ORLANDO PREDATORS ENTERTAINMENT, INC.
450,000 UNITS
AGREEMENT AMONG UNDERWRITERS
To each of the Underwriters named July __, 1997
in Schedule I to the attached
Underwriting Agreement
Dear Sirs:
1. UNDERWRITING AGREEMENT. Orlando Predators Entertainment, Inc., a
Florida corporation (the "Company") proposes to enter into an underwriting
agreement in the form of the Underwriting Agreement attached hereto (the
"Underwriting Agreement") with the underwriters named in Schedule I to the
Underwriting Agreement (the "Underwriters") for whom we are acting as
representative (the "Representative"), acting severally and not jointly, with
respect to the purchase from the Company of an aggregate of 450,000 units
(the "Firm Units"), each unit ("Unit") consisting of two (2) shares of the
Company's no par value Common Stock (the "Common Stock"), and one redeemable
Common Stock Warrant entitling the holder thereof to purchase for $7.50, one
share of Common Stock for a term of two years from the effective date of the
Registration Statement described below in Section 2. In addition, the
Company proposes to sell to the Underwriters up to an additional 67,500 Units
(the "Optional Units") for the purpose of covering over-allotments.
Under the terms of the Underwriting Agreement, each of the Underwriters
will agree, in accordance with the terms thereof, to purchase on a firm
commitment basis the number of Units set forth opposite its name in said
Schedule I, subject to adjustment pursuant to Section 12 hereof.
2. REGISTRATION STATEMENT AND PROSPECTUS. The Units are described in a
registration statement on Form SB-2 (File No. 333-____) and related
prospectus which have been filed by the Company with the Securities and
Exchange Commission (the "Commission") under the Securities Act of 1933, as
amended (the "Act") and the rules and regulations of the Commission
thereunder. A copy of Amendment No. 1 to the registration statement has been
delivered to you. An additional amendment to such registration statement has
been or will be filed in which you have been or will be named as one of the
Underwriters of the Units, and you hereby authorize us to approve on your
behalf any further amendments or supplements which may be necessary or
appropriate. The registration statement, as amended at the time it becomes
effective, is called the "Registration Statement" and the final prospectus as
filed by the Company with the Commission pursuant to Rule 424(b) under the
Act, is referred to as the "Prospectus."
3. AUTHORITY OF REPRESENTATIVE. You authorize us as your Representative
to execute the Underwriting Agreement with the Company in the form attached
with such insertions, deletions or other changes as we may approve (but not
as to price and number of the Units to be purchased by you except as provided
herein and therein) and to take such actions as in our discretion we may deem
advisable in respect of all matters pertaining to the Underwriting Agreement,
this Agreement, and the transactions for the accounts of the several
Underwriters
contemplated thereby and hereby, determining whether and to what extent to
purchase the Optional Units on behalf of the Underwriters, and the purchase,
carrying, sale and distribution of the Units.
4. PUBLIC OFFERING. In connection with any public offering of the
Units, you authorize us, in our discretion:
(a) To determine the time and manner of the initial public offering
(after the Registration Statement becomes effective), the initial public
offering price, and the concessions and reallowances to dealers, to change
the public offering price and such concessions and reallowances after the
initial public offering, to furnish the Company with the information to be
included in the Registration Statement and the Prospectus and any amendment
or supplement thereto with respect to the terms of the offering, and to
determine all matters relating to the public advertisement of the Units and
any communications with dealers or others;
(b) To reserve all or any part of your Units for sale to retail
purchasers and to dealers selected by us ("Selected Dealers") among whom may
be included any Underwriter (including ourselves) and each of whom shall be a
member of the National Association of Securities Dealers, Inc., such
reservations for sales to retail purchasers to be as nearly as practicable in
proportion to the respective underwriting obligations of the Underwriters and
such reservations for sales to Selected Dealers to be in such proportion as
we determine, and from time to time to add to the reserved Units such
aggregate number of Units retained by you remaining unsold and to release to
you any of your Units reserved but not sold;
(c) To sell reserved Units, as nearly as practicable in proportion
to the respective reservations, to retail purchasers at the public offering
price and to Selected Dealers at the public offering price less a concession
(the "Selected Dealer's Concession") pursuant to the Selling Agreement in
substantially the form attached; and
(d) To buy Units for your account from Selected Dealers at the
public offering price less such amount not in excess of the Selected Dealer's
Concession as we may determine.
