Public Offering of
1,000,000 Shares Common Stock
ACCELR8 TECHNOLOGY CORPORATION
AGREEMENT AMONG UNDERWRITERS
, 1996
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JANCO PARTNERS, INC.
As Representative of the Several Underwriters
5251 DTC Parkway, Suite 1010
Englewood, Colorado 80111
Ladies and Gentlemen:
1. Underwriting Agreement. We understand that Accelr8 Technology
Corporation, a Colorado corporation (the "Company"), and certain shareholders of
the Company (the "Selling Shareholders") propose to enter into an Underwriting
Agreement substantially in the form attached hereto as Exhibit A (the
"Underwriting Agreement") with you and other prospective underwriters, including
ourselves (the "Underwriters"), acting severally and not jointly, providing for
(a) the purchase by the Underwriters from the Company of an aggregate of
1,000,000 shares of the Common Stock, no par value (the "Common Stock"), of the
Company (the "Firm Shares") and (b) the grant by the Selling Shareholders to the
Underwriters of options to purchase up to an additional 150,000 shares of such
Common Stock (the "Option Shares"), for the purpose of covering over-allotments
in the sale of the Firm Shares, upon the conditions in the Underwriting
Agreement in which we agree, in accordance with the terms thereof and subject to
adjustment pursuant to Section 7 thereof, to purchase the number of Firm Shares
set forth opposite our name in Schedule I thereof and our pro rata portion of
the number of Option Shares with respect to which the over-allotment option has
been exercised. The Firm Shares and the Option Shares so purchased are
hereinafter referred to as the "Shares." The offering of the Shares to the
public in the manner contemplated by the Underwriting Agreement is referred to
herein as the "Public Offering."
2. Registration Statement and Prospectus. The Shares are more particularly
described in the registration statement relating thereto filed with the
Securities and Exchange Commission under the Securities Act of 1933, as amended
(the "Act"). Amendments to such registration statement have been or may be
filed, in which, with our consent hereby confirmed, we have been or will be
named as one of the Underwriters of the Shares. Copies of the registration
statement and the related preliminary prospectus have heretofore been delivered
to us, and we confirm that they are correct insofar as they relate to us. Janco
Partners, Inc. ("Janco") is authorized to approve on our behalf any amendments
to the registration statement or any supplements thereto that Janco considers
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necessary or appropriate and no such amendment or supplement shall release or
affect our obligations hereunder or under the Underwriting Agreement. The
registration statement and related prospectus, as amended and supplemented from
time to time, are hereinafter respectively referred to as the "Registration
Statement" and the "Prospectus." We agree if you so request, to furnish a copy
of any revised preliminary prospectus to each person to whom we have delivered a
copy of any previous preliminary prospectus, and further represent that we have
delivered all preliminary prospectuses and agree that we will deliver all final
prospectuses required for compliance with the provisions of Rule 15c2-8 of the
General Rules and Regulations under the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
3. Authority of Janco. We authorize Janco (a) to execute and deliver on our
behalf the Underwriting Agreement substantially in the form attached hereto,
with such changes as in Janco's judgment are advisable, including changes in
those who are to be Underwriters and in the respective number of Firm Shares to
be purchased by it (but not any change in the number of Firm Shares to be
purchased by us except with our consent or as provided in the Underwriting
Agreement); (b) to act as our representative in all matters concerning the
Underwriting Agreement, this Agreement and the sale and distribution of the
Shares thereunder, (c) to exercise all authority vested in the Underwriters or
the Representative by the Underwriting Agreement, and (d) to take such action as
you in your discretion may deem 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, including, without
limitation, (i) the purchase, carrying, sale and distribution of the Shares; and
(ii) the determination of whether to purchase any or all of the Option Shares
for the accounts of the several Underwriters.
4. Public Offering. We authorize you to supply the Company with information
to be included in the Registration Statement and Prospectus with respect to the
terms of the offering, to determine the time of the public offering after the
Registration Statement becomes effective, to vary the public offering price of
the Shares and the concessions and discounts to Dealers (as defined herein) and
other terms of sale hereunder and under the agreements with Dealers after the
Shares are released for sale to the public, and to determine all matters
relating to the advertisement of the Shares and communication with dealers or
others.
