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EXHIBIT 1.1
RADIO SYSTEMS CORPORATION
____ SHARES OF COMMON STOCK
UNDERWRITING AGREEMENT
_________ ___, 199_
▇.▇. ▇▇▇▇▇▇▇▇ & CO., L.L.C.
THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY, L.L.C.
As Representatives of the Several Underwriters
c/o ▇.▇. ▇▇▇▇▇▇▇▇ & Co.
▇.▇. ▇▇▇▇▇▇▇▇ Financial Center
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Radio Systems Corporation, a Tennessee corporation (the
"Company"), and certain shareholders of the Company identified on Schedule II
hereto (the "Selling Shareholders") propose to sell to the several underwriters
named in Schedule I hereto (the "Underwriters"), for whom you are acting as the
representatives (the "Representatives"), _________ and ________shares,
respectively (collectively, the "Firm Shares"), of the common stock, $0.01 par
value per share (the "Common Stock"), of the Company. The Company proposes to
grant to the Underwriters an option to purchase up to ________ additional
shares of Common Stock as provided for in Section 3 of this Agreement for the
purpose of covering over-allotments (the "Option Shares"). The Underwriters,
severally not jointly, are willing to purchase the Firm Shares set forth
opposite their respective names on Schedule I hereto and their pro-rata share
of the Option Shares in the event the Representatives elect to exercise the
over-allotment taken in whole or in part. The Firm Shares and the Option Shares
purchased pursuant to this Underwriting Agreement (the "Agreement"), are
collectively referred to herein as the "Shares."
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, each of the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission"), under the Securities Act of 1933, as amended
(the "Securities Act"), a registration statement on Form S-1 (Registration No.
_________), including the related preliminary prospectus relating to the
Shares. Copies of such registration statement and any amendments, including any
post-effective amendments, and all forms of the related prospectuses contained
therein and any supplements thereto, have been delivered to you. Such
registration statement, including the prospectus, Part II, all financial
schedules and exhibits thereto, all information deemed to be a part of such
registration statement pursuant to Rule 430A under the Rules and Regulations
(as hereinafter defined) and any related registration statement filed pursuant
to Rule 462(b) under the Rules and Regulations, at the time when they became
effective, are herein referred to as the "Registration Statement," and the
prospectus included as part of the Registration Statement on file with the
Commission that discloses all the information that was omitted from the
prospectus pursuant to Rule 430A under the Rules and Regulations on the date
that the Registration Statement became effective and in the form filed pursuant
to Rule 424(b) Rules and Regulations, is herein
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referred to as the "Final Prospectus." The prospectus included as part of the
Registration Statement on the date when the Registration Statement became
effective is referred to herein as the "Effective Prospectus." Any prospectus
included in the Registration Statement and in any amendment thereto prior to
the date on which the Registration Statement became effective is referred to
herein as a "Preliminary Prospectus." For purposes of this Agreement, "Rules
and Regulations" means the rules and regulations promulgated by the Commission
under either the Securities Act or the Securities Exchange of 1934, as amended
(the "Exchange Act"), as applicable.
(b) The Commission has not issued any order preventing or
suspending the use of any Preliminary Prospectus and no proceeding for that
purpose has been instituted or threatened by the Commission or the securities
authority of any state or other jurisdiction. Each Preliminary Prospectus, at
the time of filing thereof, complied with the requirements of the Securities
Act and the Rules and Regulations, and did not include any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that the
foregoing does not apply to statements or omissions made in reliance upon and
in conformity with written information furnished to the Company by any
Underwriter through ▇.▇. ▇▇▇▇▇▇▇▇ & Co. ("Bradford") specifically for use
therein (it being understood that the only information so provided is the
information included in the last paragraph on the cover page and under the
caption "Underwriting" in the Preliminary, Effective and Final Prospectus).
When the Registration Statement becomes effective and at all times subsequent
thereto up to and including the First Closing Date (as hereinafter defined),
(i) the Registration Statement, the Effective Prospectus and the Final
Prospectus and any amendments or supplements thereto will contain all
statements which are required to be stated therein in accordance with the
Securities Act and the Rules and Regulations and will comply with the
requirements of the Securities Act and the Rules and Regulations, and (ii)
neither the Registration Statement, the Effective Prospectus nor the Final
Prospectus nor any amendment or supplement thereto will include any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; except that the
foregoing does not apply to statements or omissions made in reliance upon and
in conformity with written information furnished to the Company by any
Underwriter through Bradford specifically for use therein (it being understood
that the only information so provided is the information included in the last
paragraph on the cover page and under the caption "Underwriting" in the Final
Prospectus).
