EXHIBIT 1.1
4,188,975 SHARES
▇▇▇▇▇▇▇ RADIO CORP.
COMMON STOCK, $.01 PAR VALUE PER SHARE
UNDERWRITING AGREEMENT
______________, 2003
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, INCORPORATED
As Representative of the
Several Underwriters Identified
In Schedule I Hereto
c/▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Incorporated
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Ladies and Gentlemen:
1. INTRODUCTORY. ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ (the "Selling Stockholder")
proposes, upon the terms and subject to the conditions set forth in this
underwriting agreement (this "Agreement"), to sell an aggregate of 4,188,975
shares (the "Firm Securities") of common stock, par value $0.01 per share (the
"Common Stock"), of ▇▇▇▇▇▇▇ Radio Corp., a Delaware corporation (the "Company"),
to the underwriters named in Schedule I hereto (the "Underwriters") for which
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Incorporated, a Delaware corporation, is acting as the
Representative (the "Representative"). The Selling Stockholder also proposes to
sell to the Underwriters, at the option of the Underwriters, an aggregate of not
more than 628,346 additional shares of Common Stock (the "Optional Securities").
The Firm Securities and the Optional Securities are herein collectively referred
to as the "Offered Securities." The Selling Stockholder, the Company and the
several Underwriters hereby agree as follows:
2.1 REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
STOCKHOLDER. The Company and the Selling Stockholder jointly and severally
represent and warrant to, and agree with, the Underwriters that:
(a) Registration. A registration statement on Form S-3 (File
No. 333-103840) under the Securities Act of 1933, as amended (the "Act"), with
respect to the Offered Securities, including a form of prospectus subject to
completion, has been prepared by the Company in conformity with the requirements
of the Act and the rules and regulations of the Securities and
Exchange Commission (the "Commission") thereunder (the "Rules and Regulations").
Such registration statement has been filed with the Commission under the Act and
one or more amendments to such registration statement may also have been so
filed. After the execution of this Agreement, the Company shall file with the
Commission a Prospectus (as hereinafter defined) which shall have been provided
to, and approved by, the Representative prior to the filing thereof.
As used in this Agreement, the term "Registration Statement" means such
registration statement, as amended and revised at the time when such
registration statement becomes effective, including all financial schedules and
exhibits thereto and any information omitted therefrom pursuant to Rule 430A
under the Act and included in the Prospectus (as hereinafter defined). The term
"Preliminary Prospectus" means each prospectus subject to completion contained
in such registration statement or any amendment thereto before the Registration
Statement was or is declared effective, or such prospectus subject to completion
filed pursuant to Rule 424(a) under the Act which omits the information
permitted under Rule 430A. The term "Prospectus" means a prospectus, including
any amendments or supplements thereto, relating to the Registration Statement
that includes all the information contained in the most recently filed
Preliminary Prospectus in addition to such information which may have been
omitted in any Preliminary Prospectus pursuant to Rule 430A under the Act. To
the extent the Company relies on Rule 462(b) under the Act to increase the
maximum aggregate offering price, the Company shall have made a timely filing of
a registration statement as required under Rule 462(b) (a "Rule 462(b)
Registration Statement") and such filing shall be in compliance with such Rule.
Copies of the Registration Statement, any amendment thereto and any Preliminary
Prospectus filed with the Commission have been delivered by the Company to the
Underwriters. The Registration Statement and any post-effective amendments
thereto have been declared effective by the Commission.
(b) The Commission has not issued any order suspending the
effectiveness of the Registration Statement, any post-effective amendment
thereto or Rule 462(b) Registration Statement, if any, or preventing or
suspending the use of any Preliminary Prospectus, the Prospectus, the
Registration Statement or any amendment or supplement thereto or suspending the
registration of the Offered Securities, nor has the Commission instituted or
threatened to institute any proceedings with respect to such an order. Each
Preliminary Prospectus, at the time of filing thereof, conformed in all material
respects to the requirements of the Act and the Rules and Regulations
thereunder, and did not contain an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that this representation and warranty
shall not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through the Representative expressly for use therein.
(c) The Registration Statement conforms, and the Prospectus
(or the most recent Preliminary Prospectus) and any further amendments or
supplements to the Registration Statement or the Prospectus will conform, in all
material respects, to the requirements of the Act and the Rules and Regulations
thereunder. The Registration Statement and any post-effective amendment thereto,
as of the applicable effective date or dates, and each Preliminary Prospectus
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and Prospectus, as of the date each such Preliminary Prospectus or Prospectus is
filed and at all times subsequent thereto up to and including the First Closing
Date (as defined in Section 3 hereof) and any Optional Closing Date (as defined
in Section 3 hereof), and during such longer period, if any, during which the
Prospectus may be required to be delivered in connection with sales to any
dealer and during such longer period, if any, until any post-effective amendment
thereto shall become effective, do not and will not contain an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; provided,
however, that this representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter through the Representative expressly
for use therein, and no event will have occurred which should have been set
forth in an amendment or supplement to the Registration Statement or the
Prospectus which has not then been set forth in such an amendment or supplement.
(d) Organization and Qualification; Material Adverse Effect.
The Company has been duly incorporated and is an existing corporation in good
standing under the laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business as a foreign
corporation in good standing in all other jurisdictions in which its ownership
or lease of property or the conduct of its business requires such qualification,
except to the extent that failure to be so qualified would not individually or
in the aggregate reasonably be expected to have a material adverse effect on the
condition (financial or other), business, properties or results of operations of
the Company and its Subsidiaries (as defined herein) taken as a whole (a
"Material Adverse Effect").