We authorize you, with respect to any Shares that we so agree to purchase,
to reserve for sale and to sell for our account such number of our Shares as you
shall determine to retail purchasers and to securities dealers ("Dealers")
selected by you, including any of the Underwriters, under agreements
substantially in the form attached hereto as Exhibit B (the "Selected Dealer
Agreement"), and we authorize Janco to fix the concessions and reallowances in
connection with any such sales to Dealers. Such concessions and reallowances may
be allowed only as consideration for services rendered in connection with the
sale and distribution of the Shares and in accordance with the form of Selected
Dealers Agreement annexed hereto. Sales to such retail purchasers shall be made
at the public offering price.
Except for sales for the accounts of Underwriters designated by a
purchaser, aggregate sales of reserved Shares to retail purchasers will be made
at the public offering price for the accounts of the several Underwriters as
nearly as practicable in proportion to their respective underwriting
obligations. Sales of reserved Shares to Dealers will be made at the public
offering price less the Dealers' concession for the accounts of the several
Underwriters in such proportion as you determine.
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You may in your discretion sell to another Underwriter any of the Shares so
reserved for our account if you determine that such sales were advisable for
Blue Sky purposes. The transfer tax on any such sales shall be charged to the
accounts of the several Underwriters in proportion to their respective
underwriting obligations.
At or prior to the time when the Shares are released for sale, you will
advise us of the number of Shares so sold or reserved for sale for our account.
We will retain for direct sale any Shares purchased by us and not sold or
reserved for sale for our account. With the consent of Janco, we may obtain
release from you for direct sale of Shares reserved for sale to Dealers but not
sold and paid for, in which event the number of Shares reserved for our account
for sale to Dealers shall be correspondingly reduced. After advice from you that
the Shares are released for sale to the public, we will offer for sale 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 sold or reserved for sale for our
account.
We will advise Janco, from time to time, at Janco's request, of the number
of Shares retained by us remaining unsold. You may at any time (a) reserve any
of such Shares for sale by you for our account or (b) purchase any of such
Shares which, in your opinion, are needed to enable you to make deliveries for
the accounts of several Underwriters pursuant to this Agreement. Such purchases
will be made at the public offering price or, at the option of Janco at such
price less any part of the Dealers' concession.
In respect of any Shares sold directly by us and thereafter purchased by
you at or below the initial public offering price prior to the termination of
this Agreement (or such longer period as may be necessary to cover any short
position with respect to the Public Offering), you may charge our account with
an amount equal to the Dealers' concession with respect thereto and credit such
amount against the cost thereof, or you may require us to purchase such Shares
at a price equal to the total cost thereof, including any commissions and
transfer taxes on redelivery.
You are authorized to purchase Shares for our account from Dealers at the
public offering price less a concession not exceeding the concession to Dealers.
5. Payment and Delivery. On notice from Janco we will deliver to Janco, in
such form and at such time and place as Janco shall direct, funds in an amount
equal to the full purchase price of the Shares, less the Dealer's concession,
that we are obligated to purchase pursuant to the Underwriting Agreement. We
authorize Janco to deliver such funds to the Company or the Selling
Shareholders, as the case may be, against delivery to you for our account of the
Shares purchased by us. Such payment will be credited to our account.
In the event that our funds are not received by the Janco when required,
you are authorized, in your individual capacity or as our Representative, but
shall not be obligated to, make payment pursuant to the Underwriting Agreement
for our account in accordance with the provisions of Section 6 hereof. Any such
payment by you shall not relieve us from any of our obligations hereunder or
under the Underwriting Agreement and we will reimburse you on request.
We authorize you to hold and deliver to Dealers and others, against
payment, our Shares reserved by you for offering to them. Upon receiving payment
for Shares so sold for our account, Janco will remit to us as promptly as
practicable an amount equal to the purchase price paid by us for such Shares (if
any) and debit or credit, as appropriate, our account with the difference
between the sales price and such purchase price.
