1,200,000 Shares of Common Stock
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
To the Underwriters named in Schedule I
to the attached Underwriting Agreement
Ladies and Gentlemen:
1. UNDERWRITING AGREEMENT. We understand that Cavion
Technologies, Inc., a Colorado corporation (the "Company"), proposes to
enter into an underwriting agreement (the "Underwriter Agreement") in
substantially the form attached to this Agreement Among Underwriters (the
"Agreement") with you and other prospective underwriters (including us)
(collectively, the "Underwriters") providing for the several, and not
joint, purchase by the Underwriters from the Company of 1,200,000 shares
of its Common Stock, $.0001 par value, upon the terms stated in the
Underwriting Agreement (such 1,200,000 shares of Common Stock are herein
referred to as the "Firm Shares"), in which we will agree in accordance
with the terms thereof to purchase the number of Firm Shares set forth
opposite our name in Schedule I thereto. In addition, the Company
proposes to grant to the Underwriters, upon the terms stated in the
Underwriting Agreement, the right to purchase up to an additional 180,000
shares of Common Stock (the "Option Shares") for the sole purpose of
covering over-allotments in the sale of the Firm Shares. We will agree in
accordance with the terms of the Underwriting Agreement to purchase our
proportionate share of the Option Shares which you determine to be
purchased. The Firm Shares and the Option Shares are collectively
referred to herein as the "Shares."
2. REGISTRATION STATEMENT AND PROSPECTUS. The Shares are more
particularly described in a registration statement (Registration No. -----
- -----------) filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933 (the "Act"). Amendments to
such registration statement have been or are being filed, or a form of
prospectus is being filed pursuant to Rule 424(b) and Rule 430A under the
Act, or a Term Sheet or Abbreviated Term Sheet is being filed pursuant to
Rule 424(b)(7) under the Act, in which, with our consent hereby confirmed,
we have been named as one of the Underwriters of the Shares. A copy of
the registration statement as filed and a copy of each amendment as filed
(excluding exhibits) have heretofore been delivered to us. We confirm
that we have examined the registration statement, including amendments
thereto, relating to the Shares, as filed with the Commission, that we are
willing to accept the responsibilities of an Underwriter under the Act in
respect of the registration statement, and we are willing to proceed with
a public offering of the Shares in the manner contemplated therein. The
registration statement and the related prospectus may be further amended,
but no such amendment or change
shall release or affect our obligations hereunder or under the
Underwriting Agreement. As used herein, the terms "Registration
Statement," "Prospectus," "Preliminary Prospectus," "Term Sheet" and
"Abbreviated Term Sheet" shall have the same meanings as specified in the
Underwriting Agreement.
3. AUTHORITY OF NEIDIGER, TUCKER, BRUNER, INC. We hereby
authorize Neidiger, Tucker, Bruner, Inc., acting on our behalf, as our
representative (a) to complete, execute. and deliver the Underwriting
Agreement, to determine the public offering price of the Shares,
concessions and any reallowances to Selected Dealers (as hereinafter
defined) and the underwriting' discount with respect thereto and to make
such variations, if any, as in your judgment are appropriate and are not
material, provided that the respective amount of Shares set forth opposite
our name in Schedule I thereto shall not be increased without our consent,
except as provided herein or in the Underwriting Agreement, (b) to waive
performance or satisfaction by the Company of obligations; or conditions
included in the Underwriting Agreement if in your judgment such waiver
will not have a material adverse effect upon the interests of the
Underwriters, and (c) to take such action as in your discretion may be
necessary or advisable to carry out the Underwriting Agreement, this
Agreement and the transactions for the accounts of the several
Underwriters contemplated thereby and hereby. We also authorize you to
determine all matters relating to the public advertisement of the Shares
4. PUBLIC OFFERING. We authorize you, with respect to any Shares
which we so agree to purchase, to reserve for sale, and on our behalf
sell, to dealers selected by you (including you or any of the other
Underwriters, such dealers so selected being hereinafter called "Selected
Dealers") and to others all or part of our Shares as you may determine.
Reservations for sales to persons other than Selected Dealers shall be as
nearly as practicable in proportion to the respective underwriting
obligations of the Underwriters, unless you agree to a smaller proportion
at the request of an Underwriter. Reservations for sales to Selected
Dealers need not be in such proportion. All sales of reserved Shares
shall be as nearly as practicable in proportion to the respective
reservations as calculated from day to day.
