14
CAVION TECHNOLOGIES, INC.
AGREEMENT AMONG UNDERWRITERS
---------------------, 1999
NEIDIGER, TUCKER, BRUNER, INC.
As Representative of the Several Underwriters
300 Plaza Level
1675 Larimer Street
Denver, Colorado 80202
Gentlemen:
We confirm our agreement among you, the undersigned and the
other prospective Underwriters named in Schedule I to the
Underwriting Agreement with respect to the purchase, severally,
from Cavion Technologies, Inc., a Colorado corporation (the
"Company"), of an aggregate of 1,200,000 shares (the "Firm
Shares") of the Company's common stock, $.0001 par value per
share (the "Common Stock"). In addition, the Company has granted
to the Underwriters an option to purchase from the Company up to
an aggregate of 180,000 additional shares of Common Stock (the
"Option Shares") for the sole purpose of covering over-allotments
in the sale of the Firm Shares upon the terms and conditions
stated in the Underwriting Agreement. Unless otherwise defined
herein, capitalized terms in this Agreement shall have the
meanings given to such terms in the Underwriting Agreement. We
agree in accordance with the terms hereof and the Underwriting
Agreement to purchase the number of Firm Shares set forth
opposite our names in Schedule I to the Underwriting Agreement
and to purchase Option Shares in the same proportion as the
number of our Firm Shares is to the 1,200,000 shares of Common
Stock. The Firm Shares and any Option Shares purchased under the
Underwriting Agreement are hereinafter sometimes collectively
called the "Securities."
We confirm that our net capital and ratio of aggregate
indebtedness to net capital are such that we may, in accordance
with and pursuant to Rule 15c3-1, promulgated by the Securities
and Exchange Commission (the "Commission") under the Securities
Exchange Act of 1934 (the "1934 Act") and agree to purchase the
number of Securities set forth opposite our names in Schedule I
to the Underwriting Agreement (together with any increase in such
number provided for herein or in the Underwriting Agreement).
We are familiar with Rule 15c2-8 promulgated by the
Commission under the 1934 Act relating to the distribution of
preliminary and final prospectuses and confirm that we have
complied and will comply therewith. You hereby confirm that you
will make available to each Underwriter, from time to time, such
number of copies of the Preliminary Prospectus and Prospectus (as
amended or supplemented) as such underwriter may reasonably
request for the purposes contemplated by the Securities Act of
1933, as amended (the "1933 Act") or the 1934 Act, or the
applicable rules and regulations of the Commission thereunder.
SECTION 1. AUTHORITY OF THE REPRESENTATIVE. We authorize
you, as our Representative, (a) to execute and deliver the
Underwriting Agreement on our behalf in substantially the form
annexed hereto as Exhibit A, with such changes as in your
judgment are advisable or appropriate, including but not limited
to increases or decreases in the number of Securities to be
purchased hereunder, and changes in those who are to be
Underwriters and in the respective number of Securities to be
purchased by them (but not any increase in the number of
Securities to be purchased by us except with our consent or as
provided in this Agreement and the Underwriting Agreement), (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 such other action as you deem advisable
or appropriate in connection with the performance of this
Agreement and the Underwriting Agreement and the purchase,
carrying, sale and distribution of the Securities, except that,
without the consent of a majority in interest of the Underwriters
(including yourselves), you shall not consent to any extension of
more than 24 hours of the time provided in Section 9(x) of the
form of Underwriting Agreement within which the Registration
Statement shall have become effective.
SECTION 2. SALE TO THE PUBLIC. It is expected that the
sale of the Securities to the public will commence as soon in
your judgment as advisable after the Registration Statement has
become effective. We will not sell any Securities until they are
released by you for that purpose.
The initial public advertisement will appear on such date
and will include the name of such of the Underwriters as you
may determine. Thereafter any Underwriter may advertise at its
own risk and expense.