After advice from us that the Units are released for public offering, you
will offer to the public in conformity with the terms of the offering set
forth in the Prospectus, or in any amendment or supplement thereto, such of
your Units as we advise you are not reserved.
You recognize the importance of a broad distribution of the Units among
bona fide investors and you agree to use your best efforts to obtain such
broad distribution, and to that end, to the extent you deem practicable, to
give priority to small orders. In offering the Units to Selected Dealers we
will take such action as we deem appropriate to effect a broad distribution.
5. REPURCHASE OF UNITS NOT EFFECTIVELY PLACED FOR INVESTMENT. You are
requested to place for investment those of your Units which are not reserved
as aforesaid. Any Units sold by you (otherwise than through us) which may be
delivered to us against a purchase contract made by us for the account of any
Underwriter prior to the termination of the provisions referred
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to in Section 11 of this Agreement, shall be repurchased by you on demand at
the cost of such purchase plus brokerage commissions and transfer taxes on
redelivery. Units delivered on such repurchase need not be the identical
Units purchased by you. In lieu of demanding repurchase by you we may in our
discretion (a) sell for your account the Units so purchased by us, at such
price and upon such terms as we may determine, and debit or credit your
account with the loss and expense or net profit resulting from such sale, or
((b) charge your account with an amount not in excess of the Selected
Dealer's Concession with respect to such Units plus brokerage commissions and
transfer taxes paid in connection with such purchase.
6. PAYMENT AND DELIVERY. You agree to deliver to us at or before 8:00
a.m., local Milwaukee time, on the Initial Closing Date referred to in the
Underwriting Agreement, a certified check or bank cashier's check payable in
Clearing House funds to the order of First Midwest Securities, Inc., as
Representative, for the full purchase price of the Units which you shall have
agreed to purchase from the Company. The proceeds shall be delivered in the
amounts required in each case for payment of the full purchase price by us to
the Company against delivery of the Units to us for your account. You
authorize us to accept that delivery and to give a receipt therefore. We may
in our discretion make such payment on your behalf with our own funds, in
which event you will reimburse us promptly upon request. You authorize us,
as your custodian, to take delivery of your Units registered as we may
direct, in order to facilitate deliveries. You also authorize us to hold for
your account such of your Units as we have reserved for sale to retail
purchasers and to Selected Dealers and to deliver your reserved Units against
such sales. We will deliver your unreserved Units to you promptly and, after
we receive payment for reserved Units sold by us for your account, we will
remit to you an amount equal to the price paid by you for such Units. As
soon as practicable after termination of Sections 4, 5 and 9 and the first
sentence of Section 8 of this Agreement (pursuant to Section 11 hereof) we
will deliver to you any of your Units reserved but not sold. All Units
delivered to you pursuant to this Section will be evidenced by certificates
in such denominations as you shall direct by written notice received by us
not later than the third full business day preceding the Initial Closing Date.
7. AUTHORITY TO BORROW. In connection with the purchase or carrying of
any Units purchased hereunder for your account, you authorize us, in our
discretion, to advance funds for your account, charging current interest
rates, or to arrange loans for your account, and in connection therewith to
execute and deliver any notes or other instruments and hold or pledge as
security any of your Units. Any lender may rely on our instructions in all
matters relating to any such loans. Any of your Units held by us for your
account may be delivered to you for carrying purposes only, and subject to
our further direction.
8. STABILIZATION AND OVER-ALLOTMENT. To facilitate the distribution of
the Units, you authorize us during the term of this Agreement, or for such
longer period as may be necessary, in our discretion, and without obligating
us to do so, to make purchases and sales of the Units for your account in the
open market or otherwise, for long or short account, on such terms and at
such prices as we deem advisable and, in arranging sales, to over-allot. You
also authorize us to cover any short position incurred pursuant to this
Section by purchase of any or all of the Optional Units from the Company
pursuant to the option contained in the Underwriting Agreement or otherwise
on such terms as we deem advisable. All such purchases and sales and
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over-allotments shall be made for the accounts of the several Underwriters as
nearly as practicable in proportion to their respective underwriting
obligations. You will on our demand take up at cost or deliver against
payment any Units so purchased or sold or over-allotted for your account.