(c) The Company is duly organized and validly existing and in
good standing under the laws of the jurisdiction of its incorporation or
organization with full power and authority to own its properties and conduct
its business as now conducted and is duly qualified or authorized to do
business and is in good standing in all jurisdictions wherein the nature of its
business or the character of property owned or leased may require it to be
authorized or qualified to do business, except where failure to obtain such
authorization or qualification would not have a material adverse effect on the
Company's condition (financial or otherwise). The Company holds all licenses,
consents and approvals, and has satisfied all eligibility and other similar
requirements imposed by federal, state and local regulatory bodies,
administrative agencies or other governmental bodies, agencies or officials, in
each case as required for the conduct of the business in which it is engaged
and is contemplated to be engaged as set forth in the Effective Prospectus.
(d) The capitalization of the Company as of _________ ___, 199_
is as set forth under the caption "Capitalization" in the Effective Prospectus
and the Final Prospectus, and the Company's capital stock conforms to the
description thereof contained under the caption "Description of Capital Stock"
in the Effective Prospectus and the Final Prospectus. All the issued shares of
the Company's Common Stock, have been duly authorized and validly issued, and
are fully paid and nonassessable. None of the issued shares of the Company's
Common Stock have been issued in violation of any preemptive or similar rights.
The Shares to be sold by the Company hereunder have been duly and validly
authorized and, upon issuance and delivery and payment therefor in the manner
herein
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described, will be validly issued, fully paid and nonassessable. Except as set
forth in the Effective Prospectus and the Final Prospectus, (i) the Company
does not have outstanding any options to purchase, or any rights or warrants to
subscribe for, or any securities or obligations convertible into, or any
contracts or commitments to issue or sell, any shares of capital stock and (ii)
there are no preemptive rights or other rights to subscribe for or to purchase,
or any restriction upon the transfer of, any shares of capital stock pursuant
to the Company's Charter, bylaws or any agreement or other instrument to which
the Company is a party or by which it may be bound. Neither the filing of the
Registration Statement nor the issuance, offer or sale of the Shares as
contemplated by this Agreement gives rise to any rights, other than those which
have been waived or satisfied, for or relating to the registration of any
shares of Common Stock or any other securities of the Company. The Underwriters
will receive good and marketable title to the Shares to be issued and delivered
hereunder, free and clear of all liens, encumbrances, claims, security
interests, restrictions, shareholders' agreements, voting trusts or any other
claims of third parties whatsoever.
(e) The form of stock certificate to be used to evidence the
Common Stock will be in due and proper form and will comply with all applicable
legal requirements.
(f) All offers and sales by the Company of the Company's
securities prior to the date hereof were at all relevant times duly registered
or the subject of an available exemption from the registration requirements of
the Securities Act, and were duly registered or the subject of an available
exemption from the registration requirements of the applicable state securities
or Blue Sky laws, and any private placement memoranda delivered in connection
with offers and sales of the Company's securities prior to the date hereof did
not include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein not misleading.
(g) The Company has full legal right, power and authority to enter
into this Agreement and to sell and deliver the Shares to be sold by it to the
Underwriters as provided herein, and this Agreement has been duly authorized,
executed and delivered by the Company and constitutes a valid and binding
agreement of the Company enforceable against the Company in accordance with its
terms. No consent, approval, authorization or order of any court or
governmental agency or body or third party is required for the performance of
this Agreement by the Company or the consummation by the Company of the
transactions contemplated hereby, except such as have been obtained and such as
may be required by the National Association of Securities Dealers, Inc. (the
"NASD") or under the Securities Act or state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters. The issuance and sale of the Shares by the Company, the Company's
performance of this Agreement and the consummation of the transactions
contemplated hereby will not result in a breach or violation of, or conflict
with, any of the terms and provisions of, or constitute a default by the
Company under, any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which the Company is a party or to which the
Company or any of its properties is subject, the charter, bylaws or other
governing instruments of the Company or any statute or any judgment, decree,
order, rule or regulation of any court or governmental agency or body
applicable to the Company or any of its properties. The Company is not in
violation of its charter, bylaws or other governing instruments or any law,
administrative rule or regulation or arbitrators' or administrative court
decree, judgment or order or in violation or default (there being no existing
state of facts which with notice or lapse of time or both would constitute a
default) in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture, deed of
trust, mortgage, loan agreement, note, lease, agreement or other instrument or
permit to which it is a party or by which it or any of its properties is or may
be bound.