(e) Organization and Qualification of Subsidiaries. Except for
Sport Supply Group, Inc. ("SSG"), ▇▇▇▇▇▇▇ Radio (Hong Kong) Limited, and ▇▇▇▇▇▇▇
Radio International Ltd. (each, a "Subsidiary," and collectively, the
"Subsidiaries"), the Company has no subsidiary that is a "significant
subsidiary," as such term is defined in Rule 1-02 of Regulation S-X promulgated
under the Act. Each Subsidiary has been duly incorporated and is an existing
corporation in good standing under the laws of the jurisdiction of its
incorporation, with corporate power and authority to own its properties and
conduct its business as described in the Prospectus; and each such Subsidiary is
duly qualified to do business as a foreign corporation in good standing in all
other jurisdictions in which its ownership or lease of property or the conduct
of its business requires such qualification except where the failure to be so
qualified would not reasonably be expected to have, individually or in the
aggregate, a Material Adverse Effect.
(f) Authorization; Enforcement. (i) The Company has the
requisite corporate power and authority to enter into and perform its
obligations under this Agreement, (ii) the execution and delivery of this
Agreement by the Company and the consummation by it of the transactions
contemplated hereby have been duly authorized by all necessary corporate action,
and no further consent or authorization of the Company or its Board of Directors
or stockholders is required, (iii) this Agreement has been duly executed and
delivered by the Company, and (iv) this Agreement constitutes the valid and
binding obligations of the Company enforceable against the Company in accordance
with its terms, subject to applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation and other similar laws affecting the enforcement of
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creditors' rights generally, general equitable principles and the discretion of
courts in granting equitable remedies.
(g) Capitalization.
(i) The Company. The authorized capital stock of the
Company consists of 75,000,000 shares Common Stock and 10,000,000 shares of
preferred stock, par value $.01 per share ("Preferred Stock"). As of [recent
date], there were [27,416,867] shares of Common Stock and 3,677 shares of Series
A Preferred Stock issued and outstanding, respectively. All of the outstanding
shares of the Common Stock and Preferred Stock have been validly issued and are
fully paid and non-assessable. No shares of Common Stock or Series A Preferred
Stock are entitled to preemptive rights.
(ii) SSG. The authorized capital stock of SSG consists of
20,000,000 shares of Common Stock and 100,000 shares of preferred stock, par
value $.01 per share ("SSG Preferred Stock").
(iii) Other Commitments. The Company is not a party to or
bound by any instrument, agreement or other arrangement providing for the
Company to issue any capital stock, rights, warrants, options or other
securities, except as described in the Prospectus.
(h) Subsidiary Stock. All of the issued and outstanding shares
of capital stock of each Subsidiary have been duly and validly authorized and
issued and are fully paid and non-assessable and (except for SSG) are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims. As of [recent date], the Company owned
approximately [52.3%] of the outstanding shares of SSG Common Stock, free and
clear of all liens, encumbrances, equities or claims.
(i) No Conflicts. The execution, delivery and performance of
this Agreement by the Company and the consummation by the Company of the
transactions contemplated hereby do not and will not (i) result in a violation
of the charter or bylaws of the Company or any Subsidiary (ii) conflict with, or
constitute a default (or an event which with notice or lapse of time or both
would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture, patent,
license or instrument to which the Company or any Subsidiary is a party, or
(iii) result in a violation of any federal, state, local or foreign law, rule,
regulation, order, judgment or decree (including federal and state securities
laws and regulations) applicable to the Company or any Subsidiary or by which
any property or asset of the Company or any Subsidiary is bound or affected
(except for such conflicts, defaults, terminations, amendments, accelerations,
cancellations and violations as would not reasonably be expected to,
individually or in the aggregate, have a Material Adverse Effect); provided
that, for purposes of such representation as to federal, state, local or foreign
law, rule or regulation, no representation is made herein with respect to any of
the same applicable solely to the Underwriters and not to the Company or any
Subsidiary. The business of the Company and of each Subsidiary is not being
conducted in violation of any law, ordinance or regulation of any governmental
entity, except for violations which either singly or in the aggregate would not
reasonably be expected to have a Material Adverse Effect. The Company is not
required under federal, state, local or foreign law, rule or regulation to
obtain any consent,
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authorization or order of, or to make any filing or registration with, any court
or governmental agency in order for it to execute, deliver or perform any of its
obligations under this Agreement in accordance with the terms hereof.
(j) Principal Exchange/Market. The principal market on which
the Common Stock is currently traded is the American Stock Exchange (the
"AMEX"). The Offered Securities are listed on the AMEX.
(k) No Undisclosed Liabilities. To the Company's knowledge,
there are no liabilities or obligations of the Company not disclosed in the
Prospectus, other than those liabilities incurred in the ordinary course of its
respective business, or liabilities or obligations, individually or in the
aggregate, which do not or would not have a Material Adverse Effect on the
Company or the Subsidiaries, taken as a whole.
(l) No Undisclosed Events or Circumstances. No event or
circumstance has occurred or exists with respect to the Company, any Subsidiary
or their respective business, properties, operations or financial condition,
which, under applicable law, rule or regulation, requires public disclosure or
announcement by the Company but which has not been so publicly announced or
disclosed except with respect to the transactions contemplated hereby which
disclosure shall be made on or about the Closing Date.