In your discretion, from time to time, you may add to the reserved
Shares any Shares retained by us remaining unsold, and you may upon our
request release to us any of our Shares reserved but not sold. Any Shares
so released shall not thereafter be deemed to have been reserved. Upon
termination of this Agreement, or prior thereto at your discretion, you
shall deliver to our account any of our Shares reserved but not sold and
delivered, except that if the aggregate of all reserved but unsold and
undelivered Shares is less than 120,000 Shares, you are authorized to sell
such Shares for the accounts of the several Underwriters at such price as
you may determine.
Sales of reserved Shares shall be made to Selected Dealers at the
public offering price less the Selected Dealers' Concession (herein so
called) pursuant to the Selected Dealer Agreement in substantially the
form attached hereto, and to others at the public offering price.
Underwriters and Selected Dealers may reallow a concession to other
dealers as set forth in the Selected Dealer Agreement.
After advice from you that the Shares are released for sale to the
public, we will offer to the public in conformity with the terms of the
offering set forth in the Prospectus such of our Shares as you advise us
are not reserved. We authorize you after the Shares are released for sale
to the public, in your discretion, to change the public offering price of
the Shares and the Concession, and to buy Shares for our account from
Selected Dealers at the public offering price less such amount not in
excess of the Selected Dealers' Concession as you may determine.
Sales of Shares between Underwriters may be made with your prior
consent, or as you deem advisable for blue sky purposes.
We agree that we will not sell to any accounts over which we exercise
discretionary authority any Shares which we have agreed to purchase under
the Underwriting Agreement.
5. ADDITIONAL PROVISIONS REGARDING SALES. You may, in your
discretion, charge our account with an amount equal to the Selected
Dealers' Concession in respect of each Share purchased under the
Underwriting Agreement by you and not sold by you for our account (and
each Share which you believe has been substituted therefor) which may be
delivered against a purchase contract made by you for our account prior to
the later of (a) the termination of all of the provisions referred to in
Section 10 hereof or (b) the covering by you of any short position created
by you for our account, or in lieu of such charge, require us to
repurchase on demand at the total cost thereof (including commissions),
plus transfer taxes, any such Share so delivered.
6. PAYMENT AND DELIVERY. At or before 8:00 a.m., Denver, Colorado
time, on the Firm Closing Date (as defined in the Underwriting Agreement)
and on each Option Closing Date (as defined in the Underwriting
Agreement), we will deliver to you at your office at 300 Plaza Level, 1675
Larimer Street, Denver, Colorado 80202, by wire transfer or a certified or
bank cashiers' check payable to your order, in clearing house funds, in
the amount equal to the initial offering price set forth in the Prospectus
less the Selected Dealers' Concession in respect of the number of Firm
Shares or Option Shares, as the case may be, to be purchased by us
pursuant to the Underwriting Agreement. We authorize you for our account
to make payment of the purchase price for the Shares to be purchased by us
against delivery to you of such Shares, and the difference between such
price and the amount of our check delivered to you therefor shall be
credited to our account. Unless we notify you at least two full business
days prior to such Firm Closing Date (or, if applicable, such Option
Closing Date) to make other arrangements, you may, in your discretion,
advise the Company to prepare our certificates in our name. If you have
not received our funds as requested, you may in your discretion make such
payment on our behalf, in which event we will reimburse you promptly. Any
such payment by you shall not relieve us from any of our obligations
hereunder or under the Underwriting Agreement.
We authorize you for our account to accept delivery of our Shares
from the Company and to hold such of our Shares as you have reserved for
sale to Selected Dealers and others and to deliver such Shares against
such sales. You will deliver to us our unreserved Shares as promptly as
practicable.
Notwithstanding the foregoing provisions of this Section 6, if you so
notify us, payment for and delivery of our Shares may be made through the
facilities of The Depository Trust Company, if we are a member, unless we
have otherwise notified you prior to a date to be specified by you, or, if
we are not a member, settlement may be made through a correspondent who is
a member pursuant to instructions we may send to you prior to such
specified date.
