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EXHIBIT 1.2
BIRMAN MANAGED CARE, INC.
1,550,000 UNITS
AGREEMENT AMONG UNDERWRITERS
, 1996
W.B. McKee Securities, Inc.
3003 North Central Avenue, Ste. 100
Phoenix, AZ 85012
(As Representative of the several
Underwriters Named in Schedule I
to Exhibit A annexed hereto)
Gentlemen:
We understand that Birman Managed Care, Inc. a Delaware corporation (the
"Company"), desires to enter into an agreement, substantially in the form of
Exhibit A hereto (the "Underwriting Agreement"). The Underwriting Agreement
provides for the sale by the Company to you and the other prospective
Underwriters named in Schedule I to the Underwriting Agreement, severally and
not jointly, of an aggregate of 1,550,000 units (the "Firm Units") consisting of
one share of common stock ("Common Stock") of the Company and one redeemable
common stock purchase warrant ("Warrant"). In addition, the Company, pursuant to
the Underwriting Agreement, will grant to the Underwriters an option to purchase
up to an additional 232,500 Units underwritten (the "Option Units") for the
purpose of covering over-allotments in connection with the sale of the Firm
Units. The Firm Units and any Option Units purchased pursuant to the
Underwriting Agreement are herein called the "Units."
We understand that changes may be made in those who are to be Underwriters
and in the respective number of Units to be purchased by them, but that the
number of Units to be purchased by us as set forth in said Schedule I will not
be changed without our consent except as provided herein or in the Underwriting
Agreement. The parties on whose behalf you execute the Underwriting Agreement
are herein called the "Underwriters."
We desire to confirm the agreement among you, the undersigned and the other
Underwriters with respect to the purchase of the Units by the Underwriters,
severally and not jointly, from the Company. The aggregate number of Units which
any Underwriter will be obligated to purchase from the Company pursuant to the
terms of the Underwriting Agreement is herein called the "Underwriting
Obligation" of that Underwriter.
1. Authority and Compensation of Representative. We hereby authorize you, as
our representative (the "Representative") and on our behalf, (a) to enter into
an agreement with the Company, in substantially the form attached hereto as
Exhibit A, but with such changes therein as in your judgement will not be
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, (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
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Underwriting Agreement and of this Agreement, and the sale and distribution of
the Units and (d) to determine all matters relating to the public advertisement
of the Units. We authorize you, in executing the Underwriting Agreement on our
behalf, to set forth in Schedule I of the Underwriting Agreement as our
commitment to purchase the number of Units (which shall not be substantially in
excess of the number of Units included in your invitation to participate unless
we have agreed otherwise) included in a wire, telex, or similar means of
communication transmitted by you to us at least 24 hours prior to the
commencement of the offering as our finalized underwriting obligation.
As our share of the compensation, you have agreed to pay us $ per share,
with no expenses allowed, in respect of the aggregate number of Firm Units and
Option Units, respectively, which we shall agree to purchase pursuant to the
Underwriting Agreement.
2. Public Offering of Units. A public offering of the Units is to be made,
as herein provided, as soon after the Registration Statement relating hereto
becomes effective as in your judgement is advisable. The Units shall be
initially offered to the public at the public offering price of $ per unit as
determined by you and the Company. You will advise us by telegraph, facsimile or
telephone when the Units shall be released for offering, when the registration
statement relating to the Units shall become effective and the price at which
the Units is initially to be offered. We authorize you as Representative of the
Underwriters after the initial public offering, to change the public offering
price, the concession and the re-allowance if, in your sole discretion, such
action becomes desirable by reason of changes in general market conditions or
otherwise. The public offering price at the time in effect is herein called the
"Offering Price." After notice from you that the Units are released for public
sale, we will offer to the public in conformity with the provisions hereof and
with the terms of offering set forth in the Prospectus such Units as you advise
us are not reserved. We agree not to offer or sell any of the Units to persons
over whose accounts we exercise investment discretion without their specific
advance consent.
We hereby agree to deliver all preliminary and final prospectuses required
for compliance with the provisions of Rule 15c2-8 under the Securities Exchange
Act of 1934 and Section 5(b) of the Securities Act. You have heretofore
delivered to us such preliminary prospectuses as have been requested by us,
receipt of which is hereby acknowledged, and will deliver such final
Prospectuses as will be requested by us.