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You will promptly deliver to us any Shares purchased by us and not sold or
reserved for sale by you. All other shares which you then hold for our account
will be delivered to us upon termination of the provisions referred to in the
first paragraph of Section 12 hereof or prior thereto in the discretion of Janco
and may at any time be delivered to us for carrying purposes only, subject to
redelivery upon demand, except that upon termination of the aforementioned
provisions, if the aggregate of all such reserved and unsold Shares of all
Underwriters does not exceed 10% of the total number of Shares, you are
authorized in your discretion to sell such Shares for the accounts of the
several Underwriters at such price as you may determine.
6. Authority to Borrow. In connection with the purchase or carrying for our
account of any Shares purchased for our account under this Agreement or the
Underwriting Agreement, we authorize you, in your discretion, in your individual
capacity, to advance your own funds for our account (in which event we will
reimburse you on request), charging current interest rates, and as our
Representative to arrange and make loans on our behalf and for our account, and
to execute and deliver any notes or other instruments and hold or pledge as
security any of our Shares as may be necessary or advisable in your discretion.
Any lending bank is hereby authorized to rely upon your instructions in all
matters relating to any such loan. We shall be paid or credited with the
proceeds of any such advance or loan made for our account and shall be debited
with any repayment.
You may deliver to us from time to time, for carrying purposes only, any of
our reserved Shares held by you for our account that have not been sold or paid
for. We will redeliver to you on demand any Shares so delivered to us for
carrying purposes.
If we are a member of The Depository Trust Company or any other depository
or similar facility, you are authorized to make appropriate arrangements for
payment for and/or delivery through its facilities of the Shares to be purchased
by us, or, if we are not a member, settlement may be made through a
correspondent that is a member pursuant to timely instructions to you.
7. Stabilization. We ratify and confirm your stabilization transactions, if
any, for the accounts of the several Underwriters prior to the date hereof, and
we authorize you, in your discretion, to buy and sell shares of Common Stock of
the Company in the open market or otherwise, on a when issued basis or
otherwise, for either long or short account, at such prices and on such terms as
you may determine and to over-allot in arranging for the sale of the Shares and
to make purchases for the purpose of covering any over-allotment so made. We
authorize you in your discretion to cover any short position incurred for the
accounting of the several Underwriters pursuant to this Section by exercising
the over-allotment option referred to in Section 3 of the Underwriting Agreement
and by buying shares of Common Stock of the Company and, in lieu of delivering
to the several Underwriters any of such Shares held for their respective
accounts pursuant to this Section, to sell such Shares for the accounts of each
of the Underwriters, in each case at such prices and on such terms as you may
determine. All such purchases, sales and over-allotments will be for the
accounts of the several Underwriters as nearly as practicable in proportion to
their respective underwriting obligations, and at no time will our net
commitment under the foregoing provisions of this paragraph, either for long or
short accounts, exceed 10% of our original underwriting obligation. We will take
up at cost on demand any of the shares of Common Stock of the Company so
purchased for our account and deliver on demand any of the Shares sold or
over-allotted for our account. In the event of default by one or more
Underwriters in respect to their obligations under this paragraph, each
non-defaulting Underwriter shall assume its proportionate share of the
obligations of such defaulting Underwriter without relieving such defaulting
Underwriter of its liability hereunder. The existence of this provision is no
assurance that the price of any of the aforesaid securities will be stabilized
or that stabilizing, if commenced, will not be discontinued at any time.
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If you engage in any stabilizing transactions on behalf of the
Underwriters, you shall notify us promptly of the date and time when the first
stabilizing purchase is effected and the date and time when stabilizing is
terminated. We agree (and such agreement will survive the termination of any
provisions of this Agreement) to comply with all requirements of the Exchange
Act, and the rules and regulations thereunder, with respect to notification and
keeping of records of stabilizing transactions including providing you with
information required by Rule 17a-2 under said Exchange Act.
We agree to advise you, from time to time upon your request, of the number
of Shares retained by or released to us and remaining unsold, and will, upon
your request, release to you for the accounts of one or more of the several
Underwriters such number of such Shares as you may designate at such price, not
less than the net price to Dealers nor more than the public offering price as
you may determine.