(h) The historical and pro forma financial statements, together
with the related schedules and notes, of the Company, included in the
Registration Statement, the Effective Prospectus and the Final Prospectus,
conform to the requirements of the Securities Act and the Rules and
Regulations. Such historical financial statements fairly present the financial
position of
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the Company at the respective dates indicated in accordance with generally
accepted accounting principles applied on a consistent basis for the periods
indicated. Such pro forma financial statements have been prepared on a basis
consistent with such historical statements, except for the pro forma
adjustments specified therein, and give effect to assumptions made on a
reasonable basis and present fairly the transactions reflected thereby as
indicated in the Prospectus. The financial and statistical data set forth in
the Effective Prospectus and the Final Prospectus fairly present the
information set forth therein on the basis stated in the Effective Prospectus
and the Final Prospectus. Coopers & ▇▇▇▇▇▇▇ L.L.P., whose reports are included
in the Effective Prospectus and the Final Prospectus, are independent
accountants as required by the Securities Act and the Rules and Regulations.
(i) Subsequent to __________ __, 199_, the Company has not
sustained any material loss or interference with its business or properties
from fire, flood, hurricane, accident or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, which is not disclosed in the Effective Prospectus and the Final
Prospectus; and subsequent to the respective dates as of which information is
given in the Registration Statement, the Effective Prospectus and the Final
Prospectus, (i) the Company has not incurred any material liabilities or
obligations, direct or contingent, or entered into any transactions not in the
ordinary course of business, and (ii) there has not been any issuance of
options, warrants or rights to purchase interests or the capital stock of the
Company, or any material adverse change, or any development involving a
prospective material adverse change, in the general affairs, management,
business, prospects, financial position, net worth or results of operations of
the Company, except in each case as described in the Effective Prospectus and
the Final Prospectus.
(j) Except as described in the Effective Prospectus and the Final
Prospectus, there is not pending, or to the knowledge of the Company
threatened, any legal or governmental action, suit, proceeding, inquiry or
investigation, to which the Company or any of its officers or directors is a
party, or to which its property is subject, before or brought by any court or
governmental agency or body, wherein an unfavorable decision, ruling or finding
could prevent or materially hinder the consummation of this Agreement or result
in a material adverse change in the business condition (financial or other),
prospects, financial position, net worth or results of operations of the
Company.
(k) _______________ shares of Common Stock, including the Shares,
have been approved for listing on the Nasdaq National Market (the "Nasdaq
National Market"), subject to official notice of issuance. The Company has
filed a registration statement pursuant to Section 12 of the Exchange Act to
register the Common Stock.
(l) Neither the Company nor any of its directors, officers or
controlling persons, has taken or will take, directly or indirectly, any action
resulting in a violation of Regulation M under the Exchange Act, or designed to
cause or result under the Exchange Act or otherwise in, or which has
constituted or which reasonably might be expected to constitute, the
stabilization or manipulation of the price of any securities of the Company or
facilitation of the sale or resale of the Shares.
(m) There are no contracts or other documents required by the
Securities Act or by the Rules and Regulations to be described in the
Registration Statement, the Effective Prospectus or the Final Prospectus or to
be filed as exhibits to the Registration Statement which have not been
described or filed as required. All such contracts to which the Company is a
party have been duly authorized, executed and delivered by the Company,
constitute valid and binding agreements of the Company and are enforceable
against the Company in accordance with the terms thereof. The Company has
performed all obligations required to be performed by it, and is neither in
default nor has it received notice of any default or dispute under, any such
contract or other material instrument to which it is a party or by which its
property is bound or affected. To the best knowledge of the Company, no other
party under any such contract or other material instrument to which it is a
party is in default in any material respect thereunder.
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(n) Except as described in the Effective Prospectus and the Final
Prospectus, the Company has good and marketable title to all real and material
personal property owned by it, free and clear of all liens, charges,
encumbrances or defects, except those reflected in the financial statements
hereinabove described. The real and personal property and buildings referred to
in the Effective Prospectus and the Final Prospectus which are leased from
others by the Company are held under valid, subsisting enforceable leases. The
Company owns or leases all such properties as is necessary to its operations as
now conducted.
(o) The Company's system of internal accounting controls is
sufficient to meet the broad objectives of internal accounting controls insofar
as those objectives pertain to the prevention or detection of errors or
irregularities in amounts that would be material in relation to the Company's
financial statements.
(p) The Company has filed all foreign, federal, state and local
income and franchise tax returns required to be filed through the date hereof
and has paid all taxes shown as due therefrom to the extent such taxes have
become due and are not being contested in good faith; and there is no tax
deficiency that has been, nor does the Company have knowledge of any tax
deficiency which is likely to be, asserted against the Company which, if
determined adversely, could materially and adversely affect the earnings,
assets, affairs, business prospects or condition (financial or other) of the
Company.
(q) The Company operates its business in conformity with all
applicable statutes, common laws, ordinances, decrees, orders, rules and
regulations of governmental bodies, including, without limitation, those
relating to the manufacture, assembly and sale of radio frequency related
products using radio frequency technology. The Company has all licenses,
approvals or consents to operate its business in all locations in which such
business is currently being operated and is not aware of any existing or
imminent matter which may materially adversely impact its operations or
business prospects other than as specifically disclosed in the Effective
Prospectus and the Final Prospectus.
(r) The Company is not in violation of any federal, state, local
or foreign law or regulation relating to occupational safety and health or to
the storage, handling or transportation of hazardous or toxic materials, and
the Company has received all permits, licenses or other approvals required of
it under applicable federal, state and foreign occupational safety and health
and environmental laws and regulations to conduct its respective businesses,
and the Company is in compliance with all terms and conditions of any such
permit, license or approval, except any such violation of law or regulation,
failure to receive required permits, licenses or other approvals or failure to
comply with the terms and conditions of such permits, licenses or approvals
which would not result in a material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or prospects of the Company.
(s) The Company has not failed to file with the applicable
regulatory authorities any statements, reports, information or forms required
by all applicable laws, regulations or orders; all such filings or submissions
were in compliance with applicable laws when filed, and no material
deficiencies have been asserted by any regulatory commission, agency or
authority with respect to such filings or submissions. The Company has not
failed to maintain in full force and effect any licenses, registrations or
permits necessary or proper for the conduct of its business, or received any
notification that any revocation or limitation thereof is threatened or
pending, and there is not to the knowledge of the Company pending any change
under any law, regulation, license or permit which could materially adversely
affect the business, operations, property or business prospects of the Company.
The Company has not received any notice of violation of or been threatened with
a charge of violating or is under investigation with respect to a possible
violation of any provision of any law, regulation or order.
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(t) No labor dispute exists or is imminent with any of the
employees of the Company or otherwise which could materially adversely affect
the Company. The Company is not aware of any existing or imminent labor
disturbance by employees of the Company which could be expected to materially
adversely affect the condition (financial or otherwise), results of operations,
properties, affairs, management, business affairs or business prospects of the
Company. The Company is in compliance with all federal, state and local
employment and labor laws, including but not limited to, laws relating to
non-discrimination in hiring, promotion and pay of employees.
(u) The Company owns or possesses all licenses, patents,
copyrights, trademarks, service marks and trade names presently employed by it
in connection with the businesses presently operated or proposed to be operated
by it, and the Company has not received any notice of infringement of or
conflict with asserted rights of others with respect to any of the foregoing
which, alone or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, could result in any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company.
(v) The Company is insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which it is engaged and in which it proposes
to engage; and the Company has no reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage expires or to
obtain similar coverage from similar insurers as may be necessary to continue
its business.
(w) Neither the Company, nor any director, officer, agent,
employee or other person acting on behalf of the Company has (i) used, or
authorized the use of, any corporate or other funds for unlawful payments,
contributions, gifts or entertainment, (ii) made unlawful expenditures relating
to political activity to government officials or others, or (iii) established
or maintained any unlawful or unrecorded funds in violation of any federal,
state, local or foreign law or regulation, including Section 30A of the
Exchange Act. Neither the Company nor any director, officer, agent, employee or
other person acting on behalf of the Company has accepted or received any
unlawful contributions, payments, gifts or expenditures.
(x) The Company is not, will not become as a result of the
transactions contemplated hereby, and does not intend to conduct its business
in a manner that would cause it to become, an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940.
(y) Except as disclosed in the Registration Statement and the
Effective Prospectus, there are no business relationships or related party
transactions required to be disclosed therein by Item 404 of Regulation S-K
promulgated by the Commission.
2. Representations and Warranties of the Selling Shareholders.
Each of the Selling Shareholders, severally and not jointly, represents and
warrants to and agrees with, each of the Underwriters that:
(a) Such Selling Shareholder, at the First Closing Date, will
have good and marketable title to the Shares set forth in Schedule II to be
sold by such Selling Shareholder, free and clear of any liens, encumbrances,
equities and claims (other than as imposed by the Securities Act or this
Agreement), and full right, power and authority to effect the sale and delivery
of such Shares; and upon the delivery of and payment for the Shares to be sold
by such Selling Shareholder pursuant to this Agreement, good and marketable
title thereto, free and clear of any liens, encumbrances, equities and claims,
of any kind, will be transferred to the Underwriters.
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(b) Such Selling Shareholder has duly executed and delivered the
Custody Agreement and Power of Attorney in the form previously delivered to the
Representatives, appointing the persons named therein, and each of them as such
Selling Shareholder's attorney-in-fact (the "Attorney-in-Fact") and as
custodian (the "Custodian"). The Attorney-in-Fact is authorized to execute,
deliver and perform this Agreement on behalf of such Selling Shareholder, to
deliver the Shares to be sold by such Selling Shareholder hereunder, to accept
payment therefor, and otherwise to act on behalf of such Selling Shareholder in
connection with this Agreement, including payment from the Offering proceeds of
expenses incurred on behalf of such Selling Shareholder. Certificates, in
suitable form for transfer by delivery or accompanied by duly executed
instruments of transfer or assignment in blank, representing the Shares to be
sold by such Selling Shareholder hereunder have been deposited with the
Custodian pursuant to the Custody Agreement and Power of Attorney for the
purpose of delivery pursuant to this Agreement. Such Selling Shareholder agrees
that the shares of Common Stock represented by the certificates on deposit with
the Custodian are subject to the interest of the Underwriters hereunder, that
the arrangements made for such custody and the appointment of the
Attorney-in-Fact are to that extent irrevocable, and that the obligations of
such Selling Shareholder hereunder shall not be terminated except as provided
in this Agreement and the Custody Agreement and Power of Attorney. If such
Selling Shareholder should die or become incapacitated, or if any other event
should occur, before the delivery of the Shares of such Selling Shareholder
hereunder, the certificates for such Shares deposited with the Custodian shall
be delivered by the Custodian in accordance with the terms and conditions of
this Agreement as if such death, incapacity or other event had not occurred,
regardless of whether the Custodian or the Attorney-in-Fact shall have received
notice thereof.
(c) Such Selling Shareholder, acting through his duly authorized
Attorney-in-Fact, has duly executed and delivered this Agreement and the
Custody Agreement and Power of Attorney; this Agreement constitutes a legal,
valid and binding obligation of such Selling Shareholder, all authorizations
and consents necessary for the execution and delivery of this Agreement and the
Custody Agreement and Power of Attorney on behalf of such Selling Shareholder
and for the sale and delivery of the Shares to be sold by such Selling
Shareholder hereunder have been given, except as may be required by the
Securities Act or state securities laws; and such Selling Shareholder has the
legal capacity and full right, power and authority to execute this Agreement
and the Custody Agreement and Power of Attorney.
(d) The performance of this Agreement and the Custody Agreement
and Power of Attorney and the consummation of the transactions contemplated
hereby and thereby by such Selling Shareholder will not result in a breach or
violation of, or conflict with, any of the terms or provisions of, or
constitute a default by such Selling Shareholder under, any indenture,
mortgage, deed of trust, trust (constructive or other), loan agreement, lease,
franchise, license or other agreement or instrument to which such Selling
Shareholder or any of his or its properties is bound, or any statute, judgment,
decree, order, rule or regulation of any court or governmental agency or body
applicable to such Selling Shareholder or any of his, her or its properties.
(e) Such Selling Shareholder has not distributed nor, other than
as permitted by the Securities Act and the Rules and Regulations, will
distribute any prospectus or other offering material in connection with the
offer and sale of the Shares other than any Preliminary Prospectus filed with
the Commission or the Final Prospectus or other material permitted by the
Securities Act.
(f) Such Selling Shareholder has reviewed and is familiar with
the Registration Statement and the Preliminary Prospectus. To the knowledge of
such Selling Shareholder, the Preliminary Prospectus does not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
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(h) At the time the Registration Statement becomes effective (i)
such parts of the Registration Statement and any amendments and supplements
thereto as specifically refer to such Selling Shareholder will not contain an
untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and (ii) such parts of the Effective Prospectus and Final
Prospectus as specifically refer to such Selling Shareholder will not include
an untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(i) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory body, administrative or other
governmental body is necessary in connection with the execution and delivery of
this Agreement by such Selling Shareholder, and the consummation by him of the
transactions herein contemplated (other than as required by the Securities Act,
state securities laws and the NASD).
(j) Any certificates signed by or on behalf of such Selling
Shareholder as such and delivered to the Representatives or to counsel for the
Representatives shall be deemed a representation and warranty by such Selling
Shareholder to each Underwriter as to the matters covered thereby.
(k) In order to document the Underwriters' compliance with the
reporting and withholding provisions of the Tax Equity and Fiscal
Responsibility Act of 1982 with respect to the transactions herein
contemplated, such Selling Shareholder agrees to deliver to you prior to or at
the First Closing Date (as hereinafter defined) a properly completed and
executed United States Treasury Department Form W-9 (or other applicable form
or statement specified by Treasury Department regulations in lieu thereof).
(l) Such Selling Shareholder has not taken nor will take,
directly or indirectly, any action resulting in a violation of Regulation M
under the Exchange Act or under the Exchange Act, or otherwise in, or which has
constituted or which reasonably might be expected to constitute, the
stabilization or manipulation of the price of any securities of the Company or
facilitation of the sale or resale of the Shares.
3. Purchase, Sale and Delivery of the Shares.
(a) On the basis of the representations, warranties, agreements
and covenants herein contained and subject to the terms and conditions herein
set forth, the Company and the Selling Shareholders, severally not jointly, in
the amount set forth on Schedule II hereto, agree to sell to the several
Underwriters ___________ and, Firm Shares, respectively, and each of the
Underwriters, severally and not jointly, agrees to purchase at a purchase price
of $______ per share, the number of Firm Shares set forth opposite such
Underwriter's name in Schedule I hereto.
(b) The Company hereby grants to the Underwriters an option to
purchase, solely for the purpose of covering over-allotments in the sale of
Firm Shares, all or any portion of the Option Shares at the purchase price per
share set forth above. The option granted hereby may be exercised as to all or
any part of the Option Shares at any time within 30 days after the date of the
Final Prospectus. The Underwriters shall not be under any obligation to
purchase any Option Shares prior to the exercise of such option. The option
granted hereby may be exercised by the Underwriters by ▇.▇. ▇▇▇▇▇▇▇▇ & Co.,
L.L.C. ("Bradford") giving written notice to the Company setting forth the
number of Option Shares to be purchased and the date and time for delivery of
and payment for such Option Shares and stating that the Option Shares referred
to therein are to be used for the purpose of covering over-allotments in
connection with the distribution and sale of the Firm Shares. If such notice is
given prior to the First Closing Date (as hereinafter defined), the date set
forth therein for such delivery and payment shall not be earlier than two full
business days thereafter or the First
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Closing Date, whichever occurs later. If such notice is given on or after the
First Closing Date, the date set forth therein for such delivery and payment
shall not be earlier than three full business days thereafter. In either event,
the date so set forth shall not be more than four full business days after the
date of such notice. The date and time set forth in such notice is herein
called the "Option Closing Date." Upon exercise of the option, the Company
shall become obligated to sell to the Underwriters, and, subject to the terms
and conditions herein set forth, the Underwriters shall become obligated to
purchase, for the account of each Underwriter, from the Company, severally and
not jointly, the number of Option Shares specified in such notice. Option
Shares shall be purchased for the accounts of the Underwriters in proportion to
the number of Firm Shares set forth opposite such Underwriter's name in
Schedule I hereto, except that the respective purchase obligations of each
Underwriter shall be adjusted so that no Underwriter shall be obligated to
purchase fractional Option Shares.
(c) Certificates in definitive form for the Firm Shares which
each Underwriter has agreed to purchase hereunder shall be delivered by or on
behalf of the Company to the Underwriters for the account of such Underwriter
against payment by such Underwriter or on its behalf of the purchase price
therefor by wire transfer of immediately available funds to the order of the
Company, at the offices of Bradford, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, or at such other place as may be agreed upon by Bradford and the
Company, at 10:00 A.M., Nashville time, on the third full business day after
this Agreement becomes effective, or, at the election of the Underwriters, on
the fourth full business day after this Agreement becomes effective, if it
becomes effective after 4:30 P.M. Eastern time, or at such other time not later
than the seventh full business day thereafter as the Underwriters and the
Company may determine, such time of delivery against payment being herein
referred to as the "First Closing Date." The First Closing Date and the Option
Closing Date are herein individually referred to as the "Closing Date" and
collectively referred to as the "Closing Dates." Certificates in definitive
form for the Option Shares which each Underwriter shall have agreed to purchase
hereunder shall be similarly delivered by or on behalf of the Company on the
Option Closing Date. The certificates in definitive form for the Shares to be
delivered will be in good delivery form and in such denominations and
registered in such names as ▇▇▇▇▇▇▇▇ ▇▇▇ request not less than 48 hours prior
to the First Closing Date or the Option Closing Date, as the case may be. Such
certificates will be made available for checking and packaging at a location in
New York, New York as may be designated by Bradford, at least 24 hours prior to
the First Closing Date or the Option Closing Date, as the case may be. It is
understood that ▇▇▇▇▇▇▇▇ ▇▇▇ (but shall not be obligated to) make payment on
behalf of any Underwriter or Underwriters for the Shares to be purchased by
such Underwriter or Underwriters. No such payment shall relieve such
Underwriter or Underwriters from any of its or their obligations hereunder.