As promptly as practicable after you receive payment for reserved
Shares sold for our account, you will remit to us the purchase price paid
by us for such Shares and credit or debit our account with the difference
between the sale price and such purchase price.
7. AUTHORITY TO BORROW. In connection with the transactions
contemplated in the Underwriting Agreement or this Agreement, we authorize
you, in your discretion, to advance your own funds for our account,
charging current interest rates, to arrange loans for our account and in
connection therewith to execute and deliver any notes or other instruments
and hold or pledge as security any of our Shares or any Common Stock of
the Company purchased for our account. Any lender may rely upon your
instructions in all matters relating to any such loan.
Any of our Shares and any Common Stock of the Company purchased for
our account held by you may from time to time be delivered to us for
carrying purposes, and any such securities will be delivered to you upon
demand.
8. STABILIZATION AND OTHER MATTERS. We authorize you in your
discretion to make purchases and sales of the Common Stock of the Company
for our account in the open market or otherwise, for long or short
account, on such terms as you deem advisable and in arranging sales to
over-allot. If you have purchased Common Stock for stabilizing purposes
prior to the execution of this Agreement, such purchases shall be treated
as having been made pursuant to the foregoing authorization. We also
authorize you, either before or after the termination of the offering
provisions of this Agreement, to cover any short position incurred
pursuant to this Section on such terms as you deem advisable. All such
purchases and 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. Our net commitment under this
Section (excluding any commitment incurred under the Underwriting
Agreement upon exercise of the right to purchase Option Shares) shall not,
at the end of any business day, exceed 10% of our maximum underwriting
obligation. We will on your demand take up and pay for at cost any Common
Stock so purchased or sold or over-allotted for our account, and, if any
other Underwriter defaults in its corresponding obligation, we will assume
our proportionate share of such obligation without relieving the
defaulting Underwriter from liability. We will be obligated in respect
of purchases and sales made for our account hereunder whether or not any
proposed purchase of the Shares from the Company is consummated. The
existence of this provision is no assurance that the price of the Shares
will be stabilized or that, if stabilizing is commenced, it may not be
discontinued at any time.
We agree to advise you, from time to time upon your request, during
the term of this Agreement, of the number of Shares retained by us
remaining unsold, and will, upon your request, sell to you for the
accounts of one or more of the several Underwriters such number of such
Shares as you may designate at such prices, not less than the net price to
Selected Dealers nor more than the public offering price, as you may
determine.
If you effect any stabilizing purchase pursuant to this Section 8,
you will notify us promptly of the date and time when the first
stabilizing purchase was effected and the date and time when stabilizing
was terminated. You will retain such information as is required to be
retained by you as "Manager" pursuant to Rule 17a-2 under the Securities
Exchange Act (the "Exchange Act"). We agree that we will not effect any
stabilizing purchases without your express authorization, and, if any
purchases are effected, we agree to furnish to you not later than three
business days following the date upon which stabilization was commenced
such information as is required under Rule 17a-2(d).
With respect to the Underwriting Agreement, you are also authorized
in your discretion (a) to exercise the option therein as to all or any
part of the Option Shares, and to terminate such option in whole or in
part prior to its expiration, (b) to postpone the (Firm Closing Date and
the Option Closing Date referred to in the Underwriting Agreement, and any
other time or date specified therein, (c) to exercise any right of
cancellation or termination, (d) to arrange for the purchase by other
persons (including yourselves or any other Underwriter) of any Shares not
taken up by any defaulting Underwriter, and (e) to consent to such other
changes in the Underwriting Agreement as in your judgment do not
materially adversely affect the substance of' our rights and obligations
thereunder.
We further agree that (a) prior to the termination of this Agreement
we will not, directly or indirectly, bid for or purchase any Shares for
our own account, except as provided in this Agreement and in the
Underwriting Agreement, and (b) prior to the completion (as defined in
Regulation M promulgated under the Exchange Act) of our participation in
this distribution, we will otherwise comply with Regulation M promulgated
under the Exchange Act.