If, pursuant to the provisions of this Section, you purchase or contract to
purchase any Shares that were retained by us for direct sale, we authorize you
in your discretion either to require us to repurchase such Shares at a price
equal to the total cost of such purchase, including commissions and transfer tax
on redelivery, to sell for our account such Shares and debit or credit our
account for the profit or loss resulting from such sale, or to charge our
account with an amount equal to the concession to Dealers with respect thereto.
Upon the termination of this Agreement, you are authorized in your
discretion, in lieu of delivering to the several Underwriters any Shares then
held for their respective accounts pursuant to this Section 7, to sell such
Shares for the accounts of each of the Underwriters at such prices as you may
determine.
8. Open Market Transactions. Except as permitted by Janco, we will not bid
for, purchase, attempt to induce others to purchase, sell, directly or
indirectly, either before or after the issuance of the Common Stock, any Shares
for our own account or for the account of customers, except (a) the purchase and
sale of Shares as provided in the Underwriting Agreement, this Agreement or the
agreements with Dealers, (b) the purchase from or sale to other Underwriters or
Dealers of Shares at the public offering price or at such price less any part of
the Dealers' concession, and (c) as brokers pursuant to unsolicited orders. We
hereby represent that we have complied with Rule 10b-6 in connection with this
Offering, and we agree that we will at all times comply with the provisions of
Rule 10b-6 of the Commission under the Exchange Act applicable to the Public
Offering.
9. Underwriter Undertakings. We will not make any representations
concerning the Shares other than those set forth in the Company's then current
Prospectus and will offer and sell the Shares in conformity with the terms of
the offering set forth in the Prospectus. By accepting this Agreement, we (i)
acknowledge our understanding of (a) Section 1 of Article III of the Rules of
Fair Practice of the National Association of Securities Dealers, Inc. (the
"Association") and the interpretations of such Section promulgated by the Board
of Governors of the Association (the "Interpretations") including, but not
limited to the Interpretation with respect to Free-Riding and Withholding, (b)
Rule 174 of the rules and regulations promulgated under the Act and Rules 10b-5
and 10b-6 promulgated under the Exchange Act, (c) Release No. 3907 under the
Act, (d) Release No. 4150 under the Act and (e) Sections 8, 24 ,25, and 36 of
Article III of the Rules of Fair Practice of the Association and the
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Interpretations of such Sections promulgated by the Board of Governors of the
Association; and (ii) represent, warrant, covenant and agree that we will comply
with all applicable requirements of the Act and the Exchange Act in addition to
the specific provisions cited at subparagraph (i) of this Paragraph 9, and that
we will not violate, directly or indirectly, any provision of applicable law in
connection with our participation in the Public Offering of the Shares.
By accepting this Agreement, we agree to comply with all applicable federal
laws including, but not limited to, the Act and the Exchange Act and the rules
and regulations of the Commission promulgated thereunder; the Constitution and
all applicable federal laws; the laws of the states or other jurisdictions in
which the Shares may be offered or sold by us; and the Constitution, Bylaws and
Rules of Fair Practice of the Association. Further, we agree that we will not
offer or sell the Shares in any state or jurisdiction except those in which the
Shares have been qualified or qualification is not required. We acknowledge we
will not be entitled to any compensation hereunder for any period during which
we have been suspended or expelled from membership in the Association. Upon
completion of billing of the Public Offering, we will furnish to you one copy of
an executed Territorial Distribution Questionnaire and one copy of a full and
complete list of all record and beneficial owners (if known) of the Shares sold
by us.
10. Employees and other Representatives. By accepting this Agreement, we
assume full responsibility for thorough and proper training of our employees and
other agents and representatives concerning the selling methods to be used in
connection with the Public Offering of the Shares, giving special emphasis to
the principles of full and fair disclosure to prospective investors and the
prohibitions against "Free-Riding and Withholding" as set forth by the
Interpretation of the Board of Governors to Section 1 of Article III of the
Rules of Fair Practice of the Association.