3. Offering to Dealers and Retail Sales. We authorize you to reserve for
offering and sale, and on our behalf to sell to retail purchasers (such sales
being herein called "Retail Sales") and to dealers selected by you (such
dealers, among whom any Underwriter may be included, being herein called
"Selected Dealers") all or any part of our Units as you, in your sole
discretion, shall determine. Such sales, if any, shall be made (a) in the case
of Retail Sales, at the Offering Price, and (b) in the case of sales to Selected
Dealers at the Offering Price less such concession or concessions as you, in
your sole discretion, shall determine.
Any Retail Sales shall be as nearly as practicable in proportion to the
underwriting obligations of the respective Underwriters. Any sales to Selected
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
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so reserved. The over-allotment option to the extent exercised, shall be
exercised by you as a Representative of the Underwriters, and shall be exercised
only for the purpose of making Retail Sales or sales to Selected 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 Retail Sales or sales to Selected Dealers, including those
pertaining to the overallotment option, made by you on our behalf we shall be
entitled to receive only the Underwriter's concession.
We agree that, from time to time prior to the termination of the provisions
referred to in Section 13 hereof, we shall furnish to you such information as
you may request in order to determine the number of Units purchased by us under
the Underwriting Agreement which then remain unsold, and we shall upon your
request sell to you for the account of any Underwriter as many of such unsold
Units as you may designate at the Offering Price, less all or any part of the
concession to Selected Dealers as you, in your sole discretion, shall determine.
The provisions of Section 4 hereof shall not be applicable in respect of any
such sale.
We authorize you to determine the form and manner of any communications or
agreements with the Selected Dealers. In the event that there shall be any
agreements with Selected Dealers, you are authorized to act as manager
thereunder and we agree, in such event, to be governed by the terms and
conditions of such agreements. The form of Selected Dealer Agreement attached
hereto as Exhibit B is satisfactory to us. Sales to Dealers shall be made under
a Selected Dealers Agreement, attached hereto as Exhibit B, attached hereto and
by this reference incorporated herein. 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 Selected Dealer to whom an offer may be made as
hereinbefore provided shall be actually engaged in the investment banking or
securities business and shall be either (a) a member in good standing of the
National Association of Securities Dealers, Inc. (the "NASD") or (b) a dealer
with its principal place of business located outside the United States, its
territories and its possessions and not registered as a broker or dealer under
the Securities Exchange Act of 1934, as amended (the "1934 Act"), who agrees not
to make any sales within the United States, its territories or its possessions
or to persons who are nationals thereof or residents therein. Each Selected
Dealer shall agree to comply with the provisions of Section 24 of Article III of
the Rules of Fair Practice of the NASD, and each foreign Selected Dealer who is
not a member of the NASD also shall agree to comply with the NASD's
interpretation with respect to free-riding and withholding, to comply, as though
it were a member of the NASD, with the provisions of Sections 8 and 36 of
Article III of such Rules of Fair Practice, and to comply with Section 25 of
Article III thereof as that Section applies to a non-member foreign dealer. The
several Underwriters may allow, and the Selected Dealers, if any, may re-allow
such concession or concessions as you may determine from time to time on sales
of Units to any qualified dealer, all subject to the Rules of Fair Practice of
the NASD.
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We authorize you to determine the form and manner of any public advertisement of
the Units.
Nothing contained in this Agreement 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 Securities Act of
1933 (the "1933 Act") and the 1934 Act 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, Common Stock or Warrants 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 Units, Common Stock or Warrants
delivered on such repurchase need not be the identical Units, Common Stock or
Warrants originally sold by us. In lieu of delivery of such Units, Common Stock
or Warrants to us, you may sell such Units, Common Stock or Warrants 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 charge our account with an amount not in excess of the concession to
Selected Dealers.
5. Delivery and Payment. We agree to deliver to you at or before 6:00 a.m.
Arizona time on the Closing Date referred to in the Underwriting Agreement
payment for the Units to be purchased by us under the Underwriting Agreement in
an amount equal to the Offering Price for such Units less the concession to
Selected Dealers for Units which we retained for direct sale by us, against
delivery of certificates for the Units for our account hereunder. If we are a
member of or clear through a member of The Depository Trust Company ("DTC"), you
may, in your discretion, deliver our Units through the facilities of DTC.
