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EXHIBIT 1.3
AMERICAN PROFESSIONAL BILLIARDS, INC.
1,000,000 UNITS
AGREEMENT AMONG UNDERWRITERS
JOSEPH ROBERTS & CO., INC. ______________, 1996
416 East Atlantic Boulevard
Pompano Beach, Florida 33060
(As Representatives of the Underwriters named
in Schedule I to the Underwriting Agreement)
Ladies and 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
American Professional Billiards, Inc. ("the Company") of the respective numbers
of Units (hereinafter "the Units") set forth in Schedule I to the Underwriting
Agreement. The number of Units to be purchased by each Underwriter from the
Company shall be determined in accordance with the Underwriting Agreement. It is
understood that changes may be made in those who are to be Underwriters and in
the respective numbers of Units to be purchased by them, but that the number of
Units 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 Units
set opposite their respective names in Schedule I to the Underwriting Agreement,
as they may be increased by the Underwriting Agreement, are herein called their
"underwriting obligations." The number of Units set opposite our name in said
Schedule I, as such number may be increased under the Underwriting Agreement,
are herein called "our Units." 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 hereof of not less than __ percent (__%) of the
underwriting discount. The Manager's Concession shall include
the right to all the Purchase Option Units to be issued
pursuant to the Underwriting Agreement in addition to the
other items specified in Sections 3 and 5 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 _____ percent
(__%) of the underwriting discount on the Units for which each
Underwriter is obligated hereunder.
(c) "Dealer's Concession" shall mean
compensation to Dealers who are members of the Selling Group
and shall, as to Dealers who have
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executed an agreement with you, be not less than __ percent
(__%) of the underwriting discount.
(d) "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.
(e) 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 REPRESENTATIVE. We hereby
authorize you as our Representative 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 Units, 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).
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 Units 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 Units shall
be initially offered to the public at the public offering price of $8.00 per
Unit as determined by you and the Company. You will advise us by telegraph or
telephone when the Units 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 Representative 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 Units 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 of
1933. 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
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"Group Sales") and to dealers selected by you (such dealers being herein called
"Dealers") all or any part of our Units as you may determine. Such sales of
Units, 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 Units reserved for our account for offering to Dealers bears to
the aggregate of all Units of all Underwriters including you so reserved. The
over-allotment option provided for in Sections 1.01 and 3.01.01 of the
Underwriting Agreement to the extent exercised shall be exercised by you as
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 promptly on the date of the public
offering as to the number of Units, 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 Units remaining unsold theretofore retained by
us and we may, with your consent, retain any Units remaining unsold theretofore
reserved by you.
Sales to Dealers shall be made under a Selected Dealers
Agreement, attached hereto as Exhibit B 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 Units for sale at a price
below the Offering Price or allow any concession therefrom except as herein
otherwise provided. We as to our Units 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. ("NASD"), or dealers or institutions with their
principal place of business located outside 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 Units.
Nothing in this Agreement contained shall be deemed to
restrict our right, subject to the provisions of this Section 3, to offer our
Units 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
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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 Units sold by us
(otherwise than through you) which 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 securities delivered on such repurchase
need not be the identical securities originally sold by us. In lieu of delivery
of such securities to us, you may (i) sell such securities 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 securities.
5. DELIVERY AND PAYMENT. We agree to deliver to you at or
before 4:00 p.m. Central Time, on the Closing Date referred to in the
Underwriting Agreement, at your office, cash or a certified or bank cashier's
check payable to the order of Joseph Roberts & Co., Inc. for the offering price
of the Units less Dealer's Concession of the Units 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 Agreement, to or for the account of the Company
against delivery of certificates for such Units to you for our account. You are
authorized to accept such delivery and to give receipts therefor. You may
advance funds for Units 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 Units
which we have agreed to purchase, you, individually and not as Representative 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 Units 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 Units purchased by you for our
account pursuant to the provisions of Section 9 hereof, and to deliver to you on
demand any Units sold or over-allocated by you for our account pursuant to any
provision of this Agreement.
We authorize you to deliver our Units, 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 Units, 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 Units, which has not been retained
by us. 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
Units purchased on such Closing Date as shall not have been sold or reserved for
sale by you for our account.