11. Allocation of Expenses. We authorize you to charge our account with all
transfer taxes on sales made by you for our account (except as herein otherwise
provided) and our proportionate share (based upon our underwriting obligation)
of all other expenses incurred by you arising under the terms of this Agreement
or the Underwriting Agreement, or in connection with the purchase, carrying,
sale or distribution of the Shares. Your determination of the amount and
allocation of such expenses shall be final and 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 without, however, relieving such defaulting Underwriter from its
liability therefor.
12. Termination and Settlement. The provisions of Sections 4, 7 and 8
hereof will terminate (a) at the close of business on the thirtieth day after
the date of the Underwriting Agreement; or (b) on such earlier or later date,
not more than thirty (30) days after the date specified in (a), as you may
determine; or (c) on the date of termination of the Underwriting Agreement, if
the same shall be terminated as provided by its terms.
As promptly as practicable after termination of the provisions referred to
in the first paragraph of this Section, our account will be settled and paid,
provided that Janco may reserve from distribution to the several Underwriters
such amounts as Janco deems advisable to cover the possible additional expenses.
The determination by Janco of the amounts to be paid to or by us will be final
and conclusive. Janco may at any time make partial distribution of credit
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balances or call on the several Underwriters to pay their respective debit
balances. Any of our funds in your hands may be held with your general funds
without accountability for interest and may be commingled with your general
funds. Notwithstanding termination of this Agreement or any settlement, we agree
to pay (a) our proportionate share (based on our underwriting obligation) of all
expenses and liabilities that may be incurred by or for the account of the
Underwriters, or any of them, and (b) any transfer taxes paid after such
settlement on account of any sale or transfer for our account.
If the Underwriting Agreement shall be terminated as permitted by the terms
thereof or if it shall be executed but shall not become effective, our
obligations herein shall immediately cease and terminate except the obligations
to pay our proportionate share of all expenses and except obligations, if any,
incurred for our account under Section 7 hereof and our obligations under the
second paragraph of this Section 12 and under Section 16 hereof.
13. 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 or in any way affect the liability of any defaulting
Underwriter to the other Underwriters for damages resulting from such default.
In case such default is for an aggregate amount which is less than 10% of the
Firm Shares, we will purchase additional Firm Shares as set forth in Section 7
of the Underwriting Agreement. If such default equals or exceeds 10% of the Firm
Shares, you are authorized, but shall not be obligated, to arrange for the
purchase by other persons, who may include yourself or any non-defaulting
Underwriter, of that defaulted portion in excess of such 10%. In the event such
arrangements are made, we will, on your request, purchase additional Firm Shares
not exceeding our original commitment under Section 7 of the Underwriting
Agreement and the respective aggregate amounts of Firm Shares to be purchased by
the non-defaulting Underwriters and by other such persons, if any, shall be
taken as the basis for determining the proportionate several obligations and
benefits hereunder and under the Underwriting Agreement, but this shall in no
way affect the liability of any defaulting Underwriter for damages resulting
from such default. If there is any default as to the purchase of the Option
Shares, you are authorized, but shall not be obligated, to purchase or to
arrange for the purchase by the non-defaulting Underwriters of the defaulted
portion.
14. Position of the Representative. Except as in this Agreement otherwise
specifically provided, you shall have full authority to take such action as you
deem necessary or advisable in respect of all matters pertaining to the
Underwriting Agreement and this Agreement in connection with the purchase,
carrying, sale and distribution of the Shares, 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 Shares or the validity or the form thereof, any preliminary
prospectus, the Registration Statement, the Prospectus, the Underwriting
Agreement, or other instruments executed by the Company or others; or for the
performance by the Company or others of any agreement on their part; nor shall
you, except for your own want of good faith, be liable to us under any
provisions hereof or for any matters connected herewith or 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 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 the
provisions referred to in the first paragraph of Section 12 hereof.
Nothing contained herein shall constitute us as partners with you or with
other Underwriters or shall constitute the several Underwriters as an
association or other separate entity and the rights and liabilities of ourselves
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and each of the other Underwriters (including you) are several and not joint. 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. You, as Representatives of the Underwriters, are authorized, in your
discretion, to execute on behalf of the Underwriters, such evidence of such
election as may be required by the Internal Revenue Service.
