders, members of the selling or
distribution groups and any other persons associated with or related to any of
the foregoing), or any other broker-dealer (i) within the last 18 months has
purchased in private transactions, or intend before, at or within six months
after the commencement of the public offering to purchase in private
transactions, any securities of the Company or any parent or subsidiary thereof
or (ii) within the last 12 months had any dealings with the Company, or any
parent, subsidiary or controlling stockholder thereof (other than relating to
the proposed Purchase Agreement, Agreement Among Underwriters and Selected
Dealer Agreement), as to which documents or information are required to be filed
with the NASD pursuant to its Statement of Policy Concerning Venture Capital and
Other Investments or its Interpretation with Respect to Review of Corporate
Financing, dated March 10, 1970, as amended; (h) we do not intend to confirm
sales of Shares to any accounts over which we exercise discretionary authority.
(State exceptions, if any, or state "No Exceptions.")
4. Set forth below or attached separately is a list of the states under
the laws of which we are registered as a dealer in securities:
5. Except as indicated below, we have not within the past 12 months
prepared or had prepared for us any investment research reports or memoranda
relating to the Company, engineering, management or similar report or memorandum
relating to broad aspects of the business, operations or products of the
Company, and no report or memorandum has been prepared for external use by us in
connection with the proposed offering.
(State "No Exceptions" or list and enclose three copies
of each report or memorandum and describe distribution.)
The undersigned understands that a court has held that it would be
against the public policy manifested by the federal securities laws to permit an
underwriter which has been found to have actual knowledge of false or misleading
statements or omissions contained in a
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prospectus or an offering circular, to enforce against the issuer of the
indemnity provisions customarily contained in an underwriting agreement. In this
connection, the undersigned represents that it has no actual knowledge of false
and misleading statements in or omissions from the Registration Statement and
that, in accordance with the next paragraph, it will advise you if it becomes
aware of any such statements or omissions.
The foregoing information is correctly stated to the best of our
knowledge, information and belief. We will notify you immediately in the event
of any development before the effective date of the Registration Statement which
makes untrue or incomplete any of the above statements as of such effective
date. You are to consider that there has not been any such development unless
advised to the contrary. We further agree to furnish any such additional
information as you or the Company may reasonably request.
In the event that the Securities and Exchange Commission makes a
cursory or a summary review of the Registration Statement pursuant to Securities
Act Release No. 5231, we authorize you to furnish to the Commission on our
behalf the letter required by the Release acknowledging our awareness that such
cursory or summary review has been made and of our statutory responsibilities
under the Securities Act of 1933.
We agree to deliver all Preliminary Prospectuses and final Prospectuses
required for compliance with the provisions of Rule 15c2-8 under the Securities
Exchange Act of 1934.
We will keep an accurate record of the names and addresses of all
persons to whom we give copies of any Preliminary Prospectus, and, when
furnished with copies of any amended Preliminary Prospectus, we will, upon your
request, promptly forward copies thereof to each such person and keep a record
of such forwarding. We will keep an accurate record of indications of interest
and/or offers to buy received and will deliver a copy of the final form of
Prospectus to each person who purchases any of the Stock.
Very truly yours,
For Corporate Signature
_____________________________________________
(Name of Corporation)
By __________________________________________
(Signature and Title of Authorized Officer)
For Partnership Signature
_____________________________________________
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_____________________________________________
(Partnership Name)
By __________________________________________
(Partner)
For Sole Proprietorship Signature
_____________________________________________
Dated this ______ day of ____________, 1998.
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Date:________________________________
RE: Offering of HLM Design, Inc. Common Stock
Your underwriting obligation has been finalized at _________________________
shares.
Your initial retention will be ___________________ shares.
Offering expected ______________________, 1998.
We will execute the Agreement Among Underwriters and Underwriting Agreement on
your behalf pursuant to your Power of Attorney unless we have received notice
revoking same from you by telegram, teletype, telex, telecopier, graphic scan or
similar means of written communication prior to 9:00 a.m. Central Standard Time,
December _____________________*, 1998.
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