You will be obligated in respect of purchases and sales made for your account
hereunder whether or not the proposed purchase of the Units is consummated.
Your net commitment shall not, at the end of any business day, exceed 15% of
your maximum underwriting obligation. Notwithstanding the foregoing
limitations, in the event of default by one or more Underwriters in respect
of their obligations under this Section, you will assume your proportionate
Unit of such obligation without relieving the defaulting Underwriter from
liability.
In the event that we effect any stabilizing purchases pursuant to this
Section, we will notify each Underwriter promptly of the date and time when
the first stabilizing purchase is effected and the date and time when
stabilizing is terminated. Each Underwriter agrees that if it effects any
stabilizing purchases, it will, not later than three business days following
the day on which any such stabilization purchase is effected, notify us of
the price, date and time at which such stabilizing purchase was effected and
will promptly notify us of the date and time when stabilizing was terminated
by such Underwriter. Each Underwriter authorizes us to file with the
Commission all notices and reports which may be required as a result of any
transactions made pursuant to this Section.
Upon request you will advise us of Units retained by you or purchased by
you from other Underwriters and Selected Dealers and remaining unsold and
will sell to us for the account of one or more of the Underwriters such of
your unsold Units as we may designate, at the public offering price thereof
less such amount as we may determine, but not in excess of the Selected
Dealer's Concession with respect thereto.
If, pursuant to the provisions of the first paragraph of this Section and
prior to the termination of this Agreement (or such earlier date as we may
have determined on notice to the Underwriters), we purchase or contract to
purchase any Units which were retained by or released to you for direct sale,
which Units were theretofore not effectively placed for investment by you,
you authorize us in our discretion either to charge you account with an
amount equal to the Selected Dealer's Concession with respect thereto or to
require you to repurchase such Units at a price equal to the total cost of
such purchase, including commissions, if any, and transfer tax on the
redelivery. Units delivered on such repurchase need not be the identical
Units originally purchased by and delivered to you.
Upon the termination of this Agreement, we are authorized in our
discretion, in lieu of delivering to the several Underwriters any Units then
held for their respective accounts pursuant to this Section, to sell such
Units for the accounts of each of the Underwriters at such price or prices as
we may determine and debit or credit your account for the loss or profit
resulting from such sale.
9. OPEN MARKET TRANSACTION. We and you agree not to bid for, purchase,
attempt to induce others to purchase or sell, directly or indirectly, any
Units except as brokers pursuant to unsolicited orders and as otherwise
provided in this Agreement or in the Underwriting
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Agreement. You further agree not to offer the Units for sale until notified
by us, as Representative, that they are released for that purpose.
10. EXPENSES AND SETTLEMENT. We may charge your account with Selected
Dealer's Concessions and all transfer taxes on sales made by us for your
account and with your proportionate share (based upon your underwriting
obligation) of all other expenses incurred by us under the terms of this
Agreement or the Underwriting Agreement or in connection with the purchase,
carrying, sale or distribution of the Units. Our determination of the amount
and allocation of the expenses shall be conclusive. As soon as practicable
after termination of the provisions referred to in Section 11, the accounts
hereunder will be settled, but we may reserve from distribution such amount
as we deem advisable to cover possible additional expenses. We may at any
time make partial distribution of credit balances or call for payment of
debit balances. Any of your funds in our hands may be held with our general
funds without accountability for interest. Notwithstanding any settlement,
you will pay (a) your proportionate share (based upon your underwriting
obligation) of any liability which may be incurred by the Underwriters, or
any of them, based on the claim that the Underwriters constitute an
association, partnership, unincorporated business or other separate entity,
and of any expenses incurred by us, or by any other Underwriter with our
approval, in contesting any such liability, and (b) any transfer taxes which
may be assessed and paid after such settlement on account of any sale or
transfer for your account.
11. TERMINATION. The provisions of Sections 4, 5 and 9 and the first
sentence of Section 8 of this Agreement shall terminate 30 days after the
date of this Agreement unless extended by us. We may extend said provisions
for periods not exceeding an additional 30 days in the aggregate, provided
that the Selected Dealers Agreements, if any, are similarly extended.
Whether extended or not, said provisions may be terminated in part or in
whole by notice from us to the effect that the provisions referred to in this
Section 11 have been so terminated.