SECTION 3. OFFERING TO SELECTED DEALERS AND OTHERS. We
authorize you, for our account, to reserve and offer for sale and
sell such number of Securities to be purchased by us as you shall
determine to dealers (the "Selected Dealers"), among whom any of
the Underwriters may be included, who shall be members of the
National Association of Securities Dealers, Inc. ("NASD"), or
foreign dealers who are not eligible for membership in the NASD
and which foreign dealers agree to make no sales of the
Securities within the United States, its territories or its
possessions or to persons who are nationals thereof or residents
therein and, in making such sales, to comply with the
requirements of the Conduct Rules of the NASD (including Rules
2730, 2740, and 2750, and Rule 2420 as that Rule applies to non-
member foreign dealers) and the Interpretation of the Board of
Governors of the NASD with respect to Free-riding and
Withholding. Such offering may be made under a Selected Dealer
Agreement substantially in the form attached hereto (the
"Selected Dealer Agreement") or otherwise. The price to Selected
Dealers shall be the public offering price less a concession to
be determined by you of not in excess of 50% of the difference
between the initial public offering price of the Securities and
the purchase price to be paid by the Underwriters for the
Securities. We also authorize you, for our account, to reserve
and offer for sale and sell Securities to be purchased by us, at
the public offering price, to institutions or other retail
purchasers other than Selected Dealers. Such reservations and
sales to others shall be as nearly as practicable in proportion
to our underwriting obligation, unless you agree to a smaller
proportion at our request. At or before the time of the public
offering you will advise us of the number of Securities to be
purchased by us which have not been reserved for sale as provided
in this Section.
Sales to Selected Dealers shall be made as nearly as
practicable in the ratio which the number of Securities reserved
for our account bears to the aggregate number of Securities
reserved for the account of all Underwriters, as evaluated from
day to day. You may deliver to any of the Underwriters from time
to time, (i) for earning purposes, or (ii) for sale by such
Underwriter, any of the Securities then reserved for offering and
sale to, but not purchased and paid for by, Selected Dealers or
others as above provided; but to the extent that Securities are
so delivered for sale by such Underwriter, the number of
Securities then reserved for the account of such Underwriter
shall be correspondingly reduced. Securities delivered for
carrying purposes only must be redelivered to you upon your
demand
We will repurchase any Securities sold by us, except through
you, which shall be contracted for or purchased by you in the
open market during the life of this Agreement or within seven
days after the termination thereof, on demand, at a price equal
to the cost of such purchase plus tax on redelivery and
commission, if any. In lieu thereof you may, in your discretion,
(i) sell the same for our account at such prices and upon such
terms and to such persons, including any of the other
Underwriters, as you may determine, charging the amount of any
loss and expense or crediting the amount of any profit, less any
expense, resulting from such sale, to our account, or (ii) charge
our account with an amount not in excess of the concession to
Selected Dealers on such Securities, plus commissions and taxes
paid in connection with such purchase.
Each Underwriter agrees that if any such offering is made
pursuant to a Selected Dealer Agreement, it will be governed by
the terms and provisions thereof.
SECTION 4. PAYMENT AND DELIVERY; SETTLEMENT OF ACCOUNT. On
or before the close of business, Denver time, on the last
Business Day prior to the Firm Closing Date and the Option
Closing Date, if any, referred to in the Underwriting Agreement
or on such other date as you may advise, we will deliver to NTB's
offices at 300 Plaza Level, 1675 Larimer Street, Denver, Colorado
80202, a certified or official bank check in Denver Clearing
House funds to your order for an amount equal to the initial
public offering price less the selling concession in respect of
the number of Securities which we have agreed to purchase
pursuant to the Underwriting Agreement. We authorize you for our
account to make payment of the purchase price of the Securities
which we have agreed to purchase against delivery to you of such
Securities, and the difference between the purchase price of the
Securities which we have agreed to purchase and an amount equal
to the initial public offering price less the selling concession
in respect of the number of Securities which we have agreed to
purchase shall be credited to our account. You may, in your
discretion, make payment of the purchase price on our behalf and,
if we are a member of, or clear through a member of, the
Depository Trust Company ("DTC") you may, in your discretion,
deliver our Securities through the facilities of DTC. You may,
in your discretion, make such payment on our behalf with your own
funds, in which event we will reimburse you upon demand. Any
such payment by you shall not relieve us from any of our
obligations hereunder or under the Underwriting Agreement.
Delivery of the Securities reserved by us for direct sale will be
made by you as soon as practicable following the Time of
Delivery.
Upon receiving payment for Securities reserved for Selected
Dealers and others as provided in Section 3 hereof, you are to
remit an amount equal to the amount paid by us to you in respect
of such Securities and credit or charge our account with the
difference, if any, between such amount and the price at which
such Securities were sold.