9. ALLOCATION OF EXPENSES AND SETTLEMENT. We authorize you to
charge our account with (a) all transfer taxes on Shares purchased by us
pursuant to the Underwriting Agreement and sold by you for our account,
(b) Selected Dealers' Concessions in connection with the purchase,
marketing and sale of the Shares for our account, and (c) our
proportionate share (based upon our underwriting obligation) of all other
expenses incurred by you under this Agreement and in connection with the
purchase, carrying, sale and distribution of the Shares. Your
determination of the amount and allocation of such expenses shall be
conclusive. In the event of the default of any Underwriter in carrying
out its obligations hereunder, the expenses chargeable to such Underwriter
pursuant to this Agreement and not paid by it, as well as any additional
losses or expenses arising from such default, may be proportionately
charged by you against the other Underwriters not so defaulting (including
such other persons who purchase Shares upon a default by an Underwriter
pursuant to Section 11 hereof), without, however, relieving such
defaulting Underwriter from its liability therefor.
As soon as practicable after termination of this Agreement, the
accounts hereunder will be settled, but you may reserve from distribution
such amount as you deem necessary to cover possible additional expenses.
You may at any time make partial distributions of credit balances or call
for payment of debit balances. Any of our funds in your hands may be held
with your general funds without accountability for interest.
Notwithstanding the termination of this Agreement or any settlement, we
will pay (a) our proportionate share (based on our underwriting
obligation) of all expenses and liabilities which may be incurred by or
for the accounts 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 (b) any transfer taxes paid after such settlement on
account of any sale or transfer for our account.
10. TERMINATION. The offering provisions of this Agreement shall
terminate 30 days from the date hereof unless extended by you. You may
extend said provisions for a period or periods not exceeding an additional
30 days in the aggregate, provided that the Selected Dealer Agreements, if
any, are similarly extended. Whether extended or not, said provisions may
be terminated in whole or in part by notice from you.
11. DEFAULT BY UNDERWRITERS. Default by one or more Underwriters
in respect of their obligations hereunder or under the Underwriting
Agreement shall not release us from any of our obligations or in any way
affect the liability of any defaulting Underwriter to the other
Underwriters for damages resulting from such default. In case of such
default by one or more Underwriters, you are authorized to increase, pro
rata with other non-defaulting Underwriters, the number of Shares which we
shall be obligated to purchase pursuant to the Underwriting Agreement,
provided that the aggregate amount of all such increases for our account
shall not exceed 10% of our total commitment to purchase the Firm Shares
set forth opposite our names on Schedule I of the Underwriting Agreement;
and you are further authorized to arrange, but shall not be obligated to
arrange, for the purchase by other persons, who may include yourselves or
other Underwriters, of all or a portion of any aggregate amount not taken
up. In the event any such arrangements are made, the respective numbers
of Shares to be purchased by the non-defaulting Underwriters and by any
such other persons shall be taken as the basis for the underwriting
obligations under this Agreement.
12. POSITION OF NEIDIGER, TUCKER, BRUNER, INC. Except as otherwise
specifically provided in this Agreement, you shall have full authority to
take such action as you may deem advisable in respect of all matters
pertaining to the Underwriting Agreement and this Agreement and in
connection with the purchase, carrying, sale, and distribution of the
Shares (including authority to terminate the Underwriting Agreement as
provided therein). You shall be under no liability to us for or in
respect of the value of the Shares or the validity or the form thereof,
the Registration Statement, any Preliminary Prospectus, 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
the Shares; or for the performance by the Company or others of any
agreement on its or their part; nor shall you be liable under any of the
provisions hereof or for any matters connected herewith, except for your
own want of good faith, for obligations expressly assumed by you in this
Agreement and for any liabilities imposed upon you by the Act. No
obligations on your part shall be implied or inferred herefrom. Authority
with respect to matters to be determined by you, or by you and the
Company, pursuant to the Underwriting Agreement, shall survive the
termination of this Agreement.
In taking all actions hereunder, except in the performance of your
own obligations hereunder and under the Underwriting Agreement, you shall
act only as the representative of each of the Underwriters. The
commitments and liabilities of each of the several Underwriters are
several in accordance with their respective purchase obligations and are
not joint or joint and several. Nothing contained herein shall constitute
the Underwriters partners or render any of them liable to make payments
otherwise than as herein provided. If for federal income tax purposes the
Underwriters should be deemed to constitute a partnership, then each
Underwriter elects to be excluded from the application of Subchapter K,
Chapter 1, Subtitle A, of the Internal Revenue Code of 1986, as amended,
and agrees not to take any position inconsistent with such election. Each
Underwriter authorizes Neidiger, Tucker, Bruner, Inc., in its discretion
on behalf of such Underwriter, to execute such evidence of such election
as may be required by the Internal Revenue Service.