(m) Intellectual Property. Except as otherwise disclosed in
the Prospectus, each of the Company and each of the Subsidiaries owns or has
licenses to use the patents, copyrights, servicemarks and trademarks
("Intellectual Property") material to its respective business. Except as
otherwise disclosed in the Prospectus, each of the Company and each Subsidiary
has all Intellectual Property rights which are needed to conduct its respective
business, in all material respects, as it is now being conducted or as proposed
to be conducted as disclosed in the Prospectus. Neither the Company nor the
Selling Stockholder have reason to believe that the Intellectual Property rights
owned by the Company are invalid or unenforceable or that the use of such
Intellectual Property by the Company or the Subsidiaries infringes upon or
conflicts with any right of any third party, and neither the Company nor any
Subsidiary has received notice of any such infringement or conflict that would
reasonably be expected to have a Material Adverse Effect. The Company and the
Selling Stockholder have no knowledge of any infringement of the Company's or
any Subsidiary's Intellectual Property by any third party that would reasonably
be expected to have a Material Adverse Effect.
(n) No Litigation. Except as set forth in the Prospectus, no
litigation or claim against the Company or any Subsidiary is pending or, to the
Selling Stockholder's or the Company's knowledge, threatened, and no other event
has occurred, which if determined adversely would reasonably be expected to have
a Material Adverse Effect or would materially adversely effect the transactions
contemplated hereby.
(o) Brokers. Neither the Company nor the Selling Stockholder
has taken any action which would give rise to any claim by any person, other
than the Underwriters, for brokerage commissions, finder's fees or similar
payments relating to this Agreement or the transactions contemplated hereby.
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(p) Property. Except as otherwise set forth in the Prospectus,
each of the Company and each Subsidiary owns, or has valid rights to use, all
items of real and personal property which are material to the business of the
Company or each Subsidiary, as the case may be, free and clear of all liens,
encumbrances and claims which materially interfere with the business,
properties, financial condition or results of operations of the Company, or each
Subsidiary, as the case may be.
(q) Taxes. Each of the Company and each Subsidiary has filed
all material federal, state and foreign income and franchise tax returns or
extensions for filing thereof required to be filed as of the date hereof, and
has paid or accrued all taxes shown as due thereon. The Company and the Selling
Stockholder have no knowledge of any tax deficiency which has been or might be
asserted or threatened against the Company or any Subsidiary which would
reasonably be expected to have a Material Adverse Effect.
(r) Related Party Transactions. All material transactions
between the Company and the officers, directors and beneficial holders of 5% or
more of the outstanding shares of the Common Stock of the Company that are
required to be described in Commission filings have been accurately disclosed in
the Prospectus.
(s) Insurance. The Company maintains insurance of the types
and in the amounts which it deems adequate for its business, including, but not
limited to, general liability insurance and insurance covering all material
interests in real and personal property owned or leased by the Company against
theft, damage, destruction, acts of vandalism and all other risks customarily
insured against by similarly situated companies, all of which insurance is in
full force and effect.
(t) Form S-3. The Company is eligible to file a Registration
Statement on Form S-3 under the Act and the rules promulgated thereunder, and
Form S-3 is permitted to be used for the transactions contemplated hereby under
the Act and the rules promulgated thereunder.
(u) Compliance with Covenants. The Company is in material
compliance with all applicable covenants, financial or otherwise, under its
material agreements.
2.2. ADDITIONAL REPRESENTATIONS AND WARRANTIES OF THE SELLING
STOCKHOLDER. The Selling Stockholder hereby makes the following additional
representations and warranties to the Company and to the Underwriters as of the
date hereof and the Closing Date:
(a) Capacity. The Selling Stockholder has the requisite legal
capacity to execute and deliver this Agreement.
(b) Due Execution. This Agreement has been duly authorized
executed and delivered by the Selling Stockholder. This Agreement constitutes
the valid and binding agreement of the Selling Stockholder enforceable against
him in accordance with its terms.
(c) No Conflict; Consents. The execution, delivery and
performance of this Agreement and the consummation by the Selling Stockholder of
the transactions contemplated hereby do not and will not (i) conflict with any
material agreement, indenture, or instrument to which the Selling Stockholder is
a party or (ii) result in a violation of any law, rule, or regulation
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or any order, judgment or decree of any court or governmental agency applicable
to the Selling Stockholder. The Selling Stockholder is not required under
federal, state, local or foreign law, rule or regulation to obtain any consent,
authorization or order of, or to make any filing or registration with, any court
or governmental agency in order for it to execute, deliver or perform any of its
obligations under this Agreement in accordance with the terms hereof.
(d) Ownership of the Offered Securities. The Selling
Stockholder owns the Offered Securities, free and clear of all liens, charges,
encumbrances and restrictions. On any Closing Date, the Selling Stockholder will
have full legal right, power and authority to sell, transfer and deliver the
Offered Securities hereunder and convey good and marketable title to the Offered
Securities, free and clear of all liens, charges, encumbrances, equities, claims
and restrictions whatsoever.
(e) Transfer Taxes. On any Closing Date, all applicable stock
transfer or other taxes (other than income taxes) applicable to the sale and
transfer of the Offered Securities have been paid and all laws providing for
such taxes have been complied with.
(f) Litigation. Except as set forth in the Prospectus, no
litigation or claim against the Selling Stockholder is pending, or to his
knowledge, threatened, which if determined adversely would reasonably be
expected to materially adversely effect the transactions contemplated hereby.
3. PURCHASE, SALE AND DELIVERY OF OFFERED SECURITIES. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, the Selling Stockholder agrees to
sell to the Underwriters, and each Underwriter agrees, severally and not
jointly, to purchase from the Selling Stockholder, at a purchase price of $_____
per share, the number of Firm Securities indicated next to such Underwriter's
name on Schedule I hereto.