SECTION 5. COMPENSATION TO THE REPRESENTATIVE. As
compensation for your services in connection with the
underwriting and the managing of the offering, each Underwriter
agrees to pay you an amount to be determined by you for each of
the Securities which it agrees to purchase pursuant to the
Underwriting Agreement, and authorizes you to charge its account
with such amount.
SECTION 6. AUTHORITY OF THE REPRESENTATIVE TO BORROW. You
are herein authorized in your discretion to advance your own
funds for our account, charging current interest rates, or to
arrange loans for our account or the account of one or more of
the Underwriters, severally and not jointly, to execute and
deliver any notes or other instruments in connection therewith
and to pledge all or any part of the Securities which such
Underwriter or Underwriters shall have become obligated to
purchase under any of the terms of this Agreement or of the
Underwriting Agreement as security therefor. Any lender is
hereby authorized to accept your instructions as to the
disposition of the proceeds of any such loans. Each Underwriter
will be reimbursed or credited with the proceeds of loans made
for its account. You may deliver to us from time to time, for
carrying purposes only, any of our Securities held by you. We
will redeliver to you on demand any Securities as delivered to us
for carrying purposes.
SECTION 7. TRADING AMONG UNDERWRITERS AND SELECTED DEALERS.
You may purchase Securities from, or sell Securities to, any of
the Selected Dealers or any of the Underwriters at the public
offering price thereof less a concession no greater than the
concession allowed to Selected Dealers. The Underwriters and the
Selected Dealers may, with your consent, purchase Securities from
and sell Securities to each other at the public offering price
less a concession no greater than the concession allowed to
Selected Dealers.
SECTION 8. STABILIZATION. In order to facilitate the
distribution of the Securities, you may, for the account of each
Underwriter, during the life of this Agreement, make purchases
and sales of the Securities, in the open market or otherwise, for
long or short account, at such prices, in such amounts and in
such manner as you may determine, and, in arranging for sales to
Selected Dealers or others, may over-allot, and either before or
after the termination of this Agreement you may cover any short
position incurred pursuant to this Section; provided that at the
close of business on any day the net commitment of each
Underwriter, either for long or short account, resulting from
such purchases or sales shall not exceed 15% of the aggregate
number of Securities which such Underwriter has agreed to
purchase pursuant to the Underwriting Agreement, except that such
percentage may be increased with the approval of a majority in
interest of the Underwriters. Such purchases and sales including
over-allotments shall be made for the accounts of the
Underwriters as nearly as practicable in proportion to their
respective underwriting obligations. Each Underwriter agrees to
take up at cost on demand any Securities of the Company so
purchased for its account and to deliver to you on demand any
Securities of the Company so sold for its account, and to pay to
you on demand the amount of any losses or expenses incurred for
its account pursuant to this Section. In the event of default by
one or more Underwriters in respect of their obligations under
this Section, each nondefaulting underwriter shall assume its
proportionate share of the obligations of such defaulting
Underwriter without relieving such defaulting Underwriter of its
liability hereunder. Each Underwriter agrees that during the
life of this Agreement or such shorter period as you may
determine it will not bid for or purchase for any account in
which it has a beneficial interest any of the Securities or
attempt to induce any person to purchase any Securities of the
Company; provided, however, that the foregoing shall not prohibit
(i) offers to sell or the solicitation of offers to buy
Securities to be acquired by an Underwriter pursuant to the
Underwriting Agreement, (ii) brokerage transactions not involving
solicitation of customers' orders, and (iii) transactions with
your written consent or otherwise permitted under this Agreement.
Each Underwriter agrees that at any time or times prior to
the termination of this Agreement it will, upon your request,
report to you the number of Securities purchased by it and not
reserved for offering to Selected Dealers and others, as herein
provided, which remains unsold and will upon your request, at
such time or times, deliver to you for its account or sell to you
for the account of one or more of the Underwriters, such number
of unsold Securities as you may designate at the public offering
price thereof less an amount to be determined by you not in
excess of the concession allowed to Selected Dealers.
If you effect any stabilizing purchase pursuant to this
Section, you will promptly notify us of the date and time when
the first stabilizing purchase was effected and the date and time
when stabilizing was terminated. You will file with the
Commission such reports of purchases, sales and transfers made
for the account of the Underwriters pursuant to this Section as
are required to be filed by you "as manager" pursuant to Rule 17a-
2 under the 1934 Act. We will furnish to you, not later than
five business days following the date on which stabilizing was
terminated, a signed original report "not as manager" as required
by said Rule 17a-2, which you shall cause to be filed with the
Commission on our behalf.