13. COMPENSATION TO NEIDIGER, TUCKER, BRUNER, INC. As compensation
for your services in connection with the purchase of the Shares and the
management of the public offering of the Shares, we agree to pay you and
authorize you to charge our account with an amount equal to $-------- per
share of the Shares which we have agreed to purchase pursuant to the
Underwriting Agreement.
14. INDEMNIFICATION AND FUTURE CLAIMS. Each underwriter, including
you, agrees to indemnify, hold harmless and reimburse each other
Underwriter and each person, if any, who controls any other Underwriter
within the meaning of Section 15 of the Act, and any successor of any
other Underwriter, to the extent that, and upon the terms upon which, each
Underwriter will be obligated pursuant to the Underwriting Agreement to
indemnify, hold harmless and reimburse the Company, its directors,
officers, and controlling persons therein specified.
In the event that at any time any person other than an Underwriter
asserts a claim against one or more of the Underwriters or against you as
representatives of the Underwriters arising out of an alleged untrue
statement or omission in the Registration Statement (or any amendment
thereto) or in any Preliminary Prospectus or the Prospectus (or any
amendment or supplement thereto) or relating to any transaction
contemplated by this Agreement, we authorize you to make such
investigation, to retain such counsel for the Underwriters and to take
such action in the defense of such claim as you may deem necessary or
advisable. You may settle such claim with the approval of a majority in
interest (based upon underwriting obligations) of the Underwriters. We
will pay our proportionate share (based upon our underwriting obligation)
of all expenses incurred by you (including the fees and expenses of
counsel for the Underwriters) in investigating and defending against such
claim and our proportionate share of the aggregate liability incurred by
all Underwriters in respect of such claim (after deducting any
contribution or indemnification obtained pursuant to the Underwriting
Agreement, or otherwise, from persons other than Underwriters), whether
such liability is the result of a judgment against one or more of the
Underwriters or the result of any such settlement. There shall be
credited against any amount paid or payable by us pursuant to this
paragraph any loss, 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 as a result of any
such claim against us, and if such loss, claim, damage, liability, or
expense is incurred by us subsequent to any payment by us pursuant to this
Section, appropriate provision shall be made to effect such credit, by
refund or otherwise. Any Underwriter may retain separate counsel at its
own expense. A claim against or liability incurred by a person who
controls an Underwriter shall be deemed to have been made against or
incurred by such Underwriter. In the event of default by any Underwriter
in respect of its obligations under this Section, the non-defaulting
Underwriters shall be obligated to pay the full amount thereof in the
proportions that their respective underwriting obligations bear to the
underwriting obligations of all non-defaulting Underwriters, without
relieving such defaulting Underwriter of its liability hereunder. Our
agreements contained in this Section will remain in full force and effect
regardless of any investigation made by or on behalf of such other
Underwriter or controlling person and will survive the delivery of and
payment for the Shares and the termination of this Agreement and the
similar agreements entered into with the other Underwriters.
15. BLUE SKY AND OTHER MATTERS. You will not have any
responsibility with respect to the right of any Underwriter or other
person to sell the Shares in any jurisdiction notwithstanding any
information you may furnish in that connection. We authorize you to file
a New York Further State Notice, if required, and to make and carry out on
our behalf any agreements which you may deem necessary in order to procure
registration or qualification of any of the Shares in any jurisdiction,
and we will at your request make such payments, and furnish to you such
information, as you may deem required by reason of any such agreements.
We authorize you to file on behalf of the several Underwriters with
the National Association of Securities Dealers, Inc, (the "NASD") such
documents and information, if any, which are available or have been
furnished to you for filing pursuant to the applicable rules, statements,
and interpretations of the NASD.
16. TITLE TO SHARES. The Shares purchased by the respective
Underwriters shall remain the property of such Underwriters until sold and
no title to any such Shares shall in any event pass to you by virtue of
any of the provisions of this Agreement.