The Selling Stockholder has delivered to ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
Incorporated, as custodian (the "Custodian"), pursuant to the Custody Agreement,
dated _________, 2003, by and between the Selling Stockholder and the Custodian
(the "Custody Agreement"), (i) certificates in negotiable form evidencing at
least the Offered Securities and (ii) stock powers duly executed in blank with
respect to the certificates representing at least the Offered Securities with
the signatures appropriately guaranteed. The Selling Stockholder and the
Custodian shall cause the transfer agent for the Company's Common Stock to
reissue the Firm Securities in such denominations and registered in such name or
names as the Representative may request and to have such reissued securities
available for checking and packaging at the Closing Location at least 24 hours
prior to the First Closing Date (as defined below).
At 10:00 a.m., New York time on __________________, 2003, or at such
other time not later than seven full business days thereafter as the
Representative and the Selling Stockholder determine, such time being herein
referred to as the "First Closing Date," the Custodian shall deliver the Firm
Securities to the Representative for the accounts of the Underwriters, against
payment of the purchase price in federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank drawn to the order of
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, at the offices of ▇▇▇▇▇▇▇▇▇▇ and Sandler, P.C. (the "Closing
Location").
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In addition, upon written notice from the Representative given to the
Company from time to time not more than 30 days subsequent to the date of the
Prospectus, the Underwriters may purchase all or less than all of the Optional
Securities at the purchase price per share to be paid for the Firm Securities.
The Selling Stockholder agrees to sell to the Underwriters the number of
Optional Securities specified in such notice. Such Optional Securities may be
purchased from the Selling Stockholder for the account of each Underwriter in
the same proportion as the number of Firm Securities set forth opposite such
Underwriter's name on Schedule I bears to the total number of Firm Securities
(subject to adjustment by the Representative to eliminate fractions) and may be
purchased by the Underwriters only for the purpose of covering over-allotments
made in connection with the sale of the Firm Securities. No Optional Securities
shall be sold or delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional
Securities or any portion thereof may be exercised from time to time and to the
extent not previously exercised may be surrendered and terminated at any time
upon notice by the Representative to the Selling Stockholder.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "Optional Closing Date", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by the
Representative but shall be not later than five full business days after written
notice of election to purchase Optional Securities is given.
Prior to each such Optional Closing Date, the Selling Stockholder and
the Custodian shall have caused the Company's transfer agent to reissue the
Optional Securities to be purchased in definitive form, in such denominations
and registered in such names as the Representative requests upon reasonable
notice prior to such Optional Closing Date and such reissued securities will be
made available by the Company for checking and packaging at the Closing Location
at a reasonable time in advance of such Optional Closing Date. On each such
Optional Closing Date, the Custodian will deliver the Optional Securities being
purchased to the Representative, for the accounts of the Underwriters, against
payment of the purchase price in federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank drawn to the order of
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, at the Closing Location.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public as
set forth in the Prospectus.
5. CERTAIN AGREEMENTS OF THE COMPANY AND THE SELLING STOCKHOLDER. (a)
The Company and the Selling Stockholder agree with the several Underwriters
that:
(i) The Company will use its best efforts to cause the
Registration Statement, if not effective at the time of execution of this
Agreement, and any amendments thereto, to become effective as promptly as
practicable. If required, the Company will file the Prospectus and any
amendments or supplements thereto with the Commission in the manner and within
the time period required by Rule 424(b). During any time when a prospectus
relating to the Offered Securities is required to be delivered under the Act,
the Company will comply with all requirements imposed upon it by the Act and the
Rules and Regulations to the extent
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necessary to permit the continuance of sales of or dealings in the Offered
Securities in accordance with the provisions hereof and of the Prospectus, as
then amended or supplemented. With respect to any registration statement,
prospectus, amendment or supplement to be filed with the Commission in
connection with the Offered Securities, the Company will provide a copy of each
such document to the Representative a reasonable time prior to the date such
document is proposed to be filed with the Commission and will not file any such
document without the consent of the Representative. Any such registration
statement, prospectus, amendment or supplement when filed, will comply with the
Act. In the event that the Registration Statement if effective at the time of
execution of this Agreement, but the total number of Offered Securities subject
to this Agreement exceeds the number of Offered Securities covered by the
Registration Statement, the Company will promptly file with the Commission on
the date hereof a registration statement pursuant to Rule 462(b) in accordance
with the requirements of such rule and will make payment of the filing fee
therefor in accordance with the requirements of Rule 111(b) under the Act.
(ii) The Company will advise the Representative promptly
of any proposal to amend or supplement the Registration Statement or the
Prospectus and will not effect such amendment or supplementation without the
Representative's consent; and the Company will also advise the Representative
promptly of the effectiveness of each Registration Statement (if such time is
subsequent to the execution and delivery of this Agreement) and of any amendment
or supplementation of a Registration Statement or the Prospectus and of the
institution by the Commission of any stop order proceedings in respect of a
Registration Statement and will use its reasonable best efforts to prevent the
issuance of any such stop order and to obtain as soon as possible its lifting,
if issued.
(iii) If, at any time when a prospectus relating to the
Offered Securities is required to be delivered under the Act in connection with
sales by any Underwriter or any dealer, any event occurs as a result of which
the Prospectus as then amended or supplemented would include an untrue statement
of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the Prospectus
to comply with the Act, the Company will promptly notify the Representative of
such event and will promptly prepare and file with the Commission, at the
Selling Stockholder's expense, an amendment or supplement which will correct
such statement or omission or an amendment which will effect such compliance.
Neither the Representative's consent to, nor the Representative's delivery of,
any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 5 hereof.