SECTION 9. ALLOCATION OF EXPENSES. The accounts of the
Underwriters shall be charged with all transfer taxes on sales
and other transfers for their respective accounts, and, in
proportion to their respective underwriting obligations, with all
expenses incurred by you or with your approval in connection with
the Underwriting Agreement and this Agreement and the purchase,
carrying, sale and distribution of the Securities. Your
determination of the amount of such expenses and the allocation
thereof as among the Underwriters shall be final and conclusive.
Funds of the Underwriters at any time in your hands may be
held in your general funds without accountability for interest.
You may in your discretion at any time make partial distribution
of credit balances of the Underwriters and may at any time call
on the Underwriters to pay their respective debit balances.
SECTION 10. BLUE SKY QUALIFICATIONS. Upon application, you
will inform any of the Underwriters as to the jurisdictions in
which it is believed that the Securities are qualified for sale
under, or are exempt from the requirements of, the respective
securities laws of such jurisdictions; but you, individually or
as Representative, assume no obligation or responsibility as to
the right of any Underwriter to sell Securities in any
jurisdiction.
SECTION 11. MEMBERSHIP IN NATIONAL ASSOCIATION OF
SECURITIES DEALERS. INC.; FOREIGN DEALERS. We understand that
you are a member in good standing of the NASD. We hereby confirm
that we are actually engaged in the investment banking or
securities business and that we are a member in good standing of
the NASD and agree to comply with all applicable rules of the
NASD, including, without limitation, the Interpretation of the
Board of Governors of the NASD with respect to Free-Riding and
Withholding (IM-2110-1) and Rule 2740 of the Conduct Rules or, if
we are not such a member, we are a foreign dealer who is not
eligible for membership in the NASD (a) who hereby agrees to make
no sales within the United States, its territories or its
possessions (except that we may participate in Selected Dealer
Sales) or to persons who are nationals thereof or residents
therein, and, in making such sales, to comply with the
Interpretation with respect to Free-Riding and Withholding, and
Rules 2730, 2740 and 2750 of the Conduct Rules as if we were an
NASD member and Rule 2420 of the Conduct Rules 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 the Securities made by
us outside the United States, (i) will either furnish to each
person to whom any such sale or offer to sell is made a copy of
the then current preliminary prospectus or the Prospectus (as
then amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), as the case may be, or
inform such person that such preliminary prospectus or the
Prospectus will be available upon request, and (ii) will furnish
to each person to whom any such sale or offer to sell is made
such prospectus, advertisement or other offering document
containing information relating to the Securities as may be
required under the laws of the jurisdiction in which such sale or
offer to sell is made. Any prospectus, advertisement or other
offering document furnished by us to any person in accordance
with clause (b)(ii) of the preceding sentence, and any such
additional offering material as we may furnish to any person, (i)
shall comply in all respects with the laws 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 Securities or the Company which is
inconsistent in any respect with the information contained in the
then current preliminary prospectus or in the Prospectus (as then
amended or supplemented if the Company shall have furnished any
amendments or supplements thereto), as the case may be.
SECTION 12. TERMINATION OF AGREEMENT. The provisions of
Sections 2, 3, 6, 7 and 8 of this Agreement shall terminate at
the close of business on the thirtieth Business Day after the
effective date of the Registration Statement, except as otherwise
provided in said Sections or unless expanded or earlier
terminated as hereinafter provided. You may terminate such
provisions at any time by written or telegraphic notice to us.
As soon as practicable after termination of the referenced
Sections, you will deliver to us any of our Securities reserved
but not sold and our account will be settled and paid, provided
that if the aggregate of all reserved and unsold Securities
(excluding Option Shares) of all Underwriters does not exceed
10% of the Securities, you are authorized in your discretion to
sell such Securities for the account of the several Underwriters
at such prices, on such terms and in such manner as you may
determine, and provided further that you may reserve from
distribution to the several Underwriters such amount as you deem
advisable to cover possible additional expenses.
Notwithstanding any settlement of our accounts, we agree to
pay (i) our proportionate share based on our underwriting
obligations of all expenses of the Underwriters, including any
liability based on the claim that the Underwriters constitute an
association, unincorporated business or other separate entity,
and of any expenses incurred by you or any other Underwriter with
your approval in contesting any such claim or liability, and (ii)
any transfer taxes paid after such settlement on account of any
sale or transfer for our account.