You shall remit to us, as promptly as practicable, the amounts received
by you from Selected Dealers and retail purchasers as payment in respect of
Units sold by you for our account pursuant to Section 3 hereof for which payment
has been received. Units purchased by us under the Underwriting Agreement and
not reserved or sold by you for our account pursuant to Section 3 hereof shall
be delivered to us as promptly as practicable after receipt by you. Any Units
purchased by us and so reserved which remains unsold at any time prior to the
settlement of accounts hereunder may, in your discretion, and shall, upon your
request, be delivered to us, but, until termination of the first three
paragraphs of Section 7 of the Selected Dealer Agreements pursuant to Section 8
thereof and of other selling arrangements, such delivery shall be for carrying
purposes only. In case any Units reserved for sales in Retail Sales or to
Selected Dealers shall not be purchased and paid for in due course as
contemplated hereby, we agree (a) to accept delivery when tendered by you of any
Units so reserved for our account and not so purchased and paid for, and (b) in
case we shall have received payment from you in respect of any such Units, to
reimburse you on demand for the full amount which you shall have paid us in
respect for such Units.
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In the event of our failure to tender payment for Units as provided in the
Underwriting Agreement, you shall have the right under the provisions thereof to
arrange for other persons, who may include you and any other Underwriter, to
purchase such Units which we had agreed to purchase, but without relieving us
from liability for our default.
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
or the account of the Underwriters 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 or other Units purchased hereunder for our account. Any lender is hereby
authorized to accept your instructions in all matters relating to such loans.
Any part of our Units or of such other Units so 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 Expenses 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 Obligation) of all expenses incurred by you in
connection with the purchase, carrying, sale 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. You may at any time make partial distributions of
credit balances or call for payment of debit balances. Funds for our account at
any time in your hands 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 may establish such reserves as you, in your sole discretion, shall deem
advisable 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 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
Obligation) of all expenses and liabilities which may be incurred by or for the
accounts of the Underwriters, or any of them, including any liability which may
be incurred by or for the accounts of 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 (a) to make purchases
and sales of Units, Common Stock and Warrants in the open market or otherwise,
for long or short
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account, and on such terms and at such prices as you, in your sole discretion,
shall deem advisable, (b) in arranging for sales of the Units, to over-allot,
and (c) either before or after the 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 (the "Commission") under the 1934 Act. 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; provided, however, that our net position resulting
from such purchases and sales and over-allotments shall not at the time of each
such purchase or sale or over-allotment exceed, for either long or short
account, 15% of the aggregate amount which we shall become obligated to pay in
respect of the total number of Firm Units and Option Units purchased for our
account.
If you engage in any stabilizing transactions as Representative of the
Underwriters, you shall notify us of that fact. Each of us agrees to file with
you, within five business days following the date of termination of such
transactions, triplicate originals of a report "not as manager" on Form X-17A-1
in accordance with the requirements of Rule 17a-2(e) under the Securities
Exchange Act of 1934. You shall, as such Representative, file such reports with,
and make the requisite reports on such transactions as required by, the
Securities and Exchange Commission in accordance with Rule 17a-2 under the 1934
Act.
10. Open Market Transactions. We agree that we will not make bids or offers,
or make or induce purchases or sales for our own account or the accounts of
customers, in the open market or otherwise, either before or after the purchase
of the Units and for either long or short account, of any shares of Common Stock
or any security of the same class and series, or any right to purchase any such
security except: (a) as provided in this Agreement, the Underwriting Agreement
and the Selected Dealer Agreements or otherwise approved by you, (b) in
brokerage transactions not involving solicitation of the customer's order and
(c) in connection with option and option-related transactions that are
consistent with the "no-action" position set forth in Release No. 17609, as
amended in Release No. 19565, of the Commission under the 1934 Act. We further
agree that we will not lend, either before or after the purchase of the Units,
to any customer, Underwriter, Selected Dealer or to any other securities broker
or dealer any shares of Common Stock. Prior to the completion (as defined in
Rule 10b-6 under the 1934 Act) of our participation in the distribution, we will
otherwise comply with Rule 10b-6.
11. Blue Sky. Prior to the initial offering by the Underwriters, you will
inform us as to the states and other jurisdictions under the respective
securities or blue sky laws of which it is believed that the Units have been
qualified for sale or is exempt from such qualification, 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 offer or sell the Units in any state
or other jurisdiction.