15. Compensation to the Representative. As compensation for your services
as manager, we agree to pay you an amount equal to $________ with respect to
each of the Shares that we become obligated to purchase under the Underwriting
Agreement, and you are authorized to charge our account for such amount.
16. Indemnification and Contribution.
a. Each Underwriter, including ourselves, agrees to indemnify, hold
harmless and reimburse each other Underwriter, each such entities'
officers, directors, partners, employees, agents, and counsel, each person,
if any, who controls any other Underwriter, within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act, and any successor of
any other Underwriter, all if and to the extent that each Underwriter will
be obligated in the Underwriting Agreement to indemnify, hold harmless and
reimburse the Company, each of its directors, each of its officers who
signed the Registration Statement, each person, if any, who controls the
Company within the meaning of the Act, and the Selling Shareholders.
b. Each Underwriter (including ourselves) will pay upon request, as
contribution, its proportionate share, based upon its underwriting
commitment, of any and all losses, claims, damages or liabilities, joint or
several, paid or incurred by any Underwriter to any person other than an
Underwriter arising out of or based upon any untrue statement or alleged
untrue statement of any material fact contained in the Registration
Statement, the Prospectus or any other related preliminary prospectus or
any other selling or advertising material approved by you for use by the
Underwriters in connection with the sale of the Shares, or the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary in order to make the statements therein not misleading
(other than an untrue statement or alleged untrue statement or omission or
alleged omission made in reliance upon and in conformity with written
information furnished to the Company by an Underwriter specifically for use
therein); and will pay such proportionate share of any legal or other
expenses reasonably incurred by you or with your consent in connection with
investigating or defending any such loss, claim, damage or liability, or
any action in respect thereof. In determining the amount of any
Underwriter's 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 the
Underwriting Agreement or otherwise. There will 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 subsequent to any payment by us pursuant to this
paragraph, appropriate provision will be made to effect such credit, by
refund or otherwise.
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c. We agree that you shall be under no liability in respect of any
matters connected herewith or actions taken by you pursuant to this
Agreement, except for obligations assumed by you, in this Agreement. In the
event that at any time any claim or claims shall be asserted against you,
as Representative, or otherwise involving the Underwriters generally,
relating to any preliminary prospectus, the Prospectus, the Registration
Statement, the public offering of the Shares, any state securities or Blue
Sky law qualification matters, or any of the transactions contemplated by
this Agreement, we authorize you to make such investigation, to retain such
counsel and in your discretion, separate counsel for any particular
Underwriter or group of Underwriters, and to take such other action as you
may deem necessary or desirable under the circumstances, including
settlement of any such claim or claims if such course of action shall be
recommended by counsel retained by you. We agree to pay you, on request,
our proportionate share (based on our underwriting obligations) of all
expenses incurred by you (including, but not limited to, the disbursement
and fees of counsel retained by you) in investigating and defending against
such claim or claims, and our proportionate share (based on our
underwriting obligation) of any liability incurred by you in respect of
such claim or claims, whether such liability shall be the result of a
judgment against you or the result of any such settlement. On determining
amounts payable pursuant to this paragraph, any loss, claim, damage,
liability or expense incurred by any person controlling any Underwriter
within the meaning of Section 15 of the Act or Section 20 of the Exchange
Act that 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. 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. You will also furnish each Underwriter with periodic reports
as to the status of such claim and the action taken by you in connection
therewith. If any Underwriter or Underwriters default in their obligation
to make any payments under this paragraph, then, without relieving such
defaulting Underwriter of its liability hereunder, each non-defaulting
Underwriter shall be obligated to pay its proportionate share of all
defaulted payments, based on such Underwriter's underwriting commitment as
related to the underwriting commitments of all non-defaulting Underwriters.
Any Underwriter or Underwriters defaulting in their obligations shall be
liable for all losses, claims, damages, liabilities, costs and attorneys
fees paid or incurred by any Underwriter in collection of the defaulted
payments from the defaulting Underwriter. The indemnity and contribution
provisions of this Section 16 shall survive the termination of this
Agreement Among Underwriters.