You may extend the provisions referred to hereinabove by an
additional period or periods not exceeding thirty full business
days in the aggregate.
SECTION 13. DEFAULT BY UNDERWRITERS. Default by one or
more Underwriters in respect of their several obligations
pursuant hereto or to the Underwriting Agreement shall not
release any other Underwriter from its obligations (except as
provided in Section 9 of the Underwriting Agreement, or in any
way affect the liability of any defaulting Underwriter to the
other Underwriters for damages resulting from such default. If
one or more Underwriters default under the Underwriting
Agreement, you are authorized to increase pro rata with other
nondefaulting Underwriters the principal amount of Securities
which we shall be obligated to purchase pursuant to the
Underwriting Agreement, provided that the aggregate number of all
such increases for our account (exclusive of increases by
exercise of the right to purchase Option Shares) shall not exceed
10% of our total commitment to purchase the Firm Shares set forth
opposite our names in Schedule I to the Underwriting Agreement;
and you are further authorized, but shall not be obligated, to
arrange for the purchase by other persons, including
nondefaulting Underwriters, of the Securities not taken up by
such defaulting Underwriters. In the event any such arrangements
are made, the respective number of Securities purchased by
nondefaulting Underwriters and by any other persons shall be
taken as the basis for their underwriting obligations under this
Agreement, without relieving any such defaulting Underwriter of
its liability therefor.
SECTION 14. POSITION OF REPRESENTATIVE. Except as in this
Agreement otherwise specifically provided, you shall have full
authority to take such action as you may deem necessary or
advisable in respect of all matters pertaining to the
Underwriting Agreement, this Agreement and the purchase,
carrying, sale and distribution of the Securities; but you shall
be under no liability to us, except for your own want of good
faith, for obligations assumed by you in this Agreement and for
any liabilities arising under the 1933 Act. No obligations not
expressly assumed by you in this Agreement shall be implied
hereby or inferred herefrom. Authority with respect to matters
to be determined by you or by you and the Company pursuant to the
Underwriting Agreement or by you pursuant to this Agreement shall
survive the termination of this Agreement.
Nothing herein contained shall constitute the Underwriters
an association, or partners, with you, or with each other, or,
except as otherwise provided in this Agreement or in the
Underwriting Agreement, render any Underwriter liable for the
obligations of any other Underwriter and the rights, obligations
and liabilities of each of the Underwriters are several in
accordance with their respective obligations and not joint.
SECTION 15. INDEMNIFICATION.
(a) We will indemnify and hold harmless you and each other
Underwriter and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the 1933 Act to
the extent that and upon the terms which each Underwriter agrees
to indemnify and hold harmless the Company as set forth in the
Underwriting Agreement.
(b) In the event, at any time, any claim or claims whether
alone or together with another claim or claims) shall be asserted
against you individually or as a result of your having acted as
Representative or against any other Underwriter, or against any
person who controls you or such other Underwriter within the
meaning of Section 15 of the 1933 Act, 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
Securities or any of the transactions contemplated by this
Agreement or the Underwriting Agreement, we authorize you to make
such investigations, to retain such counsel (including, in your
discretion, separate counsel for any Underwriter or group of
Underwriters; provided, however, that we may elect to retain, at
our expense, our own counsel) and to take such other action as
you shall deem necessary or desirable under the circumstances,
including settlement of any such claim or claims. We agree to
pay to you, on request, at such time or times as you determine,
our proportionate share (based upon our underwriting obligation)
of all expenses incurred by you, including, but not limited to,
the disbursements and fees of counsel so obtained, in
investigating, defending against, or negotiating with respect to
such claim or claims, and in our proportionate share (based upon
our underwriting obligation) of any liability incurred by you, by
any such other Underwriter or by any such controlling person in
respect to such claim or claims, and in our proportionate share
(based upon our underwriting obligation) of any liability
incurred by you, by any such other Underwriter or by any such
controlling person in respect of such claim or claims, whether
such liability shall be the result of a judgment or the result of
any such settlement. There shall be credited against any amount
paid or payable by us pursuant to this subsection any loss,
claim, damage, liability, or expense which is incurred by us as a
result of any such claim asserted against us; and if such loss,
claim, damage, liability, or expense is incurred by us subsequent
to any payment by us pursuant to this subsection, appropriate
provision shall be made to effect such credit, by refund or
otherwise. If any Underwriter or Underwriters default in its or
their obligation to make any payments under this subsection, each
nondefaulting Underwriter shall be obligated to pay its
proportionate share of all defaulted payments; provided, however,
that nothing herein relieves the defaulting Underwriter from
liability for its default. In addition, we will cooperate with
you and counsel retained by you in investigating, defending
against, and/or negotiating with respect to such claim or claims
and will make available to you and such counsel all records and
documents and appropriate personnel which you or such counsel
deem relevant. We understand that the discharge of any
obligations that we may have under the provisions of this
subsection shall not relieve us of any obligation that we may
have under subsection (a) of this Section 15.