(iv) As soon as practicable, but not later than the
Availability Date (as defined below), the Company will make generally available
to its security holders an earning statement covering a period of at least 12
months beginning after the effective date of the Registration Statement (or, if
later, the effective date of any additional registration statement filed
pursuant to Rule 462) that will satisfy the provisions of Section 11(a) of the
Act. For the purpose of the preceding sentence, "Availability Date" means the
45th day after the end of the fourth fiscal quarter following the fiscal quarter
that includes such effective date, except that, if
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such fourth fiscal quarter is the last quarter of the Company's fiscal year,
"Availability Date" means the 90th day after the end of such fourth fiscal
quarter.
(v) The Company will furnish to the Representative copies
of each Registration Statement (five of which will be signed and will include
all exhibits), each related preliminary prospectus, and, so long as a prospectus
relating to the Offered Securities is required to be delivered under the Act in
connection with sales by any Underwriter or dealer, the Prospectus and all
amendments and supplements to such documents, in each case in such quantities as
the Representative reasonably requests. The Prospectus shall be so furnished on
or prior to 3:00 P.M., New York time, on the business day following the later of
the execution and delivery of this Agreement or the effective date of the
Registration Statement. All other such documents shall be so furnished as soon
as available. The Selling Stockholder will pay the expenses of printing and
distributing to the Underwriters all such documents.
(vi) The Company will arrange for the qualification of the
Offered Securities for sale under the laws of such jurisdictions as the
Representative designates; provided, however, that the Company is not required
(a) to file a general consent to service of process in any jurisdiction in which
it is not presently subject or (b) to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. The Company will continue such
qualifications in effect so long as required for the distribution.
(b) The Selling Stockholder agrees with the several
Underwriters and the Company that:
(i) The Selling Stockholder will pay (A) all expenses
incident to the performance of the obligations of the Selling Stockholder under
this Agreement; (B) all underwriting discounts and commissions; (C) any transfer
taxes on the sale by the Selling Stockholder of the Offered Securities to the
Underwriters; (D) any filing fees and other expenses (including fees and
disbursements of counsel for the Underwriters) up to a maximum of $5,000
incurred in connection with qualification of the Offered Securities for sale
under the laws of such jurisdictions as the Underwriters designates and the
printing of memoranda relating thereto; and (E) all expenses incurred in
printing the Preliminary Prospectus and the Prospectus (including any amendments
and supplements thereto) and delivering copies thereof to the Underwriters and
to prospective purchasers of the Offered Securities. The Stockholder will also
reimburse the Underwriters for their reasonable actual accountable out-of-pocket
expenses up to a maximum of $50,000 in the aggregate.
(ii) The Selling Stockholder agrees to deliver to the
Representative on or prior to the First Closing Date a properly completed and
executed United States Treasury Department Form W-9 (or other applicable form or
statement specified by Treasury Department regulations in lieu thereof).
(iii) The Selling Stockholder agrees, for a period of 180
days after the date of the Prospectus, not to offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, any additional shares of
the Common Stock or securities convertible into or exchangeable or exercisable
for any shares of Common Stock, enter into a transaction that would
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have the same effect, or enter into any swap, hedge or other arrangement that
transfers, in whole or in part, any of the economic consequences of ownership of
the Common Stock, whether any such aforementioned transaction is to be settled
by delivery of the Common Stock or such other securities, in cash or otherwise,
or publicly disclose the intention to make any such offer, sale, pledge or
disposition, or enter into any such transaction, swap, hedge or other
arrangement, without, in each case, the prior written consent of the
Representative, except for dispositions to affiliates of the Selling Stockholder
that agree to be bound by the provisions of this Section 5(b)(iii) for the
remainder of such 180-day period.
6. CONDITIONS OF THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the several Underwriters to purchase and pay for the Firm Securities on the
First Closing Date and the Optional Securities to be purchased on each Optional
Closing Date are subject to the continuing accuracy of the representations and
warranties of the Company and the Selling Stockholders herein as of the date
hereof, as of the Firm Closing Date, and as of each Optional Closing Date, if
any, as if they had been made on and as of such Closing Date, the accuracy on
and as of such Closing Date of the statements of officers of the Company made
pursuant to the provisions hereof; the performance by the Company on and as of
such Closing Date, of their respective covenants and agreements hereunder; and
the following additional conditions:
(a) The Registration Statement shall have been declared
effective, and the Prospectus (containing the information omitted pursuant to
Rule 430(A)) shall have been filed with the Commission not later than the
Commission's close of business on the second business day following the date
hereof or such later time and date to which the Representative shall have
consented. No stop order suspending the effectiveness of the Registration
Statement or any amendment thereto shall have been issued, and no proceedings
for that purpose shall have been instituted or threatened or, to the best
knowledge of the Company or the Representative, shall be contemplated by the
Commission. The Company shall have complied with any request of the Commission
for additional information (to be included in the Registration Statement or the
Prospectus or otherwise).
(b) The Representative shall not have advised the Company that
the Registration Statement, or any amendment thereto, contains an untrue
statement of fact which, in the Representative's opinion, is material, or omits
to state a fact which, in the Representative's opinion, is material and is
required to be stated therein or is necessary to make the statements therein not
misleading, or that the Prospectus, or any supplement thereto, contains an
untrue statement of fact which, in the Representative's opinion, is material, or
omits to state a fact which, in the Representative's opinion, is material and is
required to be stated therein or is necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading
(c) On or prior to any Closing Date, the Representative shall
have received from counsel to the Underwriters, such opinion or opinions with
respect to the issuance and sale of the Firm Shares or the Optional Shares, as
the case may be, the Registration Statement and the Prospectus and such other
related matters as the Representatives reasonably may request and such counsel
shall have received such documents and other information as they request to
enable them to pass upon such matters.