In case any Units 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
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Units 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 Units purchased hereunder for
our account. Any lending bank is hereby authorized to accept your instructions
as Representative in all matters relating to such loans. Any part of our Units
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 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 Units 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 hand 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. Notwithstanding any settlement, we will remain liable for
any taxes on transfers for our account and for our proportionate share (based on
our underwriting obligation) of all expenses and liabilities that may be
incurred for the accounts of the 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 Units 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 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 AND OVER-ALLOTMENT. We authorize you, until
the termination of this Agreement, (a) to make purchases and sales of the Units
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 Units, to over-allot, and (c) either before or
after the
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termination of this Agreement, to cover any short position or liquidate any long
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, for either long or short
account, 15% of the number of Units agreed to be purchased by us. We agree to
take up at cost on demand any Units purchased for our account pursuant to this
Section 9, and to deliver on demand any of such Units so sold or over-allotted
for our account pursuant to this Section 9.
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 two 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.
We agree to advise you, from time to time upon request until
the settlement of accounts hereunder, of the number of Units 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 Units 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 Units,
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 Units have been
qualified or are exempt from such qualification 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 Units in any jurisdiction. We
authorize you, if you deem it inadvisable in arranging sales of Units of our
account hereunder to sell any of our Units to any particular Dealer or other
buyer because of the securities or Blue Sky laws of any jurisdiction, to sell
our Units 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.
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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
non-defaulting Underwriters, the number of Units 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 Units,
and, if the aggregate number of the Units 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 Units not taken up by such Underwriters.
In the event any such increases or arrangements are made, the respective number
of Units 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 Units
purchased by you for their respective accounts pursuant to Section 9 hereof, or
to deliver any such Units 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. 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 45 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 30 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 Units, 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 Units 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 Units 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
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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 Units as heretofore filed with the
Securities and Exchange Commission, that we are familiar with the amendments to
the Registration Statement and the final form of Prospectus proposed to be
filed, that we are willing to be named as an Underwriter therein and 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 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 commitments
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 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 Units we may be obligated to purchase under any provision of the
Underwriting Agreement or this Agreement.
18. UNDERTAKING TO MAIL PROSPECTUSES. We represent to you that
we have taken all action on our part required to have been taken to satisfy the
policy set forth in release No. 4968 of the Securities and Exchange Commission
under the Securities Exchange Act of 1933, including the distribution in the
manner and at or prior to the time set forth in such release, of copies of the
Preliminary Prospectus relating to the Stock (or, if you have so requested,
copies of any revised Preliminary Prospectus) to all persons to whom we expect
to mail confirmation of sale.
As contemplated by rule 15c2-8 under the Securities Exchange
Act of 1934, you agree to mail a copy of the Prospectus mentioned in the
Underwriting Agreement to any person making a written request therefor during
the period referred to in said rule, the mailing to be made to the address given
in the request. We confirm that we have delivered all Preliminary Prospectuses
and revised Preliminary Prospectuses, if any, required to be delivered under the
provisions of rule 15c2-8 and agree to deliver all Prospectuses required to be
delivered thereunder. We acknowledge that the copies of the Preliminary
Prospectus furnished to us have been distributed to dealers who have been
notified of the foregoing
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requirements pertaining to the delivery of Preliminary Prospectuses and
Prospectuses. You have heretofore delivered to us such number of copies of
Preliminary Prospectuses as have been reasonably requested by us, receipt of
which is hereby acknowledged, and will deliver such number of copies of
Prospectuses as will be reasonably requested by us.
19. MISCELLANEOUS. Any notice hereunder from us to you shall
be deemed to have been duly given if sent by registered mail, telegram or
teletype, to us at our address as set forth in the Underwriting Agreement, or to
you at 416 East Atlantic Boulevard, Pompano Beach, Florida 33060.
You hereby confirm that you are registered as broker-dealers
with the United States Securities and Exchange Commission and that you are
members of the National Association of Securities Dealers, Inc., as we confirm
that we are either a member of such Association or a foreign broker-dealer not
eligible for membership under Section I of the By-Laws of the Association who
agree to make no sales within the United States, its territories or possessions
or to persons who are national thereof or residents therein and, in making
sales, to comply with the requirements of the Association's Interpretation with
Respect to Free Riding and Withholding.
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 at such time as all the
Underwriters shall have signed such counterparts and you shall have confirmed
all such counterparts. Your signature to such confirmation may be facsimile.
Please confirm that the foregoing correctly states the
understanding between us by signing and returning to us a counterpart hereof.
Very truly yours,
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By: ________________________________
Authorized Officer or Partner
Confirmed as of the date first above written.
JOSEPH ROBERTS & CO., INC.
AS REPRESENTATIVE
By: ____________________________
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