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 the event 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
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shall be obligated to purchase from the Company; provided, however, that the
aggregate amount of all such increases for all non-defaulting Underwriters shall
not exceed 10% of the Units and, if the aggregate amount 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 you and other non-defaulting Underwriters, 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 amounts of the 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 Underwriter's obligations under this Agreement, but
this shall not in any way affect the liability of any defaulting Underwriter 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 Units sold or over-alloted by you for their respective accounts pursuant to
any provision 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
Section 2, 3, 4, 6, 9 and 10 of this Agreement shall, except as otherwise
provided herein, terminate thirty full business days after the effective date
of the Registration Statement herein referred to, but may be extended by you
for an additional period or periods not exceeding thirty full business days in
the aggregate. You may, however, terminate this Agreement or any provisions
hereof at any time by written or telegraphic notice to us.
14. General Position of the Representative. In taking action under this
Agreement, you shall act only as agent of the several Underwriters. Your
authority 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 Selected 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 or agreements or
other instruments executed by the Company or others; or for or in respect of the
delivery of the Units; or for the performance by the Company or others of any
agreement on its or their part; nor shall you as 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
1933 Act; and only obligations expressly assumed by you as Representative herein
shall be implied from this Agreement. In representing the Underwriters
hereunder, you shall act as 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 and in
Section 7 of the Underwriting Agreement. If the Underwriters shall be deemed to
constitute a partnership for Federal income tax purposes, it is the intent of
each Underwriter to be excluded from the application
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of Subchapter x, Chapter 1, Subtitle A, of the Internal Revenue Code of 1986, as
amended. Each Underwriter elects to be so excluded and agrees not to take any
position inconsistent with such election. Each Underwriter authorizes you, in
your discretion, to execute and file on behalf of the Underwriters such evidence
of election as may be required by the Internal Revenue Service. The commitments
and liabilities of each of the several Underwriters are several in accordance
with their respective Underwriting Obligations and are not joint.
15. Acknowledgement of Receipt of Registration Statement, etc. We hereby
confirm that we have examined the Registration Statement relating to the Units
as heretofore filed by the Company with the Commission and each amendment
thereto, if any, filed through the date hereof, including any documents filed
under the 1934 Act through the date hereof and incorporated by reference into
the Prospectus, 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 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 under the heading
"Underwriting" insofar as they relate to us, and (b) that there is no other
information about us required to be stated in the Registration Statement or
Prospectus. We understand that the aforementioned documents are subject to
further change and that we will be supplied with copies of any further
amendments or supplements to the Registration Statement, of any document filed
under the 1934 Act after the effective date of the Registration Statement and
before termination of the offering of the Units by the Underwriters if such
document is deemed to be incorporated by reference into the Prospectus and of
any amended or supplemented Prospectus promptly, if and when received by you,
but the making of such changes, amendments and supplements shall not release us
or affect our obligations hereunder or under the Underwriting Agreement.
16. Indemnity. We agree to indemnify and hold harmless each other
Underwriter and any person who controls any such Underwriter within the meaning
of Section 15 of the 1933 Act, to the extent that, and upon the terms on which,
we agree to indemnify and hold harmless the Company and other specified persons
as set forth in the Underwriting Agreement. Our indemnity agreement contained in
this Section 16 shall remain in full force and effect regardless of any
investigation made by or on behalf of such other Underwriter or controlling
person and shall survive the delivery of and payment for the Units and the
termination of this Agreement and the similar agreements entered into with the
other Underwriters.