-11-
(d) On any Closing Date, the Representative shall have
received the opinions, dated such Closing Date, of counsel to the Selling
Stockholder, the Company and ▇▇▇▇▇▇▇ (Hong Kong) Limited, to the effect set
forth in Exhibit A attached hereto.
(e) On or prior to any Closing Date, counsel to the
Underwriters shall have been furnished such documents, certificates and opinions
as they may reasonably require in order to evidence the accuracy, completeness
or satisfaction of any of the representations or warranties of the Company or
conditions herein contained.
(f) At the time that this Agreement is executed by the Company
and the Selling Stockholder, the Representative shall have received from Ernst &
Young, LLP a letter as of the date of this Agreement in form and substance
satisfactory to the Representative (the "E & Y Original Letter"), and on the
First Closing Date and any Optional Closing Date the Representative shall have
received from such firm a letter dated such Closing Date, stating that, as of a
specified date not earlier than five (5) calendar days prior to such Closing
Date, nothing has come to the attention of such firm to suggest that the
statements made in the E & Y Original Letter are not true and correct.
(g) On any Closing Date, the Representative shall have
received a certificate, dated such Closing Date of the principal executive
officer and the principal financial or accounting officer of the Company to the
effect that each such person has carefully examined the Registration Statement
and the Prospectus and any amendments or supplements thereto and this Agreement,
and that:
(i) the representations and warranties of the Company in
this Agreement are true and correct, as if made on and as of such Closing Date
and the Company has complied, in all material respects, with all agreements and
covenants and satisfied all conditions contained in this Agreement on its part
to be performed or satisfied at or prior to such Closing Date; and
(ii) No stop order suspending the effectiveness of the
Registration Statement has been issued, and no proceedings for that purpose have
been instituted or are pending or, to the best knowledge of each such person,
are contemplated or threatened under the Act and any and all filings required by
Rule 424, Rule 430A and Rule 462(b) have been timely made.
References to the Registration Statement and the Prospectus in
this paragraph (g) are to such documents as amended and supplemented at the date
of the certificate required hereby.
(h) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development or
event involving a prospective change, in the condition (financial or other),
business, properties or results of operations of the Company and its
Subsidiaries taken as a whole which, in the judgment of the Representative, is
material and adverse and makes it impractical or inadvisable to proceed with
completion of the public
-12-
offering or the sale of and payment for the Offered Securities; (ii) any
downgrading in the rating, if any, of any debt securities, if any, of the
Company by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review its rating of any
debt securities, if any, of the Company (other than an announcement with
positive implications of a possible upgrading, and no implication of a possible
downgrading, of such rating, if any); (iii) any material suspension or material
limitation of trading in securities generally on the New York Stock Exchange,
the Nasdaq National Market or the American Stock Exchange, or any setting of
minimum prices for trading on such exchanges or market, or any suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market; (iv) any banking moratorium declared by U.S. Federal or
New York authorities; (v) any major disruption of settlements of securities or
clearance services in the United States or (vi) any attack on, outbreak or
escalation of hostilities or act of terrorism involving the United States, any
declaration of war by Congress or any other national or international calamity
or emergency if, in the judgment of the Representative, the effect of any such
attack, outbreak, escalation, act, declaration, calamity or emergency makes it
impractical or inadvisable to proceed with completion of the public offering or
the sale of and payment for the Offered Securities.
(i) No order suspending the sale of the Offered Securities in
any applicable jurisdiction has been issued on or prior to any Closing Date, and
no proceedings for that purpose have been instituted or, to the best knowledge
of such persons or that of the Company, have been or are contemplated.
(j) The NASD, upon review of the terms of the public offering
of the Offered Securities contemplated hereby, shall have indicated that it has
no objection to the underwriting arrangements pertaining to the sale of the
Offered Securities and the Underwriters' participation in the sale of the
Offered Securities as so contemplated.
(k) The Company and the Selling Stockholder shall have
furnished the Representative with such further opinions, letters, certificates
or documents as the Representatives or counsel for the Underwriters may
reasonably request.
All opinions, certificates, letters and documents to be furnished by
the Selling Stockholder or the Company will comply with the provisions hereof
only if they are reasonably satisfactory in all material respects to the
Representative and to counsel for the Underwriters. The Company shall furnish
the Representative with manually signed or conformed copies of such opinions,
certificates, letters and documents in such quantities as the Representative may
reasonably request. The certificates delivered under this Section 6 shall
constitute representations, warranties and agreements of the Company or the
Selling Stockholder, as the case may be, as to all matters set forth therein as
fully and effectively as if such matters had been set forth in Section 2 of this
Agreement.
If any condition to the Underwriters' obligations hereunder to be
satisfied prior to or at either the First Closing Date or any Optional Closing
Date is not so satisfied, this Agreement, at the Representative's election, will
terminate upon notification to the Company without liability on the part of any
Underwriter (including the Representative), the Selling Stockholder or the
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Company, except for the Underwriter's expenses to be reimbursed by the Selling
Stockholder pursuant to Section 5 hereof and except to the extent provided in
Section 9 hereof. The Underwriters may in its sole discretion waive compliance
with any conditions to the obligations of the Underwriters hereunder.