(c) The provisions of this Section 15 and our agreements
contained herein shall remain in full force and effect regardless
of any investigation made by or on behalf of any Underwriter or
controlling person and shall survive the delivery of the
Securities and the termination of this Agreement.
SECTION 16. NOTICES. Any notice from you to the
undersigned shall be deemed to have been duly given if mailed,
telephoned (excepting a notice pursuant to Section 12 hereof) or
sent by facsimile to us at our address appearing in Schedule I to
the Underwriting Agreement or in an Underwriter's Questionnaire
addressed to us.
SECTION 17. GOVERNING LAW. This Agreement shall be
governed by and construed in accordance with the laws of the
State of Colorado without giving any effect to any choice of law
or conflict of law provision or rule whether of the State of
Colorado or any other jurisdiction that would cause the
application of the laws of any jurisdiction other than the State
of Colorado. The parties agree to the exclusive jurisdiction of
the courts of the State of Colorado or of the United States of
America for the District of Colorado and irrevocably submit to
such jurisdiction, which jurisdiction shall be exclusive, in
connection with any action brought by any party hereto relating
to this Agreement or to the transactions which are the subject
matter hereof.
SECTION 18. MISCELLANEOUS. We understand that, in
consideration of your services in connection with the public
offering of the Securities, the Company has agreed with you,
individually, and not as Representative of the Underwriters: (a)
to sell to you and your designees the Representative's Warrant
provided in Section 2 of the Underwriting Agreement; (b) to pay
to you a nonaccountable expense allowance of 2% of the total
offering proceeds provided in Section 5 of the Underwriting
Agreement; (c) to allow you to designate one director or advisor
on the Company's Board of Directors for two years after the
effective date of the Registration Statement and (d) to pay
$48,000, in the aggregate, for services pursuant to a Financial
Consulting Agreement provided in Section 4 of the Underwriting
Agreement. We confirm to you that we will make no claims to the
Representative's Warrant, (or the underlying shares of Common
Stock), the nonaccountable expense allowance, the right to
designate a director advisor or consulting fees or arrangements.
You confirm to us that we shall have no obligation or liability
with respect to the purchase of the Representative's Warrant or
the exercise thereof, the nonaccountable expense allowance, the
right to designate a director advisor, or any consulting services
or arrangements.
SECTION 19. PURCHASE IN THE OPEN MARKET. Any Securities
sold by us otherwise than through you which you purchase in the
open market at or below the initial public offering price for the
account of any Underwriter shall be repurchased by us on demand
at the cost of such purchase, plus commissions and taxes on
redelivery. Securities delivered on such repurchase need not be
the identical certificates so purchased. In lieu of such action,
you may in your discretion sell for our account the Securities so
purchased and debit or credit our account for the loss or profit
resulting from such sale or charge our account with an amount not
in excess of the Selected Dealers concession with respect to such
Securities.
SECTION 20. EXECUTION OF THIS AGREEMENT. This Agreement
is being executed by and delivered to you in duplicate. Upon
your receipt of identical agreements from each of the other
Underwriters, please confirm this Agreement and return one copy
to us. This Agreement may be signed in any number of
counterparts which taken together shall constitute one and the
same instrument.
Very truly yours,
By:-------------------------------
(Attorney-in-fact for each of
the several Underwriters named
in Schedule I of the attached
Underwriting Agreement)
Confirmed as of the date first above written:
NEIDIGER, TUCKER, BRUNER, INC.
as Representative of the Several Underwriters
By:-------------------------
Name:
Title: