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4,000,000 Shares EXHIBIT 1.1
All American Communications, Inc.
Class B Common Stock
UNDERWRITING AGREEMENT
December , 1995
Xxxxxxxxxxx & Co., Inc.
Xxxxxxx and S. Bleichroeder, Inc.
c/o Oppenheimer & Co., Inc.
Xxxxxxxxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representatives of the
several Underwriters named in
Schedule I attached hereto.
Ladies and Gentlemen:
All American Communications, Inc., a Delaware corporation (the
"Company"), proposes to sell to you and the other underwriters named in Schedule
I to this Agreement (the "Underwriters"), for whom you are acting as
representatives (the "Representatives"), an aggregate of 4,000,000 shares (the
"Firm Shares") of the Company's Class B common stock, $.0001 par value (the
"Common Stock") which shares are to be issued and sold by the Company. In
addition, certain other stockholders named in Schedule II of this Agreement (the
"Option Selling Stockholders") propose to grant to the Underwriters an option to
purchase up to an additional 600,000 shares (the "Option Shares") of Common
Stock from them for the purpose of covering over-allotments in connection with
the sale of the Firm Shares. The Firm Shares and the Option Shares are together
called the "Shares."
1. Sale and Purchase of the Shares. On the basis of the
representations, warranties and agreements contained in, and subject to the
terms and conditions of, this Agreement:
(a) The Company agrees to sell to each of the Underwriters, and each
of the Underwriters agrees, severally and not jointly, to purchase from the
Company, at $ per share (the "Initial Price"), the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule I to this
Agreement.
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(b) The Option Selling Stockholders, severally and not jointly, grant
to the several Underwriters an option to purchase, severally and not
jointly, all or any part of the Option Shares at the Initial Price. The
number of Option Shares to be purchased by each Underwriter shall be the
same percentage (adjusted by the Representatives to eliminate fractions) of
the total number of Option Shares to be purchased by the Underwriters as
such Underwriter is purchasing of the Firm Shares. Such option may be
exercised only to cover over-allotments in the sales of the Firm Shares by
the Underwriters and may be exercised in whole or in part at any time on or
before 12:00 noon, New York City time, on the business day before the Firm
Shares Closing Date (as defined below), and only once thereafter within 30
days after the date of this Agreement, in each case upon written or
telegraphic notice, or verbal or telephonic notice confirmed by written or
telegraphic notice, by the Representatives to the Company no later than
12:00 noon, New York City time, on the business day before the Firm Shares
Closing Date or at least two business days before the Option Shares Closing
Date (as defined below), as the case may be, setting forth the number of
Option Shares to be purchased and the time and date (if other than the Firm
Shares Closing Date) of such purchase which shall be not more than three
business days following the date of the exercise of the option. The Company
agrees that if any Option Selling Stockholder fails to deliver the number
of Option Shares to be purchased by the Underwriters hereunder, then the
Company shall, at the request of the representatives and upon the same
terms and conditions hereof as relate to the sale of the Option Shares by
the Option Selling Stockholders, on the Option Shares Closing Date deliver
to the Underwriters the number of Option Shares that such Option Selling
Stockholder failed to deliver.
2. Delivery and Payment. Delivery by the Company of the Firm Shares
to the Representatives for the respective accounts of the Underwriters, and
payment of the purchase price by certified or official bank check or checks
payable in New York Clearing House (next day) funds to the Company, shall take
place at the offices of Xxxxxx, Xxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxx Xxxxxx, Xxx
Xxxxxxx, Xxxxxxxxxx, at 7:00 a.m., Los Angeles time, on the third business day
following the date of this Agreement, provided, however, that if the Shares sold
hereunder are priced after 1:30 p.m., Los Angeles time, on any business day,
payment and delivery in respect of the Firm Shares shall take place on the
fourth business day following the date of this Agreement; in either case unless
another time shall be agreed upon by the Company and the Representatives (such
time and date of delivery and payment are called the "Firm Shares Closing
Date").
In the event the option with respect to the Option Shares is
exercised, delivery by the Option Selling Stockholders
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of the Option Shares to the Representatives for the respective accounts of the
Underwriters and payment of the purchase price by certified or official bank
check or checks payable in New York Clearing House (next day) funds to an
Attorney-in-fact named in Section 4(B)(a) hereof shall take place at the offices
of Xxxxxx, Xxxxx & Bockius LLP specified above at the time and on the date
(which may be the same date as, but in no event shall be earlier than, the Firm
Shares Closing Date) specified in the notice referred to in Section 1(b) (such
time and date of delivery and payment are called the "Option Shares Closing
Date"). The Firm Shares Closing Date and the Option Shares Closing Date are
called, individually, a "Closing Date" and, together, the "Closing Dates."
Certificates evidencing the Shares shall be registered in such names
and shall be in such denominations as the Representatives shall request at least
two full business days before the Firm Shares Closing Date or, in the case of
Option Shares, on the day of notice of exercise of the option as described in
Section 1(b) and shall be made available to the Representatives for checking and
packaging, at such place as is designated by the Representatives, at least one
full business day before the Firm Shares Closing Date (or the Option Shares
Closing Date in the case of the Option Shares).
3. Registration Statement and Prospectus; Public Offering. The
Company has prepared in conformity with the requirements of the Securities Act
of 1933, as amended (the "Securities Act"), and the published rules and
regulations thereunder (the "Rules") adopted by the Securities and Exchange
Commission (the "Commission"), a registration statement on Form S-2 (No.
33-63509), including a preliminary prospectus relating to the Shares, and has
filed with the Commission the Registration Statement and such amendments thereto
as may have been required to the date of this Agreement. Copies of such
Registration Statement (including all amendments thereto) and of the related
preliminary prospectus have heretofore been delivered by the Company to you. The
term "Registration Statement" means the Registration Statement as amended at the
time and on the date it becomes effective (the "Effective Date"), including all
information incorporated by reference therein and all exhibits and information,
if any, deemed to be part of the Registration Statement pursuant to Rule 424(a)
and Rule 430A of the Rules. The term "preliminary prospectus" means any
preliminary prospectus (as described in Rule 430 of the Rules) included at any
time as a part of the Registration Statement, including all information
incorporated by reference therein. The term "Prospectus" means the prospectus,
including all information incorporated by reference therein, in the form first
used to confirm sales of the Shares (whether such prospectus was included in the
Registration Statement at the time of effectiveness or was subsequently filed
with the Commission pursuant to Rule 424(b) of the Rules).
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The Company understands that the Underwriters propose to make a public
offering of the Shares, as set forth in and pursuant to the Prospectus, as soon
after the Effective Date and the date of this Agreement as the Representatives
deem advisable. The Company hereby confirms that the Underwriters and dealers
have been authorized to distribute or cause to be distributed each preliminary
prospectus and are authorized to distribute the Prospectus (as from time to time
amended or supplemented if the Company furnishes amendments or supplements
thereto to the Underwriters).
4. Representations and Warranties of the Company. (A) The Company
hereby represents and warrants to each Underwriter as follows:
(a) On the Effective Date, the Registration Statement complied, and,
on the date of the Prospectus, on the date any post-effective amendment to
the Registration Statement shall become effective, on the date any
supplement or amendment to the Prospectus is filed with the Commission and
on each Closing Date, the Registration Statement and the Prospectus (and
any amendment thereof or supplement thereto) will comply, in all material
respects, with the applicable provisions of the Securities Act and the
Rules and the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and the rules and regulations of the Commission thereunder; the
Registration Statement did not, as of the Effective Date, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading; and on the other dates referred to in this
subparagraph (a) above neither the Registration Statement nor the
Prospectus, nor any amendment thereof or supplement thereto, will contain
any untrue statement of a material fact or will omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading. When any related preliminary prospectus
was first filed with the Commission (whether filed as part of the
Registration Statement or any amendment thereto or pursuant to Rule 424(a)
of the Rules) and when any amendment thereof or supplement thereto was
first filed with the Commission, such preliminary prospectus as amended or
supplemented complied in all material respects with the applicable
provisions of the Securities Act and the Rules and did not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading. The Company makes no representation or warranty as
to the paragraphs with respect to stabilization and passive market making
on the inside front cover page of the Prospectus and the statements
contained in the third and fourth paragraphs under the caption
"Underwriting" in the Prospectus. The Company and the Option Selling
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Stockholders acknowledge that such statements constitute the only
information furnished in writing by the Representatives on behalf of the
several Underwriters specifically for inclusion in the Registration
Statement, any preliminary prospectus or the Prospectus.
(b) All contracts, documents and other information required to be
filed as exhibits to the Registration Statement have been filed with the
Commission as exhibits to the Registration Statement as so required. The
documents incorporated by reference in the Registration Statement or the
Prospectus, at the time they were or hereafter are filed or last amended,
as the case may be, with the Commission, complied and will comply in all
material respects with the requirements of the Exchange Act, and the rules
and regulations of the Commission thereunder.
(c) The consolidated financial statements of the Company (including
all notes and schedules thereto) included or incorporated by reference in
the Registration Statement and Prospectus comply as to form in all material
respects with the requirements of the Securities Act and the Exchange Act
and fairly present the financial position, the results of operations and
cash flows and the stockholders' equity and the other information purported
to be shown therein of the Company at the respective dates and for the
respective periods to which they apply; and such financial statements have
been prepared in conformity with generally accepted accounting principles,
except as noted therein, consistently applied throughout the periods
involved, and all adjustments necessary for a fair presentation of the
results for such periods have been made; and the other financial and
statistical information and the supporting Schedules included or
incorporated by reference in the Prospectus and in the Registration
Statement present fairly, in all material respects, the information
required to be stated therein.
(d) Ernst & Young LLP, whose reports are filed with the Commission as
a part of the Registration Statement, are and, during the periods covered
by their reports, were independent public accountants as required by the
Securities Act and the Rules.
(e) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Delaware. The
Company has no subsidiary or subsidiaries and does not control, directly or
indirectly, any corporation, partnership, joint venture, association or
other business organization other than All American FDF Holdings, Inc., a
Delaware corporation ("FDF"), Fremantle (Deutschland) Fernseh Produktions,
GmbH, a German corporation ("FFP"), All American Television,
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Inc., a Delaware corporation ("AAT"), The Baywatch Production Company, a
California corporation ("BPC"), The Baywatch Nights Production Company, a
California corporation ("BNP"), LBS Communications, Inc., a New York
corporation ("LBS"), All American Television Production, Inc., a California
corporation ("AATP"), The Malibu Branch Production Company, a California
corporation ("MBP"), Xxxxxx Brothers Entertainment Industries, Inc., a
Delaware corporation ("SBEI"), Santa Xxxxxx Sound Recorders , Inc., a
California corporation ("SMSR"), SBSVTV, Inc., a California corporation
("SBSVTV"), Xxxxxx Brothers Records, Inc., a California corporation
("SBR"), All American Fremantle International, Inc., a Delaware corporation
("AAFI"), Fremantle International, Inc., a New York corporation ("FI"), All
American/Fremantle (U.K.) Productions, Ltd., a corporation in the United
Kingdom ("FP"), All American Xxxxxxx, Inc., a Delaware corporation ("AAG"),
Xxxx Xxxxxxx Productions, LLC, a New York limited liability company
("MGP"), All American Television II, Inc., a Delaware corporation ("AATII")
and All American Fremantle II, Inc., a Delaware corporation ("AAFII"), each
of which is a wholly-owned direct or indirect subsidiary of the Company
except as described in the Prospectus. The only subsidiaries that are
material to the business, results of operations or financial condition of
the Company are AAT, AAFI, SBEI, BNP, BPC, FFP, AAG, FDF, FP, AAFII and MGP
(collectively, the "Subsidiaries"). Each of the Subsidiaries is a validly
existing corporation in good standing under the laws of its state of
incorporation or organization. The Company and each of the Subsidiaries is
duly qualified to do business as a foreign corporation and in good standing
in each jurisdiction in which the character or location of its assets or
properties (owned, leased or licensed) or the nature of its business makes
such qualification necessary except for such jurisdictions where the
failure to so qualify would not have a material adverse effect on the
assets or properties, business, results of operations or financial
condition of the Company and its Subsidiaries taken as a whole (a "Material
Adverse Effect"). The Company and each of the Subsidiaries has all
requisite corporate power and authority, and all necessary authorizations,
approvals, consents, orders, licenses, certificates and permits of and from
all governmental or regulatory bodies or any other person or entity, to
own, lease and license its assets and properties and conduct its businesses
as now being conducted and as described in the Registration Statement and
the Prospectus; and the Company has all such corporate power and
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authority, and such authorizations, approvals, consents, orders, licenses,
certificates and permits to execute and deliver this Agreement and to
perform its obligations under this Agreement and to issue and sell the
Shares (except as may be required under the Securities Act and state and
foreign Blue Sky laws).
(f) All of the issued and outstanding shares of capital stock of each
subsidiary have been duly authorized and validly issued, and, on the
Closing Date, FDF, AAT, AATP, SBEI, AAP and AAFI will be owned directly by
the Company and FFP will be owned directly by FDF, BPC, BNP, and LBS and
AATII will be owned directly by AAT, MBP will be owned directly by AATP,
SMSR, SBSVTV and SBR will be owned directly by SBEI and FI, AAFII and FP
will be owned directly by AAFI. All shares or other ownership interests in
each Subsidiary owned by the Company or any Subsidiaries are fully paid and
nonassessable, and are owned by the Company or such Subsidiary free and
clear of any security interest, mortgage, pledge, claim, lien, encumbrance
or adverse interest of any nature (each, a "Lien") except as contemplated
by the Credit, Security, Guaranty and Pledge Agreement dated as of April
13, 1995, as amended as of April 13, 1995, and as further amended as of
November 10, 1995, among the Company, the other borrowers named therein,
the other Guarantors named therein, the lender's named therein and Chemical
Bank, as Agent and Chemical Bank as Fronting Bank (as amended, the
"Chemical Bank Loan") and as disclosed in the Prospectus. Excepts as
disclosed in the Registration Statement, there are no outstanding
subscriptions, rights, warrants, options, calls, convertible or
exchangeable securities, commitments of sale, or Liens (except as
contemplated by the Chemical Bank Loan) related to or entitling any person
to purchase or otherwise to acquire any shares of the capital stock of, or
other ownership interests in, any Subsidiary.
(g) The Company and each of the Subsidiaries owns or possesses
adequate and enforceable rights to use each of the trademarks and
copyrights, referred to in the Registration Statement and the Prospectus
and, except as disclosed in the Registration Statement and the Prospectus,
owns or possesses adequate and enforceable rights to use all other patents,
patent applications, trademarks, trademark applications, service marks,
copyrights, copyright applications, licenses performing right, literary,
dramatic, musical, artistic, personal, private or contract right and other
similar rights (collectively, "Intangibles") necessary for the conduct of
its businesses as now being conducted and as described in the Registration
Statement and the Prospectus except where the failure to have any such
right would not singly, or in the aggregate, have a Material Adverse
Effect. Neither the Company nor any Subsidiary has infringed, is
infringing, or
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has received any notice of infringement of, any Intangible of any other
person, that will have a Material Adverse Effect and the Company does not
know of any basis therefor. Except as disclosed in the Prospectus, there is
no claim, suit, action or proceeding pending or, to the best knowledge of
the Company, threatened against the Company or any of its Subsidiaries that
involves a claim of infringement of any Intangibles (except for such claims
as would not, singly or in the aggregate, have a Material Adverse Effect)
and the Company has no knowledge of any existing infringement by any other
person of any Intangible held by the Company or any of the Subsidiaries
that could result in a Material Adverse Effect.
(h) The Company and each of the Subsidiaries has good and marketable
title in fee simple to each of the items of real property and good title to
each of the items of personal property which are reflected in the financial
statements referred to in Section 4(c) (except as disposed of after the
date of such financial statements in the ordinary course of business) or
are referred to in the Registration Statement and the Prospectus as being
owned by it and valid and enforceable leasehold interests in each of the
items of real and personal property which are referred to in the
Registration Statement and the Prospectus as being leased by it, in each
case free and clear of all liens, encumbrances, claims, security interests
and defects, other than those described in the Registration Statement and
the Prospectus and those which do not and will not have a Material Adverse
Effect.
(i) Except as disclosed in the Registration Statement and the
Prospectus, there is no litigation or governmental or other proceeding or
investigation before any court or before or by any public body or board
pending or, to the Company's best knowledge, threatened (and the Company
does not know of any basis therefor) against or involving the assets,
properties or businesses of, the Company or any Subsidiary which if
determined adversely to the Company or any Subsidiary would have a Material
Adverse Effect.
(j) No action has been taken with respect to the Company or any of
its Subsidiaries, and no statute, rule or regulation or order has been
enacted, adopted or issued by any governmental agency which prevents the
issuance of the Shares, suspends the effectiveness of the Registration
Statement, prevents or suspends the use of preliminary prospectuses or
suspends the sale of the Shares in any jurisdiction referred to in Section
6(e) hereof; no injunction, restraining order or order of any nature by a
Federal or state court of competent jurisdiction has been issued with
respect to the Company or any of its Subsidiaries which would prevent the
issuance of the Shares,
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suspend the effectiveness of the Registration Statement, prevent or suspend
the use of preliminary prospectuses or suspend the sale of the Shares in
any jurisdiction referred to in Section 6(e) hereof; no action, suit or
proceeding before any court or arbitrator or any governmental body, agency
or official (domestic or foreign), is pending against or, to the knowledge
of the Company, threatened against, the Company or any of its Subsidiaries
which, if adversely determined, could reasonably be expected to (a)
interfere with or adversely affect the issuance of the Shares, or (b) in
any manner invalidate this Agreement; and every request of the Commission,
or any securities authority or agency of any jurisdiction, for additional
information (to be included in the Registration Statement or the
Prospectuses or otherwise) has been complied with in all material respects
or responded to in a manner the Company believes to be acceptable to the
Commission or such securities authority.
(k) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as described
therein, there has not been any change in the assets or properties,
business, results of operations, prospects or financial condition of the
Company or any Subsidiary, whether or not arising from transactions in the
ordinary course of business which could have a Material Adverse Effect;
neither the Company nor any Subsidiary has sustained any loss or
interference with its assets, businesses or properties from fire,
explosion, earthquake, flood or other calamity, whether or not covered by
insurance, or from any labor dispute or any court or legislative or other
governmental action, order or decree which could have a Material Adverse
Effect; and since the date of the latest balance sheet included in the
Registration Statement and the Prospectus, except as reflected therein,
neither the Company nor any Subsidiary has undertaken any liability or
obligation, direct or contingent, except (i) for liabilities or obligations
undertaken in the ordinary course of business, (ii) liabilities or
obligations that are not material to the business, operations or financial
condition of the Company and its subsidiaries taken as a whole, and (iii)
as disclosed in the Registration Statement and the Prospectus.
(l) Each agreement listed in the Exhibits to the Registration
Statement is in full force and effect and is valid and enforceable by the
Company or Subsidiary, as the case may be, in accordance with its terms,
assuming the due authorization thereof by each of the other parties
thereto, except (A) as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by general
equitable principles. Except as disclosed in the Prospectus, none of the
Company, any
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Subsidiary or to the best of the Company's knowledge, any other party is in
default in the observance or performance of any term or obligation to be
performed by it under any such agreement, and no event has occurred which
with notice or lapse of time or both would constitute such a default, which
default or event would have a Material Adverse Effect. No default exists,
and no event has occurred which with notice or lapse of time or both would
constitute a default, in the due performance and observance of any term,
covenant or condition, by the Company or any Subsidiary of any other
indenture, mortgage, deed of trust, note or any other agreement or
instrument to which the Company or any Subsidiary is a party or by which it
or its properties or businesses may be bound or affected, which default or
event would have a Material Adverse Effect.
(m) Neither the Company nor any Subsidiary is in violation of any
term or provision of its charter or by-laws or of any franchise, license,
permit, judgment, decree, order, statute, rule or regulation, where the
consequences of such violation would have a Material Adverse Effect.
(n) Neither the execution, delivery and performance of this Agreement
by the Company nor the consummation of any of the transactions contemplated
hereby (including, without limitation, the issuance and sale by the Company
of the Shares to be sold by the Company and the Option Selling Stockholders
of the Shares to be sold by them) will give rise to a right to terminate or
accelerate the due date of any payment due under, or conflict with or
result in the breach of any term or provision of, or constitute a default
(or an event which with notice or lapse of time or both would constitute a
default) under, or require any consent or waiver under, or result in the
execution or imposition of any lien, charge or encumbrance upon any
properties or assets of the Company or any Subsidiary pursuant to the terms
of, any indenture, mortgage, deed of trust or other agreement or instrument
to which the Company or any Subsidiary is a party or by which it or any its
properties or businesses is bound, or any franchise, license, permit,
judgment, decree, order, statute, rule or regulation applicable to the
Company or any Subsidiary or violate any provision of the charter or
by-laws of the Company or any Subsidiary, except for such consents or
waivers which have already been obtained in writing and are in full force
and effect, which could have a Material Adverse Effect or prevent the
consummation of any of the transactions contemplated hereby.
(o) The Company has authorized and outstanding capital stock as set
forth under the caption "Capitalization" in the Prospectus. All of the
outstanding shares of Common Stock, including the Shares to be purchased by
the Underwriters
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from the Option Selling Stockholders at the time of sale to the
Underwriters, have been duly and validly issued and are fully paid and
nonassessable and none of them was issued in violation of any preemptive or
other similar right. The Shares, when issued (in the case of Shares to be
sold by the Company) and sold pursuant to this Agreement, will be duly and
validly issued, fully paid and nonassessable and none of them will be
issued in violation of any preemptive or other similar right. Except as
disclosed in the Registration Statement and the Prospectus, there is no
outstanding option, warrant or other right calling for the issuance of, and
no commitment, material plan or arrangement to issue, any share of capital
stock of the Company or any security convertible into, or exercisable or
exchangeable for, such capital stock. The Common Stock and the Shares
conform in all material respects to all statements in relation thereto
contained in the Registration Statement and the Prospectus.
(p) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as described
or referred to therein, neither the Company nor any Subsidiary has (i)
issued any securities or incurred any material liability or obligation,
direct or contingent, for borrowed money, (ii) entered into any material
transaction not in the ordinary course of business or (iii) declared or
paid any dividend or made any distribution on any shares of its capital
stock or redeemed, purchased or otherwise acquired or agreed to redeem,
purchase or otherwise acquire any shares of its capital stock.
(q) Except for the Shares to be sold by the Option Selling
Stockholders, no holder (except as disclosed in writing to the
Representatives) of any security of the Company or any Subsidiary
has any right which has not been waived in writing to have any security
owned by such holder included in the Registration Statement or any right
which has not been waived in writing to demand registration of any security
owned by such holder during the period ending 180 days from this Agreement.
The Company has obtained from all directors and executive officers of the
Company and certain other employee stockholders listed on Schedule III
hereto, who together hold 3,763,765 shares of Common Stock and holders of
options and warrants exercisable for an aggregate of 657,000 shares of
Common Stock (of which 91,300 shares are currently vested), their written
agreement that for a period of at least 180 days from the date of this
Agreement (so long as such persons are employees of the Company) they will
not, without the prior written consent of the Representatives, offer for
sale, sell, distribute, grant any option for the sale of or otherwise
encumber or dispose of, directly or indirectly, or exercise any
registration rights with respect to, any shares of capital stock of the
Company owned by them (other than the Option Shares).
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(r) All necessary corporate action has been duly and validly taken by
the Company to authorize the execution, delivery and performance of this
Agreement and the issuance and sale of the Shares. This Agreement has been
duly and validly executed and delivered by the Company and constitutes and
will constitute the legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms, except (A) as
the enforceability thereof may be limited to bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement
of creditors' rights generally and by general equitable principles and (B)
with respect to this Agreement, to the extent that rights to indemnify or
contribution under this Agreement may be limited by federal and state
securities laws or the public policy underlying such laws.
(s) The Company and each of the Subsidiaries is conducting its
business in compliance with all applicable laws, rules and regulations of
the jurisdictions in which it is conducting business, including, without
limitation, all applicable local, state and federal employment, truth-in-
advertising, franchising, immigration and environmental laws and
regulations, except where the failure to be so in compliance would not have
a Material Adverse Effect.
(t) No transaction has occurred between or among the Company, any
Subsidiary and any of their respective officers or directors or any
affiliate or affiliates of any such officer or director that is required to
be described in and is not described in the Registration Statement and the
Prospectus.
(u) The Company has not taken, nor will it take, directly or
indirectly, any action designed to or which might reasonably be expected to
cause or result in, or which has constituted or which might reasonably be
expected to constitute, the stabilization or manipulation of the price of
the Common Stock to facilitate the sale or resale of any of the Shares.
(v) The Company has filed all federal, state, local and foreign tax
returns which are required to be filed through the date hereof (except for
state, local or foreign tax returns the failure to file of which would not
have a Material Adverse Effect), or has received extensions thereof, and
has paid all taxes shown on such returns and
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all assessments received by it to the extent that the same are material and
have become due.
(w) Neither the Company nor any of its Subsidiaries has, directly or
indirectly, paid or delivered any fee, commission or other sum of money or
item or property, however characterized, to any finder, agent, government
official or other party, in the United States or any other country, which
is in any manner related to the business or operations of the Company and
its Subsidiaries which the Company knows or has reason to believe to have
been illegal under any Federal, state or local laws of the United States or
any other country having jurisdiction; and neither the Company nor any of
its Subsidiaries has participated, directly or indirectly, in any boycotts
or other similar practices in contravention of law affecting any of its
actual or potential customers.
(x) Neither the Company nor any of its Subsidiaries has any knowledge
of any actionable violation of any Federal, state or local law relating to
employment and employment practices, discrimination in the hiring,
promotion or pay of employees nor any applicable wage or hour laws, nor any
provisions of the Employee Retirement Income Security Act of 1974 ("ERISA")
or the rules and regulations promulgated thereunder. There is (A) no
significant unfair labor practice complaint pending against the Company or
any of its Subsidiaries or, to the best knowledge of the Company,
threatened against either of them, before the National Labor Relations
Board or any state or local labor relations board, and no significant
grievance or significant arbitration proceeding arising out of or under any
collective bargaining agreement is pending against the Company or any of
its Subsidiaries or, to the best knowledge of the Company, threatened
against any of them, (B) no labor strike, dispute, slowdown or stoppage
("Labor Dispute") in which the Company or any of it Subsidiaries is
involved nor, to the best knowledge of the Company, is any Labor Dispute
imminent, other than routine disciplinary and grievance matters, the
Company is not aware of any existing or imminent Labor Dispute by the
employees of any of its principal suppliers, manufacturers or contractors
and (C) no question concerning union representation within the meaning of
the National Labor Relations Act existing with respect to the employees of
the Company or any of its Subsidiaries and, to the best knowledge of the
Company, no union organizing activities are taking place.
(y) Neither the Company nor the Subsidiary is an "investment company"
or a company "controlled" by an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
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(z) The Company and each of the Subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance
that (1) transactions are executed in accordance with management's general
or specific authorizations; (2) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset accountability; AND
(3) access to assets is permitted only in accordance with management's
general or specific authorization.
(aa) The Company's Restated Certificate of Incorporation, in the form
of Exhibit A hereto (the "Amended and Restated Certificate"), is in full
force and effect.
(ab) The Shares have been approved for quotation on the National
Association of Securities Dealers Automated Quotation ("Nasdaq") National
Market, subject to official notice of issuance.
(ac) The Company meets, and on the Effective Date of the Registration
Statement and on each Closing Date will meet, the conditions for use of
Form S-2 under the Securities Act and the Rules.
(ad) The board of directors of the Company does not have any
arrangement, commitment or agreement that, if consummated, would result in
a "Change of Control" as that term is defined in any agreement of the
Company or any Subsidiary.
(ae) The Company has complied with all of the requirements and filed
the required forms as specified in Florida Statutes Section 517.075.
(B) Each Option Selling Stockholder, severally and not jointly,
represents and warrants as to itself only to each Underwriter that:
(a) This Agreement and such Option Selling Stockholders' Custody
Agreement and Power of Attorney (the "Custody Agreement and Power of
Attorney") among such Option Selling Stockholder and Xxxxxxx X. Xxxxxx and
Xxxxxx Xxxxxxxx, as attorneys-in-fact (the "Attorneys-in-Fact"),
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and Xxxxxx Xxxxxxxx, as custodian (the "Custodian"), have been duly and
validly executed and delivered by each such selling stockholder and, in the
case of this Agreement, assuming the due execution and delivery of this
Agreement by the other parties hereto, each constitute the legal, valid and
binding obligation of such selling stockholder, enforceable against such
selling stockholder in accordance with their respective terms, except (i)
as the enforceability hereof and thereof may be limited by bankruptcy,
insolvency, moratorium or other similar laws affecting the enforcement of
creditors' rights generally and by general equitable principles and (ii) to
the extent that rights to indemnity or contribution under this Agreement
may be limited by federal and state securities laws or the public policy
underlying such laws. The Attorneys-in-Fact, and each or any of them are
authorized to execute and deliver this Agreement on behalf of such Option
Selling Stockholder to determine the purchase price to be paid by the
Underwriters to such Option Selling Stockholder (subject to any pricing
limitation set forth in the Custody Agreement and Power of Attorney), as
provided in Section 1 hereof, to authorize the delivery of the Shares to be
sold by such Option Selling Stockholder hereunder, to accept payment
therefor, and otherwise to act on behalf of such Option Selling Stockholder
in connection with this Agreement.
(b) At the Option Shares Closing Date, each Option Selling
Stockholder will have valid title to the Shares to be sold by it pursuant
to this Agreement, with the legal right and full power and authority to
enter into this Agreement and to sell, transfer and deliver such Shares
hereunder and, upon the delivery of and payment for such Shares as
contemplated hereby, and assuming that the several Underwriters have taken
delivery of such Shares in good faith and without notice of any adverse
claim, the several Underwriters will receive valid title to its ratable
share of the Shares purchased by it from the Option Selling Stockholder in
each case free and clear of all liens, encumbrances, security interests,
restrictions or claims whatsoever, except for those created or imposed by
the Underwriters.
(c) All information with respect to such Option Selling Stockholder
contained in the Registration Statement and Prospectus is true and correct
in all material respects and does not omit to state any material fact
necessary to make such information not misleading.
(d) Such Option Selling Stockholder has not taken and will not take,
directly or indirectly, any action designed to or which might reasonably be
expected to cause or result in, or which has constituted or which will
reasonably be expected to constitute, stabilization or manipulation of the
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price of the Common Stock (or any other capital stock of the Company) to
facilitate the sale or resale of any of the Shares, and other than as
permitted by the Securities Act, no Option Selling Stockholder has
distributed and will not distribute any prospectuses or other offering
materials in connection with the offering and sale of the Shares.
(e) All authorizations, approvals and consents necessary for the
execution, delivery and performance of such Option Selling Stockholder of
the Custody Agreement and Power of Attorney, the execution, delivery and
performance by or on behalf of such Option Selling Stockholder of this
Agreement, and the sale and delivery by such Option Selling Stockholder to
the Underwriters of the Shares to be sold by such Option Selling
Stockholder hereunder (other than, at the time of the execution hereof, the
issuance of the order of the Commission declaring the Registration
Statement effective and such authorizations, approvals or consents as may
be necessary under state securities laws) have been obtained and are in
full force and effect; and such Option Selling Stockholder has all
requisite right, power and authority to enter into and perform its
obligations under this Agreement and the Custody Agreement and Power of
Attorney.
(f) Such Option Selling Stockholder hereby repeats and confirms as if
set forth in full herein each of the representations, warranties and
agreements made by such Option Selling Stockholder in the Custody Agreement
and Power of Attorney and agrees that such representations, warranties and
agreements are made hereby for the benefit of, and may be relied upon by,
(i) the Representatives, the Underwriters and Xxxxxx, Xxxxx & Bockius LLP,
counsel to the Underwriters, (ii) the Company and Xxxx, Scholer, Fierman,
Xxxx & Handler, counsel to the Company, (iii) Schwartzman, Weinstock,
Garelick & Xxxx, P.C. ("SWGM"), counsel to the Option Selling Stockholders,
(iv) each other Option Selling Stockholder.
(g) The Option Selling Stockholders shall have placed (i) either (A)
shares of the Company's common stock or (B) executed exercise notices
relating to the exercise of existing stock options for shares of the
Company's common stock, together with irrevocable instructions to the
Custodian to exercise such option upon the Representatives exercising the
over-allotment option set forth in Section 1(b) hereof and (ii) executed
copies of an exchange agreement between such Option Selling Stockholder and
the Company, providing for the exchange of such shares of common stock into
shares of Common Stock in custody with the Custodian for the purpose of
effecting delivery to the Underwriters hereunder.
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5. Conditions of the Underwriters' Obligations. The obligations of
the Underwriters under this Agreement are several and not joint. The respective
obligations of the Underwriters to purchase the Shares are subject to each of
the following terms and conditions:
(a) The Registration Statement shall have become effective and the
Prospectus shall have been timely filed with the Commission in accordance
with Section 6(A)(a).
(b) No order preventing or suspending the use of any preliminary
prospectus or the Prospectus shall have been or shall be in effect and no
order suspending the effectiveness of the Registration Statement shall be
in effect and no proceedings for such purpose shall be pending before or
threatened by the Commission, and any requests for additional information
on the part of the Commission (to be included in the Registration Statement
or the Prospectus or otherwise) shall have been complied with to the
satisfaction of the Representatives as evidenced by the effectiveness of
the Registration Statement. No stop order suspending the sale of the Shares
in any jurisdiction shall have been issued and no proceeding for that
purpose shall have been commenced or shall be pending or threatened.
(c) The representations and warranties of the Company and the Option
Selling Stockholders contained in this Agreement and in the certificates
delivered pursuant to Section 5(d) and 5(e) shall be true and correct in
all material respects when made and on and as of each Closing Date as if
made on such date and the Company and the Option Selling Stockholders shall
have performed in all material respects all covenants and agreements and
satisfied all the conditions contained in this Agreement required to be
performed or satisfied by it or them at or before such Closing Date.
(d) The Representatives shall have received on each Closing Date an
Officers' Certificate, addressed to the Representatives and dated such
Closing Date, of the chief executive or chief operating officer and the
chief financial officer or chief accounting officer of the Company, to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Prospectus and this Agreement and that the
representations and warranties of the Company in this Agreement are true
and correct in all material respects on and as of such Closing Date with
the same effect as if made on such Closing Date (it being understood that
this condition is not intended to change any expressly stated date in any
such representation or warranty) and the Company has performed in all
material respects all covenants and agreements and satisfied all conditions
contained in this Agreement required to be
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performed or satisfied by it at or prior to such Closing Date.
(e) The Representatives shall have received on such Closing Date a
certificate, addressed to the Representatives and dated such Closing Date,
of each Option Selling Stockholder to the effect that such Option Selling
Stockholder has carefully examined the Registration Statement, the
Prospectus and this Agreement and that the representations and warranties
of such Option Selling Stockholder in this Agreement are true and correct
on and as of such Closing Date with the same effect as if made on such
Closing Date and such Option Selling Stockholder has performed all
covenants and agreements and satisfied all conditions contained in this
Agreement required to be performed or satisfied by such Option Selling
Stockholder at or prior to such Closing Date.
(f) (i) The Representatives shall have received at the time this
Agreement is executed and on each Closing Date a letter or letters signed
by Ernst & Young LLP, addressed to the Representatives and dated,
respectively, the date of this Agreement and each such Closing Date, in
form and substance satisfactory to the Representatives, confirming that
they are independent accountants within the meaning of the Securities Act
and the Rules, that the response to Item 10 of the Registration Statement
is correct insofar as it relates to them and stating in effect that:
(A) in their opinion the audited financial statements and
financial statement schedules included and incorporated by reference
in the Registration Statement and the Prospectus and reported on by
them comply as to form in all material respects with the applicable
accounting requirements of the Securities Act and the Rules;
(B) on the basis of a reading of the amounts included in the
Registration Statement and the Prospectus under the headings "Summary
Selected Consolidated Financial Data", "Certain Pro Forma Data",
"Selected Consolidated Financial Data," and "Certain Pro Forma
Information" carrying out certain procedures (but not an examination
in accordance with generally accepted auditing standards) which would
not necessarily reveal matters of significance with respect to the
comments set forth in such letter, a reading of the minutes of the
meetings of the stockholders and directors of the Company, and
inquiries of certain officials of the Company who have responsibility
for financial and accounting matters of the Company as to transactions
and events subsequent to the date of the
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latest audited financial statements, nothing came to their attention
which caused them to believe that:
1. the unaudited financial statements as of and for the
nine months ended September 30, 1995 included in the Registration
Statement (i) do not comply in form in all material respects with
the applicable accounting requirements of the Securities Act and
the Rules and (ii) are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent
with that of the audited financial statements; or
2. (x) with respect to the Company there were, at a
specified date not more than five business days prior to the date
of the letter, any changes in the capital stock, increase in
long-term debt, or any decrease in consolidated net assets or
stockholders' equity of the consolidated companies, as compared
with the amounts shown on the Company's unaudited September 30,
1995 balance sheet included in the Registration Statement, or (y)
for the period from September 30, 1995 to such specified date not
more than five business days prior to the date of the letter,
there were any decrease, as compared with the corresponding
period in the preceding year, in consolidated net revenues or in
the total or per-share amounts of consolidated net income in
which case the Company shall deliver to the Representatives a
letter containing an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Representatives or is set forth in or
contemplated by the Registration Statement; and
(C) they have performed certain other procedures as a result of
which they determined that certain information of an accounting,
financial or statistical nature (which is limited to accounting,
financial or statistical information derived from the general
accounting records of the Company) set forth in and incorporated by
reference in the Registration Statement and the Prospectus and
reasonably specified by the Representatives agrees with the accounting
records of the Company, or in analyses prepared by the Company from
its accounting records.
(ii) The Representatives shall have received at the time this
Agreement is executed and on each Closing Date a letter signed by Price
Waterhouse LLP, addressed to the Representatives and dated, respectively,
the date of this
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Agreement and each Closing Date in form and substance satisfactory to the
Representatives.
References to the Registration Statement and the Prospectus in this paragraph
(f) are to such documents as amended and supplemented at the date of the letter.
Notwithstanding the foregoing, any changes noted in item (B)(2) above that are
not material to the business, operation or financial condition of the Company
and its subsidiaries taken as a whole, shall be deemed not to be a failure to
comply with the condition contained in this subsection (f).
(g) The Representatives shall have received on each Closing Date from
(i) Xxxx, Scholer, Fierman, Xxxx & Handler, counsel for the Company, (ii)
Xxxxxxx Xxxxxx, Esq., in-house counsel to the Company, and (iii)
________________, foreign counsel to the Company, an opinion, in each case
addressed to the Representatives and dated such Closing Date, substantially
in the form attached hereto as Exhibit B, Exhibit C, and Exhibit D,
respectively.
(h) The Representatives shall have received on the Option Shares
Closing Date from SWGH, counsel for each of the Option Selling
Stockholders, an opinion, addressed to the Representatives and dated such
Closing Date, and stating in effect that:
(A) If not an individual, such Option Selling Stockholder, as
the case may be, has been duly organized, validly existing and in good
standing under the laws of the state of the jurisdiction of its
organization. Such Option Selling Stockholder has all requisite power
and authority (corporate, partnership or otherwise) and all necessary
authorizations, approvals, consents, orders, licenses, certificates
and permits to enter into, deliver and perform this Agreement and the
Custody Agreement and Power of Attorney, and to sell the Shares to be
sold by it hereunder, other than those required under the Securities
Act and state and foreign Blue Sky laws. This Agreement, the Custody
Agreement and Power of Attorney, have each been duly and validly
authorized, executed and delivered by such Option Selling Stockholder
and constitute the legal and valid obligation of such Option Selling
Stockholder.
(B) No consent, approval, authorization or order of any federal
or state court or governmental agency or body is required for the
performance of this Agreement and the Custody Agreement and Power of
Attorney, by such Option Selling Stockholder or the sale of the
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Shares to be sold by such Option Selling Stockholder, except such as
have been or will be obtained under the Securities Act and such as may
be required under state securities or Blue Sky laws in connection with
the purchase and distribution of such Shares by the several
Underwriters (as to which such counsel need express no opinion) and
such as may be required under the rules of the National Association of
Securities Dealers, Inc. with respect to the underwriting arrangements
reflected in this Agreement (as to which such counsel need express no
opinion).
(C) To the best of such counsel's knowledge, there is no
litigation or governmental or other proceeding or investigation before
any court or before or by any public body or board pending or
threatened against, or involving the assets, properties or business of
such Option Selling Stockholder which might have a material adverse
effect upon the ability of such stockholder to perform its obligations
under this Agreement.
(D) Upon delivery by the Option Selling Stockholder to the
several Underwriters of certificates representing the Shares being
sold hereunder by such Option Selling Stockholder and the payment by
the Underwriters of the purchase price therefore, assuming the
Underwriters take delivery of such Shares in good faith and without
notice of any adverse claim, each of the Underwriters will receive
valid title to the ratable share of the Shares purchased by it from
the Option Selling Stockholders in each case, free and clear of any
liens, encumbrances, security interests and claims whatsoever, except
for those created or imposed by the Underwriters.
(E) None of the execution, delivery and performance of this
Agreement, the sale of the Shares by such Option Selling Stockholder,
nor the performance of any of such Option Selling Stockholder's
obligations pursuant to this Agreement will (i) to the best knowledge
of such counsel, conflict with, result in a breach of, or constitute a
default under the terms of any material indenture or other agreement
or instrument to which such Option Selling Stockholder is a party or
bound, or constitute a default under, any applicable statute, rule or
regulation to which such Option Selling Stockholder is subject, or to
which any of the material properties of such Option Selling
Stockholder is subject, or order of any court or governmental agency
or body having jurisdiction over such Option Selling Stockholder or
any of its material properties or (ii) violate any of the provisions
of the charter or
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by-laws of or other organizational documents of such stockholder as in
effect on the date of the opinion (unless such stockholder is an
individual).
Notwithstanding anything herein to the contrary, counsel to
the Option Selling Stockholders shall not be required to opine as to
matters relating to compliance or filings required by any applicable
Federal or state securities laws.
To the extent deemed advisable by such counsel, they may rely as to
matters of fact on certificates of responsible officers of the Company, the
Option Selling Stockholders and public officials and with respect to the opinion
that this Agreement constitutes the legal and valid obligation of each of the
Option Selling Stockholders, counsel not admitted to practice in the State of
New York may assume without any inquiry that the law of the jurisdiction where
such counsel is admitted to practice is identical to the law of State of New
York without regard to conflicts of laws. Copies of such certificates shall be
furnished to the Representatives and counsel for the Underwriters.
(i) All proceedings taken in connection with the sale of the Firm
Shares and the Option Shares as herein contemplated shall be reasonably
satisfactory in form and substance to the Representatives and their counsel
and the Underwriters shall have received from Xxxxxx, Xxxxx & Bockius LLP a
favorable opinion, addressed to the Representatives and dated such Closing
Date, with respect to the Shares, the Registration Statement and the
Prospectus and such other related matters as the Representatives may
reasonably request, and the Company and the Option Selling Stockholders
shall have furnished to Xxxxxx, Xxxxx & Xxxxxxx LLP such documents as they
may reasonably request for the purpose of enabling them to pass upon such
matters.
(j) The Representatives shall have received on each Closing Date a
certificate, including exhibits thereto, addressed to the Representatives
and dated such Closing Date, of the Secretary or an Assistant Secretary of
the Company, signed in such officer's capacity as such officer, as to the
(i) certificate of incorporation and bylaws of the Company, (ii)
resolutions authorizing the execution and delivery of the Registration
Statement, this Agreement and the performance of the transactions
contemplated by this Agreement, the Registration Statement, the Prospectus
and the offering of the Shares and (iii) incumbency of the person or
persons authorized to execute and deliver the Registration Statement, this
Agreement and any other documents contemplated by the offering of the
Shares.
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(k) The Representatives shall have received on each Closing Date
certificates of the Secretaries of States (or comparable officials) where
the Company and each Subsidiary is incorporated and doing business as to the
good standing of the Company and each Subsidiary, listing all charter
documents on file, qualification of the Company and each Subsidiary to do
business as a foreign corporation, payment of taxes and filing of annual
reports. In addition, the Representatives shall have received copies of all
charter documents of the Company and each Subsidiary certified by the
Secretary of State of the state of incorporation or organization.
(l) The Representatives shall have received on each Closing Date a
certificate, addressed to the Representatives, and dated such Closing Date,
of an executive officer of the Company to the effect that the signer of such
certificate has reviewed and understands the provisions of Section 517.075
of the Florida Statutes, and represents that the Company has complied, and
at all times will comply, with all provisions of Section 517.075 and
further, that as of such Closing Date, neither the Company nor any of its
affiliates does business with the government of Cuba or with any person or
affiliate located in Cuba.
(m) At each Closing Date, the Shares shall have been approved for
quotation on the Nasdaq National Market, subject to official notice of
issuance.
Notwithstanding the foregoing, the respective obligation of the Underwriters to
purchase the Firm Shares shall not be subject to (i) the representations and
warranties and covenants of the Option Selling Stockholder contained in Section
5(c) above, (ii) Section 5(e) above, (iii) Section 5(h) above, and (iv) the
proceeding taken in connection with the sale of the Option Shares as described
in Section 5(i) above.
6. Covenants of the Company and the Selling Stockholders. (A) The
Company, and where specifically stated to be a covenant of the Option Selling
Stockholders, each of the Option Selling Stockholders, covenants and agrees as
follows:
(a) The Company shall prepare the Prospectus in a form approved by the
Representatives and file such Prospectus (or a term sheet as permitted by
Rule 434(b) under the Securities Act) pursuant to Rule 424(b) under the
Securities Act not later than the Commission's close of business on the
second business day following the execution and delivery of this Agreement,
or, if such second business day would be more than fifteen business days
after the Effective Date of the Registration Statement or any post-effective
amendment thereto, such earlier date as would permit such Prospectus to be
filed without filing a post-effective amendment as set
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forth in Rule 430A(a)(3) under the Securities Act, and shall promptly advise
the Representatives (i) when the Registration Statement shall have become
effective, (ii) when any amendment thereof shall have become effective,
(iii) of any request by the Commission for any amendment of the Registration
Statement or the Prospectus or for any additional information, (iv) of the
prevention or suspension of the use of any preliminary prospectus or the
Prospectus or of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by the
Company of any notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction or the initiation
or threatening of any proceeding for such purpose. The Company shall not
file any amendment of the Registration Statement or amendment or supplement
to the Prospectus unless the Company has furnished the Representatives a
copy for its review prior to filing and shall not file any such proposed
amendment or supplement to which the Representatives reasonably object. The
Company shall use its best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Shares is
required to be delivered under the Securities Act and the Rules, any event
occurs as a result of which the Prospectus as then amended or supplemented
would include any 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 shall be
necessary to amend or supplement the Prospectus to comply with the
Securities Act or the Rules, the Company promptly shall (i) notify the
Representatives and (ii) prepare and file with the Commission, subject to
the second sentence of paragraph (a) of this Section 6(A), an amendment or
supplement which shall correct such statement or omission or an amendment
which shall effect such compliance.
(c) The Company shall make generally available to its security holders
and to the Representatives as soon as practicable, but not later than 45
days after the end of the 12-month period beginning at the end of the fiscal
quarter of the Company during which the Effective Date occurs (or 90 days if
such 12-month period coincides with the Company's fiscal year), an earnings
statement (which need not be audited) of the Company, covering such 12-month
period, which shall satisfy the provisions of Section 11(a) of the
Securities Act or Rule 158 of the Rules.
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(d) The Company shall furnish to the Representatives and counsel for
the Underwriters, without charge, signed copies of the Registration
Statement (including all exhibits thereto and amendments thereof) and to
each other Underwriter a copy of the Registration Statement (without
exhibits thereto) and all amendments thereof and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Securities Act
or the Rules, as many copies of any preliminary prospectus and the
Prospectus and any amendments thereof and supplements thereto as the
Representatives may reasonably request.
(e) The Company shall cooperate with the Representatives and their
counsel in endeavoring to qualify the Shares for offer and sale under the
Securities or "Blue Sky" laws of such jurisdictions as the Representatives
may designate and shall maintain such qualifications in effect so long as
required for the initial distribution of the Shares by the Underwriters;
provided, however, that neither the Company nor any Option Selling
Stockholder shall be required in connection therewith to qualify as a
foreign corporation or to execute a general consent to service of process in
any jurisdiction or subject itself to taxation as doing business in any
jurisdiction in which it is not otherwise subject.
(f) For a period of two years after the date of this Agreement,
the Company shall supply to the Representatives, and to each other
Underwriter who may so request in writing, copies of such financial
statements and other periodic and special reports as the Company may from
time to time distribute generally to the holders of any class of its capital
stock and furnish to the Representatives a copy of each annual or other
report it shall be required to file with the Commission.
(g) Without the prior written consent of the Representatives, for a
period of 180 days after the date of this Agreement, neither the Company nor
the Option Selling Stockholders shall issue, offer to sell, sell, distribute
or register with the Commission, or otherwise encumber or dispose of,
directly or indirectly, any equity securities of the Company (or any
securities convertible into, exercisable for or exchangeable for equity
securities of the Company), provided however, that the Company may issue
shares of Common Stock or Class B Common Stock, as the case may be, (i) in
connection with the offering of the Firm Shares and the Option Shares,
(ii) pursuant to any employee benefit plan, (iii) upon conversion of the
Notes (as defined in the Prospectus) or exercise of options or warrants
outstanding on the date hereof, (iv) upon conversion of shares of Common
Stock into Class B Common Stock pursuant to the terms of the Company's
Restated Certificate of Incorporation (following amendment
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to the Company's Restated Certificate of Incorporation as contemplated by
the Prospectus) (v) pursuant to a merger, acquisition or other business
combination in exchange for stock or assets in any such merger, acquisition
or combination or in a private placement to one or more strategic investors
(as determined in good faith by the Company's Board of Directors) or (vi)
pursuant to an existing agreement with a specified individual in an amount
not to exceed 15,000 Shares.
(h) On or before completion of this offering, the Company shall make
all filings required under applicable securities laws and by the Nasdaq
National Market (including any required registrations and filings under the
Exchange Act) in a timely manner.
(i) The Company shall use the proceeds from the sale of the Shares in
the manner described in the Prospectus under the caption "Use of Proceeds."
(j) The Company will use its best efforts to do and perform all things
required to be done and performed under this Agreement by it prior to or
after each Closing Date and to satisfy all conditions precedent to the
delivery of the Shares.
(B) The Company agrees to pay, or reimburse if paid by the Representatives,
whether or not the transactions contemplated hereby are consummated or this
Agreement is terminated, all costs and expenses of the Company and the Option
Selling Stockholders incident to the public offering of the Shares and the
performance of the obligations of the Company and the Option Selling
Stockholders under this Agreement including those relating to (i) the
preparation, printing, filing and distribution of the Registration Statement
including all exhibits thereto, each preliminary prospectus, the Prospectus, all
amendments and supplements to the Registration Statement and the Prospectus, and
the printing, filing and distribution of this Agreement; (ii) the preparation
and delivery of certificates for the Shares to the Underwriters; (iii) the
registration or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of the various jurisdictions referred to in Section
6(A)(e), including the reasonable fees and disbursements of counsel for the
Underwriters in connection with such registration and qualification and the
preparation, printing, distribution and shipment of preliminary and
supplementary Blue Sky memoranda; (iv) the furnishing (including costs of
shipping and mailing) to the Representatives and to the Underwriters of copies
of each preliminary prospectus, the Prospectus and all amendments or supplements
to the Prospectus, and of the several documents required by this Section to be
so furnished, as may be reasonably requested for use in connection with the
offering and sale of the Shares by the Underwriters or by dealers to whom Shares
may be sold; (v) the filing fees of the National Association of Securities
Dealers, Inc. in connection with its review of the
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terms of the public offering; (vi) the furnishing (including costs of shipping
and mailing) to the Representatives and to the Underwriters of copies of all
reports and information required by Section 6(A)(f); and (vii) inclusion of the
Shares for quotation on the Nasdaq National Market.
(C) The Company and each Option Selling Stockholder agrees that it
will pay (i) all fees and expenses of such stockholder's counsel and (ii) all
stock transfer taxes, stamp duties and other similar taxes, if any, payable (A)
upon the sale or delivery of the Shares to be sold by such stockholder to the
Underwriters, (B) upon the purchase by the Underwriters of the Shares to be sold
by such stockholder, or (C) in connection with the consummation by such
stockholder of any of its obligations under this Agreement. The Company and
the Option Selling Stockholders may agree, as among themselves and without
limiting the rights and the Underwriters under this Agreement, as to the payment
of such expenses.
(D) Except as provided in (B) and (C) above, the Underwriters shall
pay their own costs and expenses.
7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act against
any and all losses, claims, damages, liabilities and expenses, joint or
several (including any reasonable investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claim asserted), to which they, or any of
them, may become subject under the Securities Act, the Exchange Act or other
federal or state law or regulation, at common law or otherwise, insofar as
such losses, claims, damages or liabilities arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact
contained in any preliminary prospectus, the Registration Statement or the
Prospectus or any amendment thereof or supplement thereto, or arise out of
or are based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that (i) such
indemnity shall not inure to the benefit of any Underwriter (or any person
controlling such Underwriter) on account of any losses, claims, damages,
liabilities or expenses arising from the sale of the Shares to any person by
such Underwriter if such untrue statement or omission or alleged untrue
statement or omission was made in such preliminary prospectus, the
Registration Statement
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or the Prospectus, or such amendment or supplement, in reliance upon and in
conformity with information furnished in writing to the Company by the
Representatives on behalf of any Underwriter specifically for use therein,
and (ii) the Company will not be liable for such losses, claims, damages,
liabilities and expenses suffered by such Underwriter resulting from an
untrue statement or omission or alleged untrue statement or omission that
was contained or made in any preliminary prospectus and that was corrected
in the Prospectus if, and only if, such Underwriter failed to deliver a copy
of the Prospectus to such person with or pursuant to the confirmation of the
sale of the Shares. The Company may agree, as among themselves and without
limiting the rights of the Underwriters under this Agreement, as to their
respective amounts of such liability for which they each shall be
responsible. This indemnity agreement will be in addition to any liability
which the Company may otherwise have.
(b) Each Option Selling Stockholder, severally and not jointly,
agrees to indemnify and hold harmless each Underwriter and each person,
if any, who controls any Underwriter within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act to the same extent
as the foregoing indemnity from the Company to each Underwriter,
with respect to any losses, claims, damages, liabilities and expenses
arising out of or relating to the breach of any representation or warranty
made by such Option Selling Stockholder hereunder.
(c) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, each person, if any, who controls the
Company within the meaning of Section 15 of the Securities Act or Section
20 of the Exchange Act, each director of the Company, and each officer of
the Company who signs the Registration Statement, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only
insofar as such losses, claims, damages or liabilities arise out of or are
based solely upon any untrue statement or omission or alleged untrue
statement or omission which was made in any preliminary prospectus, the
Registration Statement or the Prospectus, or any amendment thereof or
supplement thereto, contained in the last paragraph of the cover page, in
the paragraphs relating to stabilization and passive market making on the
inside front cover page of the Prospectus and the statements with respect to
the public offering of the Shares in paragraphs three and four under the
caption "Underwriting" in the Prospectus; provided, however, that the
obligation of each Underwriter to indemnify the Company (including any
controlling person, director or officer thereof) shall be limited to the net
proceeds received by the Company from such Underwriter.
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(d) Any party that proposes to assert the right to be indemnified
under this Section will, promptly after receipt of notice of commencement of
any action, suit or proceeding against such party in respect of which a
claim is to be made against an indemnifying party or parties under this
Section, notify each such indemnifying party of the commencement of such
action, suit or proceeding, enclosing a copy of all papers served. No
indemnification provided for in Section 7(a) or 7(b) shall be available to
any party who shall fail to give notice as provided in this Section 7(c) if
the party to whom notice was not given was unaware of the proceeding to
which such notice would have related and was prejudiced by the failure to
give such notice, but the omission so to notify such indemnifying party of
any such action, suit or proceeding shall not relieve it from any liability
that it may have to any indemnified party for contribution or otherwise than
under this Section. In case any such action, suit or proceeding shall be
brought against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be entitled
to participate in, and, to the extent that it shall wish, jointly with any
other indemnifying party similarly notified, to assume the defense thereof,
with counsel reasonably satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party of its election
so to assume the defense thereof and the approval by the indemnified party
of such counsel, the indemnifying party shall not be liable to such
indemnified party for any legal or other expenses, except as provided below
and except for the reasonable costs of investigation subsequently incurred
by such indemnified party in connection with the defense thereof. The
indemnified party shall have the right to employ its counsel in any such
action, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the employment of counsel by such
indemnified party has been authorized in writing by the indemnifying
parties, (ii) the indemnified party shall have reasonably concluded that
there may be a conflict of interest between the indemnifying parties and the
indemnified party in the conduct of the defense of such action (in which
case the indemnifying parties shall not have the right to direct the defense
of such action on behalf of the indemnified party) or (iii) the indemnifying
parties shall not have employed counsel to assume the defense of such action
within a reasonable time after notice of the commencement thereof, in each
of which cases the fees and expenses of counsel shall be at the expense of
the indemnifying parties. In no event shall the indemnifying parties be
liable for the expense of more than one separate counsel (in addition to
local counsel) in any one action. An indemnifying party shall not be liable
for any settlement of any action, suit, proceeding or claim effected without
its written consent.
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8. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnification provided for in
Section 7 is due in accordance with its terms but for any reason is held to be
unavailable from the Company or the Underwriters, the Company and the
Underwriters shall contribute to the aggregate losses, claims, damages,
liabilities and expenses (including any investigation, legal and other expenses
reasonably incurred in connection with, and any amount paid in settlement of,
any action, suit or proceeding or any claims asserted, but after deducting any
contribution received by the Company from persons other than the Underwriters,
such as persons who control the Company within the meaning of the Securities
Act, officers of the Company who signed the Registration Statement and directors
of the Company, who may also be liable for contribution) to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company and the
Option Selling Stockholders on the one hand and the Underwriters on the other
from the offering of the Shares or, if such allocation is not permitted by
applicable law or indemnification is not available as a result of the
indemnifying party not having received notice as provided in Section 7 hereof,
in such proportion as is appropriate to reflect not only the relative benefits
referred to above but also the relative fault of the Company and the Option
Selling Stockholders on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company the
Option Selling Stockholders and the Underwriters shall be deemed to be in the
same proportion as (x) the total proceeds from the offering (net of underwriting
discount and commissions but before deducting expenses) received by the Company
and the Option Selling Stockholders, as set forth in the table on the cover page
of the Prospectus, bear to (y) the underwriting discount and commissions
received by the Underwriters, as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company and the Underwriters shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact related to information supplied by the
Company, the Option Selling Stockholders or the Underwriters and the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this Section 8
were determined by pro rata allocation (even if the Underwriters were treated as
one entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to above. Notwithstanding
the provisions of this Section 8, in no case shall any Underwriter (except as
may be provided in the Agreement Among Underwriters) be liable or responsible
for any amount in excess of the underwriting discount
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and commissions applicable to the Shares purchased by such Underwriter
hereunder. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 8, each person, if any, who controls an Underwriter
within the meaning of Section 15 of the Securities Act or Section 20(a) of the
Exchange Act shall have the same rights to contribution as such Underwriter, and
each person, if any, who controls the Company within the meaning of the Section
15 of the Securities Act or Section 20(a) of the Exchange Act, each officer of
the Company who shall have signed the Registration Statement and each director
of the Company shall have the same rights to contribution as the Company subject
in each case to clauses (i), and (ii) in the immediately preceding sentence of
this Section 8. Any party entitled to contribution will, promptly after receipt
of notice of commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against another party
or parties under this Section, notify such party or parties from whom
contribution may be sought, but the omission so to notify such party or parties
from whom contribution may be sought shall not relieve the party or parties from
whom contribution may be sought from any other obligation it or they may have
hereunder or otherwise than under this Section. No party shall be liable for
contribution with respect to any action, suit, proceeding or claim settled
without its written consent. The Underwriter's obligations to contribute
pursuant to this Section 8 are several in proportion to their respective
underwriting commitments and not joint.
9. Termination. This Agreement may be terminated with respect to the
Shares to be purchased on a Closing Date by the Representatives by notifying the
Company at any time
(a) in the sole discretion of the Representatives at or before any
Closing Date: (i) if on or prior to such date, any domestic or
international event or act or occurrence has materially disrupted, or in the
opinion of the Representatives will in the future materially disrupt, the
securities markets; (ii) if there has occurred any new outbreak or material
escalation of hostilities or other calamity or crisis the effect of which on
the financial markets of the United States is such as to make it, in the
judgment of the Representatives, inadvisable to proceed with the offering;
(iii) if there shall be such a material adverse change in general financial,
political or economic conditions or the effect of international conditions
on the financial markets in the United States is such as to make it, in the
judgment of the Representatives, inadvisable or impracticable to market the
Shares; (iv) if trading in the Shares has been suspended by the Commission
or trading generally on the New York Stock Exchange, Inc.,
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the American Stock Exchange, Inc. or the NASDAQ National Market has been
suspended or limited, or minimum or maximum ranges for prices for securities
shall have been fixed, or maximum ranges for prices for securities have been
required, by said exchanges or by order of the Commission, the National
Association of Securities Dealers, Inc., or any other governmental or
regulatory authority; or (v) if a banking moratorium has been declared by
any state or federal authority, or
(b) at or before any Closing Date, that any of the conditions
specified in Section 5 shall not have been fulfilled when and as required by
this Agreement.
If this Agreement is terminated pursuant to any of its provisions,
neither the Company nor any Option Selling Stockholder shall be under any
liability to any Underwriter, and no Underwriter shall be under any liability to
the Company or any Option Selling Stockholder, except that (y) if this Agreement
is terminated by the Representatives or the Underwriters because of any failure,
refusal or inability on the part of the Company or an Option Selling Stockholder
to comply with the terms or to fulfill any of the conditions of this Agreement,
the Company will reimburse the Underwriters for all out-of-pocket expenses
(including the reasonable fees and disbursements of their counsel) incurred by
them in connection with the proposed purchase and sale of the Shares or in
contemplation of performing their obligations hereunder and (z) no Underwriter
who shall have failed or refused to purchase the Shares agreed to be purchased
by it under this Agreement, without some reason sufficient hereunder to justify
cancellation or termination of its obligations under this Agreement, shall be
relieved of liability to the Company, the Option Selling Stockholders or to the
other Underwriters for damages occasioned by its failure or refusal.
10. Substitution of Underwriters. If one or more of the Underwriters
shall fail (other than for a reason sufficient to justify the cancellation or
termination of this Agreement under Section 9) to purchase on any Closing Date
the Shares agreed to be purchased on such Closing Date by such Underwriter or
Underwriters, the Representatives may find one or more substitute underwriters
to purchase such Shares or make such other arrangements as the Representatives
may deem advisable or one or more of the remaining Underwriters may agree to
purchase such Shares in such proportions as may be approved by the
Representatives, in each case upon the terms set forth in this Agreement. If no
such arrangements have been made by the close of business on the business day
following such Closing Date,
(a) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall not exceed 10% of the Shares that
all the Underwriters are obligated to purchase on such Closing Date, then
each of the
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nondefaulting Underwriters shall be obligated to purchase such Shares on the
terms herein set forth in proportion to their respective obligations
hereunder; provided, that in no event shall the maximum number of Shares
that any Underwriter has agreed to purchase pursuant to Section 1 be
increased pursuant to this Section 10 by more than one-ninth of such number
of Shares without the written consent of such Underwriter, or
(b) if the number of Shares to be purchased by the defaulting
Underwriters on such Closing Date shall exceed 10% of the Shares that all
the Underwriters are obligated to purchase on such Closing Date, then the
Company shall be entitled to an additional business day within which it may,
but is not obligated to, find one or more substitute underwriters reasonably
satisfactory to the Representatives to purchase such Shares upon the terms
set forth in this Agreement.
In any such case, either the Representatives or the Company shall
have the right to postpone the applicable Closing Date for a period of not more
than five business days in order that necessary changes and arrangements
(including any necessary amendments or supplements to the Registration Statement
or Prospectus) may be effected by the Representatives and the Company. If the
number of Shares to be purchased on such Closing Date by such defaulting
Underwriter or Underwriters shall exceed 10% of the Shares that all the
Underwriters are obligated to purchase on such Closing Date, and none of the
nondefaulting Underwriters or the Company shall make arrangements pursuant to
this Section within the period stated for the purchase of the Shares that the
defaulting Underwriters agreed to purchase, this Agreement shall terminate with
respect to the Shares to be purchased on such Closing Date without liability on
the part of any nondefaulting Underwriter to the Company, or any Option Selling
Stockholder and without liability on the part of the Company and the Option
Selling Stockholders, except in cases as provided in Sections 6(B), 7, 8 and 9.
The provisions of this Section shall not in any way affect the liability of any
defaulting Underwriter to the Company, the Option Selling Stockholders or the
non defaulting Underwriters arising out of such default. A substitute
underwriter hereunder shall become an Underwriter for all purposes of this
Agreement.
11. Miscellaneous. The respective agreements, representations,
warranties, indemnities and other statements of the Company or its officers, of
the Option Selling Stockholders and of the Underwriters set forth in or made
pursuant to this Agreement shall remain in full force and effect, regardless of
any investigation made by or on behalf of any Underwriter, any Option Selling
Stockholder or the Company or any of the officers, directors or controlling
persons referred to in Sections 7 and 8 hereof, and shall survive delivery of
and payment for the Shares.
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The provisions of Sections 6(B), 7, 8 and 9 shall survive the termination or
cancellation of this Agreement.
This Agreement has been and is made for the benefit of the
Underwriters, the Company and the Option Selling Stockholders and their
respective successors and assigns, and, to the extent expressed herein, for the
benefit of persons controlling any of the Underwriters, the Company or the
Option Selling Stockholders, and directors and officers of the Company and the
Option Selling Stockholders, if any, and their respective successors and
assigns, and no other person shall acquire or have any right under or by virtue
of this Agreement. The term "successors and assigns" shall not include any
purchaser of Shares from any Underwriter merely because of such purchase.
All notices and communications hereunder shall be in writing and mailed
or delivered or by telephone or telegraph if subsequently confirmed in writing,
as follows:
if to the Representatives:
c/o Oppenheimer & Co., Inc.
Xxxxxxxxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxx
if to the Company, to its agent for service as such agent's
address appears on the cover page of the Registration Statement,
if to the Option Selling Stockholders, to the address set forth in
the Custody Agreement and Power of Attorney.
This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
This Agreement may be signed in any number of counterparts, each
of which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
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Please confirm that the foregoing correctly sets forth the
agreement among us.
Very truly yours,
ALL AMERICAN COMMUNICATIONS, INC.
By:
------------------------------------
Title: President and
Chief Executive Officer
THE OPTION SELLING STOCKHOLDERS NAMED ON
SCHEDULE II HERETO
By:
------------------------------------
Attorney-in-Fact
Confirmed:
XXXXXXXXXXX & CO., INC.
XXXXXXX AND X. XXXXXXXXXXXX, INC.
Acting severally on behalf
of itself and as representative
of the several Underwriters
named in Schedule I annexed hereto.
By Xxxxxxxxxxx & Co., Inc.
By
---------------------------------
Title: Managing Director
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SCHEDULE I
Number of
Firm Shares to
Name Be Purchased
--------------
1. Xxxxxxxxxxx & Co. Inc.
2. Xxxxxxx and S. Bleichroeder, Inc.
3. Bear, Xxxxxxx & Co., Inc.
4. Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
5. Xxxxxxx, Sachs & Co.
6. Xxxxxx Xxxxxxx & Co. Incorporated
7. Prudential Securities Incorporated
8. Xxxxxxxx Wertheim & Co. Incorporated
9. Xxxxxxxxxxx Xxxxxxx Securities Inc.
10. Xxxxxxx Xxxxx & Company
11. Xxxxxxx, Xxxxxx & Co.
12. Cruttenden Xxxx Incorporated
13. Xxxx Xxxxxxxx Incorporated
14. Xxxxxx Xxxx Incorporated
15. Gabelli & Company, Inc.
16. Xxxxxx Xxxxxx Xxxxxxxx & Co.
17. Xxxxxx & Xxxxxx, Inc.
18. Xxxxxxxxx & Company
19. Xxxxxxxxxx Xxxx & Xxxx Incorporated
20. Xxxx Xxxxx Xxxx Xxxxxx, Incorporated
21. XxXxxxxx & Company Securities, Inc.
22. Xxxxxxxxx & Xxxxxx
23. Xxxxx & Xxxxxxxxxxxx, Inc.
24. The Xxxxxxx Companies Incorporated
25. Wheat First Butcher Singer
TOTAL SHARES
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SCHEDULE II
OPTION SELLING STOCKHOLDERS
Number of Option
Name Shares to be Offered
---- --------------------
TOTAL 600,000 shares
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SCHEDULE III
DIRECTORS, OFFICERS AND STOCKHOLDERS
SIGNING LOCKUP AGREEMENT
=========================================================================
Number of Shares Number of Options
Name of Common Stock and Warrants
Subject to Lockup Subject to Lockup
-------------------------------------------------------------------------
Xxxxxxx X. Xxxxxx 1,495,995 500,000
-------------------------------------------------------------------------
Xxxxxxxx Xxxxxx 1,435,995 20,000
-------------------------------------------------------------------------
Xxxxx Xxxx 340,850 100,000
-------------------------------------------------------------------------
Xxxxxx Xxxxxxxx 315,850 70,000
-------------------------------------------------------------------------
Sydney X. Xxxxxxxx 141,975 1,200
-------------------------------------------------------------------------
R. Xxxxxxx X'Xxxxxxx 33,100 62,500
-------------------------------------------------------------------------
Xxxxx X. Mount 0 600
-------------------------------------------------------------------------
Xxxxxx Xxxx 0 600
=========================================================================
TOTAL 3,763,765 754,900
=========================================================================
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