7. INDEMNIFICATION AND CONTRIBUTION. (a) The Company will indemnify and
hold harmless each Underwriter, its partners, directors and officers and each
person, if any, who controls the Underwriters within the meaning of Section 15
of the Act, against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Registration Statement,
the Prospectus, or any amendment or supplement thereto, or any related
preliminary prospectus, or arise out of or are based upon 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, and will reimburse
each Underwriter for any legal or other expenses reasonably incurred by such
Underwriter in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred; provided, however,
that the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement in or omission or alleged omission from
any of such documents in reliance upon and in conformity with written
information furnished to the Company by (i) any Underwriter through the
Representative specifically for use therein, it being understood and agreed that
the only such information furnished by any Underwriter consists of the
information described as such in subsection (c) below or (ii) the Selling
Stockholder specifically for use therein, it being understood and agreed that
the only such information furnished by the Selling Stockholder consists of the
information about the Selling Stockholder under the caption "Selling
Stockholder" in the Prospectus; provided, however, that with respect to any
untrue statement or alleged untrue statement in or omission or alleged omission
from any preliminary prospectus the indemnity, hold harmless and reimbursement
agreements contained in this subsection (a) shall not inure to the benefit of
any Underwriter from whom the person asserting any such losses, claims, damages
or liabilities purchased the Offered Securities concerned, to the extent that a
prospectus relating to such Offered Securities was required to be delivered by
such Underwriter under the Act in connection with such purchase and any such
loss, claim, damage or liability of such Underwriter results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the Prospectus if the Company had previously furnished copies thereof to such
Underwriter.
Insofar as the foregoing indemnity agreement, or the
representations and warranties contained in Section 2 hereof, may permit
indemnification for liabilities under the Act of any person who is an
Underwriter or a partner or controlling person of an Underwriter within the
meaning of Section 15 of the Act or who, at the date of this Agreement, is a
director, officer or controlling person of the Company, the Company has been
advised that, in the opinion of the Commission, such provisions may contravene
federal public policy as expressed in the Act and may therefore be
unenforceable. In the event that a claim for indemnification under such
agreement or such representations and warranties for any such liabilities
(except insofar as such agreement provides for the payment by the Company of
expenses incurred or paid by a director,
-14-
officer or controlling person in the successful defense of any action, suit or
proceeding) is asserted by such a person, the Company will submit to a court of
appropriate jurisdiction (unless in the opinion of counsel for the Company the
matter has already been settled by controlling precedent) the question of
whether or not indemnification by it for such liabilities is against public
policy as expressed in the Act and therefore unenforceable, and the Company will
be governed by the final adjudication of such issue.
(b) The Selling Stockholder, in his capacity as the Selling
Stockholder and not in his capacity as an officer or director of the Company,
will indemnify and hold harmless each Underwriter, its partners, directors and
officers and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon 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,
and will reimburse each Underwriter for any legal or other expenses reasonably
incurred by such Underwriter in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Selling Stockholder shall only be subject to
indemnification, hold harmless and reimbursement obligations under this
subsection (b) only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission is based upon and in conformity with
written information provided by the Selling Stockholder relating to the Selling
Stockholder specifically for use therein, it being understood and agreed that
the only such information furnished by the Selling Stockholder consists of the
information about the Selling Stockholder under the caption "Selling
Stockholder" in the Prospectus; provided, however, that with respect to any
untrue statement or alleged untrue statement in or omission or alleged omission
from any preliminary prospectus the indemnity, hold harmless and reimbursement
agreements contained in this subsection (b) shall not inure to the benefit of
any Underwriter from whom the person asserting any such losses claims, damages
or liabilities purchased the Offered Securities concerned, to the extent that a
prospectus relating to such Offered Securities was required to be delivered by
the Underwriters under the Act in connection with such purchase and any such
loss, claim, damage or liability of such Underwriter results from the fact that
there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the Prospectus if the Company had previously furnished copies thereof to the
Underwriter; and provided, further, that the liability under this Section 7 of
the Selling Stockholder shall be limited to an amount equal to the aggregate net
proceeds, after deducting underwriting discounts and commissions, received by
the Selling Stockholder from the sale of the Offered Securities sold by the
Selling Stockholder hereunder.
(c) Each of the Underwriters will, severally and not jointly,
indemnify and hold harmless the Selling Stockholder and the Company, its
directors and officers and each person, if any, who controls the Company within
the meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities to which the Company or the Selling Stockholder may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities
-15-
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in any
Registration Statement, the Prospectus, or any amendment or supplement thereto,
or any related preliminary prospectus, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by such
Underwriter through the Representative specifically for use therein, and will
reimburse any legal or other expenses reasonably incurred by the Company and the
Selling Stockholder in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred, it being
understood and agreed that the only such information furnished by any
Underwriter consists of the statements set forth under the caption
"Underwriting" and the stabilization legend in the Prospectus.
(d) Promptly after receipt by an indemnified party under this
Section 7 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against an indemnifying party
under subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the failure to so notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
under subsection (a), (b) or (c) above except to the extent that it has been
materially prejudiced (through the forfeiture of substantive rights or defenses)
by such failure; and provided further that the failure to notify the
indemnifying party shall not relieve it from any liability that it may have to
an indemnified party otherwise than under subsection (a), (b) or (c) above. In
case any such action is brought against any indemnified party and it notifies an
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel reasonably satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified party under this
Section 7 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party unless such settlement (i) includes an unconditional release of such
indemnified party from all liability on any claims that are the subject matter
of such action and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act by or on behalf of an indemnified party.