4. Offering by the Underwriters. After the Registration
Statement becomes effective, the several Underwriters propose to offer for sale
to the public the Firm Shares and any Option Shares which may be sold at the
price and upon the terms set forth in the Final Prospectus.
5. Covenants of the Company and the Selling Shareholders.
(a) The Company covenants and agrees with each of the
Underwriters that:
(i) The Company shall comply with the provisions of and make all
requisite filings with the Commission pursuant to Rules 424 and 430A of the
Rules and Regulations and shall notify the Representatives promptly (in
writing, if requested) of all such filings. The Company shall notify the
Representatives promptly of any request by the Commission for any amendment of
or supplement to the Registration Statement, the Effective Prospectus or the
Final Prospectus or for additional information; the Company shall prepare and
file with the Commission, promptly upon the Underwriters' request, any
amendments of or supplements to the Registration Statement, the Effective
Prospectus or the Final Prospectus which, in the Underwriters' opinion, may be
necessary or advisable in connection with the distribution of the Shares; and
the Company shall not file any
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amendment of or supplement to the Registration Statement, the Effective
Prospectus or the Final Prospectus which is not approved by the Representatives
after reasonable notice thereof. The Company shall advise the Representatives
promptly of the issuance by the Commission or any jurisdiction or other
regulatory body of any stop order or other order suspending the effectiveness
of the Registration Statement, suspending or preventing the use of any
Preliminary Prospectus, the Effective Prospectus or the Final Prospectus or
suspending the qualification of the Shares for offering or sale in any
jurisdiction, or of the institution of any proceedings for any such purpose;
and the Company shall use its best efforts to prevent the issuance of any stop
order or other such order and, should a stop order or other such order be
issued, to obtain as soon as possible the lifting thereof.
(ii) The Company will take or cause to be taken all necessary
action and furnish to whomever the Representatives direct, such information as
may be reasonably required in qualifying the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Underwriters may
designate and will continue such qualifications in effect for as long as may be
reasonably necessary to complete the distribution of the Shares.
(iii) Within the time during which a Final Prospectus relating to
the Shares is required to be delivered under the Securities Act, the Company
shall comply with all requirements imposed upon it by the Securities Act, as
now and hereafter amended, and by the Rules and Regulations, as from time to
time in force, so far as is necessary to permit the continuance of sales of or
dealings in the Shares as contemplated by the provisions hereof and the Final
Prospectus. If during such period any event occurs as a result of which the
Final Prospectus as then amended or supplemented would include an untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in the light of the circumstances then existing, not
misleading, or if during such period it is necessary to amend the Registration
Statement or supplement the Final Prospectus to comply with the Securities Act,
the Company shall promptly notify the Representatives and shall amend the
Registration Statement or supplement the Final Prospectus (at the expense of
the Company) so as to correct such statement or omission or effect such
compliance.
(iv) The Company will furnish without charge to the Representatives
and make available to the Underwriters copies of the Registration Statement
(four of which shall be signed and shall be accompanied by all exhibits), each
Preliminary Prospectus, the Effective Prospectus and the Final Prospectus, and
all amendments and supplements thereto, including any prospectus or supplement
prepared after the effective date of the Registration Statement, in each case
as soon as available and in such quantities as the Underwriters may reasonably
request.
(v) The Company will (A) deliver to the Representatives at such
office or offices as the Representatives may designate as many copies of the
Preliminary Prospectus and Final Prospectus as the Representatives may
reasonably request, (B) for a period of not more than nine months after the
Registration Statement becomes effective, send to the Representatives as many
additional copies of the Final Prospectus and any supplement thereto as the
Representatives may reasonably request, and (C) following nine months after the
Registration Statement becomes effective, send to the Representatives at their
expense as many additional copies of the Final Prospectus and any supplement
hereto as the Representative may reasonably request.