12. DEFAULT BY UNDERWRITERS. Default by one or more Underwriters
hereunder or under the Underwriting Agreement shall not release the other
Underwriters from their obligations or affect the liability of any defaulting
Underwriter to the other Underwriters for damages resulting from such
default. In case of default under the Underwriting Agreement by one or more
Underwriters, we may arrange for the purchase by others, including
non-defaulting Underwriters, of Units not taken up by such defaulting
Underwriters, and you will, at our request, increase pro rata with the other
non-defaulting Underwriters the number of Units which you are to purchase.
In the event any such arrangements are made, the respective number of Units
to be purchased by non-defaulting Underwriters and by such others shall be
taken as the basis for the Underwriters and by such others shall be taken as
the basis for the underwriting obligations under this Agreement.
In the event of default by one or more Underwriters in respect of their
obligations under this Agreement, each non-defaulting Underwriter shall
assume its proportionate share of the obligations under this Agreement of
each such defaulting Underwriter (other than, to the extent stated in the
first paragraph of this Section, the purchase obligation of such defaulting
Underwriter).
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13. POSITION OF REPRESENTATIVE. We shall be under no liability to you
for any act or omission, except for obligations expressly assumed by us in
this Agreement, but no obligation on our part shall be implied or inferred
therefrom. Nothing shall constitute the Underwriters, or any of them, an
association, partnership, unincorporated business or other separate entity
and the rights and liability of ourselves and each of the other Underwriters
are several and not joint.
14. INDEMNIFICATION. You will indemnify and hold harmless each other
Underwriter and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Securities Act of 1933, as amended, to the
extent and upon the terms by which each Underwriter agrees to indemnify the
Company in the Underwriting Agreement. Such indemnity agreement shall
survive the termination of any of the provisions of this Agreement.
In the event that at any time any claim shall be asserted against us, as,
or a result of our having acted as, Representative, or otherwise involving
the Underwriters generally, relating to the Registration Statement or any
preliminary prospectus or the Prospectus, as from time to time amended or
supplemented, the public offering of the Units or any of the transactions
contemplated by this Agreement, you authorize us to make such investigation,
to retain such counsel and to take such other action as we shall deem
necessary or desirable under the circumstances, including settlement of any
claim or claims if such course of action shall be recommended by counsel
retained by us. You agree to pay to us, on request, your proportionate share
(based upon your underwriting obligation) of all expenses incurred by us
(including, but not limited to, the disbursements and fees of counsel so
retained) in investigating and defending against such claim or claims, and
your proportionate share (based upon your underwriting obligation) of any
liability incurred by us in respect of such claim or claims, whether such
liability shall be the result of a judgment against us or as a result of any
such settlement.
15. BLUE SKY MATTERS. You shall not have any responsibility with
respect to the right of any Underwriter or other person to sell Units in any
jurisdiction, notwithstanding any information we may furnish in that
connection. You hereby authorize us to file or cause to be filed, on your
behalf, a New York Further State Notice, if required, and to take such other
action as may be necessary or advisable to qualify the Units for offering and
sale in any jurisdiction.
16. TITLE TO SECURITIES. The Units purchased for the respective
accounts of the several Underwriters shall remain the property of those
Underwriters until sold; and no title to such securities shall in any event
pass to us, as Representative, by virtue of any of the provisions of this
Agreement.
17. CAPITAL REQUIREMENT. You confirm that your commitment hereunder
will not result in any violation of Section 8(b) or 15(c) of the Securities
Exchange Act of 1934 or the rules and regulations thereunder, including Rule
15c3-1, or any provision of any applicable rules of any securities exchange
to which you are subject or of any restriction imposed upon you by such
exchange.
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18. NOTICES AND GOVERNING LAW. Any notice from you to us shall be
delivered, mailed, telegraphed, or telefaxed to us at First Midwest
Securities, Inc. Any notice from us to you shall be delivered, mailed,
telegraphed, or telefaxed to you at your address as set forth below.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Wisconsin.
We represent that we are a member in good standing of the National
Association of Securities Dealers, Inc.. You represent that you are a member
in good standing of said Association.
Very truly yours,
FIRST MIDWEST SECURITIES, INC.
By
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▇▇▇▇▇ ▇▇▇▇▇, President
Confirmed and accepted as of the date
first above written.
By
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Name of Underwriter
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Authorized Signature
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Address
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Telephone Number
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Number of Units Purchased
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