17. Blue Sky Matters. Prior to the time when the Shares are released for
sale, you will inform us of the states in which it is believed that the Shares
have been qualified are or exempt for sale. However, you will not have any
responsibility with respect to the right of any Underwriter or other person to
sell any of the Shares in any jurisdiction, notwithstanding the information that
you may furnish in that regard.
18. Notices. Any notice from you to us will be deemed to have been duly
given if mailed, telexed or sent by facsimile or other written communication to
us at our address as set forth in the Underwriters' Questionnaire that we have
transmitted to you. Any notice to you shall be deemed given if mailed, telexed
or sent by facsimile or other written communication to Janco Partners, Inc.,
5251 DTC Parkway, Suite 1010, Englewood, Colorado 80111.
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19. Miscellaneous.
a. We authorize you to file with any governmental agency any reports
required to be filed with you in connection with the transactions
contemplated by this Agreement or the Underwriting Agreement and we will
furnish any information in our possession needed for such reports.
b. You will not be under any duty to account for any interest on our
funds at any time in your hands.
c. We hereby confirm (i) that we have examined the Registration
Statement and are familiar with the amendments thereto, (ii) that the
information therein is correct and is not misleading and there are no
material omissions insofar as it relates to us, and (iii) that we are
willing to accept the responsibilities under the Act of an Underwriter
named in such Registration Statement. You are authorized in your
discretion, on our behalf, to approve of or object to any further
amendments or supplements to the Registration Statement.
d. You represent that you are a member in good standing of the
National Association of Securities Dealers, Inc. ("NASD") and we represent
that we are a member in good standing of the NASD and agree to comply with
the provisions of Section 24 of Article III of the Rules of Fair Practice
of the NASD.
e. We confirm that the ratio of our aggregate indebtedness to our net
capital is such that we may, in accordance with and pursuant to Rule 15c3-1
under the Exchange Act, obligate ourselves to purchase, and purchase, the
number of Shares which we agree to purchase under the Underwriting
Agreement.
f. This Agreement will be governed by, and construed in accordance
with, the laws of the State of Colorado.
g. In accordance with Rule 15c2-8(b) under the Exchange Act and Act
Release No. 4968, to the extent applicable, we will deliver copies of each
Preliminary Prospectus to our sales persons before they offer the Shares to
their clients, and we will deliver a Preliminary Prospectus to all persons
to whom we expect to mail confirmations of sales not less than 48 hours
prior to the time we expect to mail such confirmations.
h. This Agreement embodies the entire agreement and underwriting
between us and supersedes all prior agreements and understandings related
to the subject matter hereof, and this Agreement may not be modified or
amended or any term or provision hereof waived or discharged except in
writing signed by the party against whom such amendment, modification,
waiver or discharge is sought to be enforced. All the terms of this
Agreement, whether so expressed or not, shall be binding upon the
respective successors and assigns of the parties hereto (in respect of
"successors and assigns," reference is made to Section 15 of the
Underwriting Agreement) and shall inure to the benefit of and be
enforceable by the parties hereto and their respective successors and
assigns. The headings of this Agreement are for purposes of reference only
and shall not limit or otherwise affect the meaning hereof.
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20. Duplicate Original Copies. This Agreement may be signed in any number
of counterparts which taken together shall constitute one and the same
instrument.
Very truly yours,
THE UNDERWRITERS NAMED IN SCHEDULE I
TO THE UNDERWRITING AGREEMENT
By:
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As Attorney-in-Fact for each of the several
Underwriters named in Schedule I to the
Underwriting Agreement
CONFIRMED AND ACCEPTED AS OF THE DATE FIRST ABOVE MENTIONED:
JANCO PARTNERS, INC.
as Representative of the several
Underwriters named in Schedule I
to the Underwriting Agreement
By:
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Name:
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Title:
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EXHIBIT A
The Underwriting Agreement
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EXHIBIT B
The Selected Dealer Agreement
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