Each Underwriter (including you) will pay, upon your request, as
contribution, its proportionate share, based upon its Underwriting Obligation,
of any loss, claim damage or liability, joint or several, paid or incurred by
any Underwriter (including you) to any person other than an Underwriter, arising
out of or based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, the Prospectus, any
amendment or supplement thereto or any preliminary Prospectus or any other
selling or advertising material approved by you for use by the Underwriters in
connection with the sale of the Units, or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading (other than an untrue statement or alleged
untrue statement or omission or alleged omission made in
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conformity with written information furnished to the Company through you by or
on behalf of an Underwriter expressly for use therein) or relating to any
transaction contemplated by this Agreement; and will pay such proportionate
share of any legal or other expense reasonably incurred by you or with your
consent in connection with investigating or defending against any such loss,
claim, damage or liability, or any action in respect thereof. In determining the
amount of our obligation under this paragraph, appropriate adjustment may be
made by you to reflect any amounts received by any one or more Underwriters in
respect of such claim from the Company pursuant to Section 6 of the Underwriting
Agreement or otherwise. There shall be credited against any amount paid or
payable by us pursuant to this paragraph 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
subsegment to any payment by us pursuant to this paragraph, appropriate
provision shall be made to effect such credit, by refund or otherwise. If any
such claim is asserted, you may take such action in connection therewith as you
deem necessary or desirable, including retention of counsel for the
Underwriters, and in your discretion separate counsel for any particular
Underwriter or group of Underwriters, and the fees and disbursements of any
counsel so retained by you shall be included in the amounts payable pursuant to
this paragraph. In determining amounts payable pursuant to this paragraph, any
loss, claim, damage, liability or expense incurred by any person who controls
any Underwriter within the meaning of Section 15 of the 1933 Act which has been
incurred by reason of such control relationship shall be deemed to have been
incurred by such Underwriter. Any Underwriter may elect to retain, at its own
expense, its own counsel. You may settle or consent to the settlement of any
such claim on advice of counsel retained by you. Whenever you receive notice of
the assertion of any claim to which the provisions of this paragraph would be
applicable, you will give prompt notice thereof to each Underwriter. If any
Underwriter or Underwriters defaults in its or their obligation to make any
payments under this paragraph, each non-defaulting Underwriter shall be
obligated to pay its proportionate share of all defaulted payments, based upon
the proportion such non-defaulting Underwriter's Underwriting Obligation bears
to the Underwriting Obligations of all non-defaulting Underwriters. Nothing
therein shall relieve a defaulting Underwriter from liability for its default.
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 the net capital requirements of Rule 15c3-1 under the
1934 Act or of any applicable rules relating to capital requirements of any
securities exchange to which we are subject.
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 Commission under the 1933 Act, 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 Units (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 1934 Act, 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
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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 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. We have transmitted herewith a completed Underwriters'
Questionnaire on the form thereof supplied by you. Any notice hereunder from you
to us or from us to you shall be deemed to have been duly given if sent by
registered mail, telegram or teletype, to us at our address as set forth in our
Underwriters' Questionnaire previously delivered to you, or to you at W.B. McKee
Securities, Inc., 3003 North Central Ave., Ste. 100, Phoenix, Arizona 85012,
Attention: Mrs. Julie J. Cincera, Managing Director, Corporate Finance.
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 are either (a) a member in good standing of the NASD or (b) a
dealer with its principal place of business located outside the United States,
its territories and its possessions and not registered as a broker or dealer
under the 1934 Act who agrees not to make any sales within the United States,
its territories or its possessions or to persons who are nationals thereof or
residents therein (except that we may participate in sales to Selected Dealers
and others under Section 3 of this Agreement). We hereby agree to comply with
the provisions of Section 24 of Article III of the Rules of Fair Practice of the
NASD, and, if we are a foreign dealer and not a member of the NASD, we also
hereby agree to comply with the NASD's interpretation with respect to
free-riding and withholding and to comply, as though we were a member of the
NASD, with the provisions of Sections 8 and 36 of Article III of such Rules of
Fair Practice, and to comply with Section 25 of Article III thereof as that
Section applies to a non-member foreign dealer. In connection with sales and
offers to sell Units made by us outside the United States, its territories and
possessions (i) we will either furnish to each person to whom any such sale or
offer is made a copy of the then current Preliminary Prospectus or the
Prospectus, as the case may be, or inform such person that such Preliminary
Prospectus or Prospectus will be available upon request, and (ii) we will
furnish to each person to whom any such sale or offer is made such prospectus,
advertisement or other offering document containing information relating to the
Units or the Company as may be required under the law of the jurisdiction in
which such sale or offer is made. Any prospectus, advertisement or other
offering document furnished by us to any person in accordance with the preceding
sentence and any such addition offering material as we may furnish to any person
(x) shall comply in all respects with the law of the jurisdiction in which it is
so furnished, (y) shall be prepared and so furnished at our sole risk and
expense and (z) shall not contain information relating to the Units or the
Company which is inconsistent in any respect with the information contained in
the then current Preliminary Prospectus or in the Prospectus, as the case may
be.
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This instrument may be signed by or on behalf of the Underwriters in one or
more counterparts each of which shall constitute an original and all of 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 or have had signed on their behalf such counterparts and you shall have
confirmed all such counterparts. You may confirm such counterparts by facsimile
signature.
This Agreement shall be governed by and construed in accordance with the
laws of the State of Arizona without giving effect to the choice of law or
conflicts of laws principles thereof.
Please confirm that the foregoing correctly states the understanding between
us by signing and returning to us a counterpart hereof.
Very truly yours,
/s/
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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:
W.B. McKee Securities, Inc.
As Representative
By:
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