17. CAPITAL REQUIREMENTS. We confirm that the incurrence by us of
our obligations under this Agreement and under the Underwriting Agreement
will not place us in violation of Rule l5c3-l under the Exchange Act or of
any applicable rules relating to capital requirements of any securities
exchange or association to which we are subject.
18. LIABILITY FOR FUTURE CLAIMS. Neither any statement by you of
any credit or debit balance in our account nor any reservation from
distribution to cover possible additional expenses relating to the Shares
will constitute any representation by you as to the existence or
nonexistence of possible unforeseen expenses or liabilities of or charges
against the several Underwriters. Notwithstanding the distribution of any
net credit balance to us, we will be and remain liable for, and will pay
on demand, (a) our proportionate share (based upon our underwriting
obligation) 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.
19. ACKNOWLEDGMENT OF REGISTRATION STATEMENT, ETC. We hereby
confirm that we have examined the Registration Statement (including any
amendments or supplements thereto) and Prospectus relating to the Shares
filed with the Commission, that we are willing to accept the
responsibilities of an underwriter thereunder and that we are willing to
proceed as therein contemplated. We confirm that we have authorized you
to advise the Company on our behalf (a) as to the statements to be
included in any Preliminary Prospectus and in the Prospectus (including
any supplement thereto) relating to the Shares, insofar as they relate to
us, and (b) that there is no information about us required to be stated in
said Registration Statement or said Preliminary Prospectus or the
Prospectus (including any supplement thereto) other than as set forth in
the Underwriters' Questionnaire previously delivered by us to you and the
Company. 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 amended Prospectus
promptly, if and when received by you, but the making of such changes and
amendments will not release us or affect our obligations hereunder or
under the Underwriting Agreement.
20. NOTICES AND GOVERNING LAW. Any notice from you to us shall be
mailed, telephoned, or telegraphed to us at our address as set forth in
the Underwriters' Questionnaire. Any notice from us to you shall be
deemed to have been duly given if mailed, telephoned or facsimile to you
at 300 Plaza Level, 1675 Larimer Street, Denver, Colorado 80202,
Attention: Corporate Finance. This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado.
21. OTHER PROVISIONS. We represent that we are actually engaged in
the investment banking or securities business and that we are a member in
good standing of the NASD or, if we are not such a member, that we are a
foreign dealer not eligible for membership in the NASD and that we will
not offer or sell any Shares in, or to persons who are nationals or
residents of the United States of America. In making sales of Shares, if
we are such a member, we agree to comply with all applicable rules of the
NASD, including, without limitation, the Interpretation of Rule 2110 of
the NASD's Rules of Conduct with respect to Free-Riding and Withholding
(IM-2110-1) and Rule 2740 of such rules, or if we are a foreign dealer, we
agree to comply with such Interpretation and Rules 2730, 2740 and 2750 of
such Rules as though we were such a member, and with Rule 2420 as that
Rule applies to a non-member broker or dealer in a foreign country. We
confirm that you have heretofore delivered to us such number of copies of
the Prospectus as have been reasonably requested by us, and we further
confirm that we have complied and will comply with Rule 15c2-8 under the
Exchange Act concerning delivery of each Preliminary Prospectus and the
Prospectus, and that we will furnish to persons who receive a confirmation
of sale (i) a copy of the Prospectus filed pursuant to Rule 424(b) or Rule
424(c) under the Act or (ii) if a Term Sheet or Abbreviated Term Sheet is
used, a copy of the Term Sheet or Abbreviated Term Sheet and the last
Preliminary Prospectus filed with the Commission prior to the time the
Registration Statement became effective.
We are aware of our statutory responsibilities under the Act, and you are
authorized on our behalf to so advise the Commission.
22. COUNTERPARTS. This Agreement may be signed in any number of
counterparts which, taken together, shall constitute one and the same
instrument, and you may confirm the execution of such counterparts by
facsimile signature.
[Signature page follows]
Please confirm that the foregoing correctly states the understanding
between us by signing and returning to us a counterpart.
------------------------------------------
As Attorney-in-Fact for each of the several
Underwriters named in Schedule I to the
Underwriting Agreement
Confirmed as of the date first above written:
Neidiger, Tucker, Bruner, Inc.
As Representative of the Several
Underwriters
By:--------------------------------
Name:------------------------------
Title:-----------------------------