(e) If the indemnification provided for in this Section 7 is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) above or, where the indemnified party is the Company or its
officers, directors or controlling persons, under subsection (c) above, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of the losses, claims, damages or liabilities referred to in subsection (a) or
(c) above in such proportion
-16-
as is appropriate to reflect the relative fault of the Company on the one hand
and the Underwriters on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities as well as any
other relevant equitable considerations. If the indemnification provided for in
this Section 7 is unavailable to an indemnified party under subsection (b) above
or, where the indemnified party is the Selling Stockholder, under subsection (c)
above, then each indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of the losses, claims, damages or liabilities referred to in
subsection (b) or (c) above (i) in such proportion as is appropriate to reflect
the relative benefits received by the Selling Stockholder on the one hand and
the Underwriters on the other hand from the offering of the Offered Securities,
or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the Selling Stockholder on the one hand and the Underwriters on the other in
connection with the statements and omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations; provided, however, that the liability under this Section 7 of
the Selling Stockholder shall be limited to an amount equal to the aggregate net
proceeds, after deducting underwriting discounts and commissions, received by
the Selling Stockholder from the sale of the Offered Securities sold by the
Selling Stockholder. The relative benefits received by the Selling Stockholder
on the one hand and the Underwriters on the other shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Selling Stockholder bear to the total underwriting
discounts and commissions received by the Underwriters. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company, the Selling
Stockholder or the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such untrue
statement or omission. The amount paid by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in this subsection (e)
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any action
or claim which is the subject of this subsection (e). Notwithstanding the
provisions of this subsection (e), no Underwriters shall be required to
contribute any amount in excess of the amount by which the total price at which
the Offered Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which the Underwriters
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Stockholder
under this Section 7 shall be in addition to any liability which the Company and
the Selling Stockholder may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls the Underwriters within the
meaning of the Act; and the obligations of the Underwriters under this Section 7
shall be in addition to any liability which the Underwriters may otherwise have
and shall extend, upon the same terms and conditions, to each director of the
-17-
Company, to each officer of the Company who has signed a Registration Statement
and to each person, if any, who controls the Company within the meaning of the
Act.
8. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters default
in its obligation to purchase Offered Securities hereunder on the First Closing
Date or any Optional Closing Date and the aggregate number of shares of Offered
Securities that the Underwriter or Underwriters agreed but failed to purchase
does not exceed 10% of the total number of shares of Offered Securities that the
Underwriters are obligated to purchase on such Closing Date, the Representative
may make arrangements satisfactory to the Selling Stockholder for the purchase
of such Offered Securities by other persons, including any of the Underwriters,
but if no such arrangements are made by such Closing Date, the non-defaulting
Underwriters shall be obligated severally, in proportion to their respective
commitments hereunder, to purchase the Offered Securities that such defaulting
Underwriters agreed but failed to purchase on such Closing Date. If any
Underwriter or Underwriters so default and the aggregate number of shares of
Offered Securities with respect to which such default or defaults occurs exceeds
10% of the total number of shares of Offered Securities that the Underwriters
are obligated to purchase on such Closing Date and arrangements satisfactory to
the Representative and the Selling Stockholder for the purchase of such Offered
Securities by other persons are not made within 36 hours after such default,
this Agreement will terminate without liability on the part of any
non-defaulting Underwriter, the Company or the Selling Stockholder, except as
provided in Section 9 hereof (provided that if such default occurs with respect
to Optional Securities after the First Closing Date, this Agreement will not
terminate as to the Firm Securities or any Optional Securities purchased prior
to such termination). As used in this Agreement, the term "Underwriters"
includes any person substituted for an Underwriter under this Section 8. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
9. SURVIVAL OF CERTAIN REPRESENTATIONS AND OBLIGATIONS. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholder, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of the Underwriters, the Selling
Stockholder, the Company or any of their respective representatives, officers or
directors or any controlling person, and will survive delivery of and payment
for the Offered Securities. If this Agreement is terminated pursuant to Section
8 hereof or if for any reason the purchase of the Offered Securities by the
Underwriters is not consummated, the Company and the Selling Stockholder shall
remain responsible for the expenses to be paid or reimbursed by them pursuant to
Section 5 hereof and the respective obligations of the Company, the Selling
Stockholder, and the Underwriters pursuant to Section 7 hereof shall remain in
effect, and if any Offered Securities have been purchased hereunder the
representations and warranties in Section 2 hereof and all obligations under
Section 5 hereof shall also remain in effect.
10. NOTICES. All communications hereunder will be in writing and, if
sent to the Underwriters, will be mailed, delivered or telegraphed and confirmed
to the Representative at ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Incorporated, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇. Place; if sent to the Company,
will be mailed, delivered or telegraphed and confirmed to it at ▇▇▇▇▇▇▇ Radio
Corp., ▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
-18-
Attention: Executive Vice President and Chief Executive Officer; or if sent to
the Selling Stockholder, will be mailed, delivered or telegraphed and confirmed
to him at c/▇ ▇▇▇▇▇▇▇ Radio Corp., ▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇.
11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
12. REPRESENTATION. The Representative will act for the several
Underwriters in connection with the transactions contemplated by this Agreement
and any action under this Agreement taken by the Representative will be binding
upon all the Underwriters.
13. HEADINGS. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions hereof.
14. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same Agreement.
15. APPLICABLE LAW; CHOICE OF FORUM. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Maryland, without
regard to principles of conflicts of laws. The Company, the Selling Stockholder
and the Underwriters hereby submit to the non-exclusive jurisdiction of the
federal and state courts in the State of Maryland in any suit or proceeding
arising out of or relating to this Agreement or the transactions contemplated
hereby.
If the foregoing is in accordance with the Representative's
understanding of our agreement, kindly sign and return to each of the Company
and the Selling Stockholder one of the counterparts hereof, whereupon it will
become a binding agreement among the Selling Stockholder, the Company and the
Underwriters in accordance with its terms.
[SIGNATURES FOLLOW ON NEXT PAGE]
-19-
Very truly yours,
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, SELLING STOCKHOLDER
------------------------------------------
▇▇▇▇▇▇▇ RADIO CORP.
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, INCORPORATED
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
-20-
SCHEDULE I
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Underwriters Shares of Firm Securities
------------ -------------------------
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Incorporated
-21-