(vi) The Company shall make generally available to its security
holders, in the manner contemplated by Rule 158(b) under the Rules and
Regulations as promptly as practicable and in any event no later than 45 days
after the end of its fiscal quarter in which the first anniversary of the
effective date of the Registration Statement occurs, an earnings statement
satisfying the provisions of Section ll(a) of the Securities Act covering a
period of at least 12 consecutive months beginning after the effective date of
the Registration Statement.
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(vii) The Company will apply the net proceeds from the sale of the
Shares to be sold by it as set forth under the caption "Use of Proceeds" in the
Final Prospectus and will timely report such use of proceeds in its periodic
reports filed pursuant to sections 13(a) and 15(d) of the Exchange Act in
accordance with Rule 463 of the Securities Act or any successor provision.
(viii) During a period of five years from the effective date of the
Registration Statement or such longer period as the Representatives may
reasonably request, the Company will furnish to the Representatives copies of
all reports and other communications (financial or other) furnished by the
Company to its shareholders and, as soon as available, copies of any reports or
financial statements furnished or filed by the Company to or with the
Commission or any national securities exchange or over-the-counter market on
which any class of securities of the Company may be listed for trading.
(ix) The Company will, from time to time, after the effective date
of the Registration Statement file with the Commission such reports as are
required by the Securities Act, the Exchange Act and the Rules and Regulations,
and shall also file with foreign, state and other governmental securities
commissions in jurisdictions where the Shares have been sold by the
Underwriters (as the Representatives shall have advised the Company in writing)
such reports as are required to be filed by the securities acts and the
regulations of those states.
(x) Except pursuant to this Agreement or with the Representatives'
written consent, for a period of 180 days from the effective date of the
Registration Statement, the Company will not, and the Company has provided
agreements executed by each of its officers, directors and 5% or greater
Shareholders providing that for a period of 180 days from the effective date of
the Registration Statement, such person will not, offer for sale, sell (other
than the issuance by the Company of shares of Common Stock pursuant to
acquisitions or the exercise of options granted pursuant to existing employee
benefit plans and agreements), grant any options (other than pursuant to
existing employee benefit plans and agreements), rights or warrants with
respect to any shares of Common Stock, securities convertible into shares of
Common Stock or any other capital stock of the Company, or otherwise dispose
of, directly or indirectly, any shares of Common Stock or such other securities
or capital stock.
(xi) Neither the Company nor any of its directors, officers or
controlling persons, has taken or will take, directly or indirectly, any action
resulting in a violation of Regulation M under the Exchange Act, or designed to
cause or result under the Exchange Act or otherwise in, or which has
constituted or which reasonably might be expected to constitute, the
stabilization or manipulation of the price of any securities of the Company or
facilitation of the sale or resale of the Shares.
(xii) The Company will either conduct its business and operations
as described in the Final Prospectus or, if the Company makes any material
change to its business or operations as so conducted, promptly disclose such
change generally to the Company's security holders.
(xiii) If at any time during the 25 day period after the
Registration Statement is declared effective, any rumor, publication or event
relating to or affecting the Company shall occur as a result of which, in the
Representatives' opinion, the market price for the Shares has been or is likely
to be materially affected (regardless of whether such rumor, publication or
event necessitates a supplement to or amendment of the Final Prospectus), the
Company will, after written notice from the Representatives advising it as to
the effect set forth above, prepare in consultation with the Representatives
concerning the substance of and, subject to the Rules and Regulations,
disseminate a press release or other public statement, reasonably satisfactory
to the Representatives, responding to or commenting on such rumor, publication
or event.
(xiv) The Company will use its best efforts to effect the listing
of the Common Stock, subject to notice of issuance, on the Nasdaq National
Market on or before the effective date of the Registration Statement.
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(b) Each of the Selling Shareholders, severally and not jointly,
covenants and agrees with each of the Underwriters that:
(i) Such Selling Shareholder will cooperate to the extent
necessary to cause the Registration Statement or any post-effective amendment
thereto to become effective at the earliest possible time.
(ii) Such Selling Shareholder will pay all federal and other
taxes, if any, on the transfer or sale of the Shares being sold by such Selling
Shareholder to the Underwriters.
(iii) Such Selling Shareholder will do or perform all things
required to be done or performed by such Selling Shareholder prior to the First
Closing Date to satisfy all conditions precedent to the delivery of the Shares
pursuant to this Agreement or the Power of Attorney and Custody Agreement.
(iv) Such Selling Shareholder has delivered to the Company an
agreement pursuant to which such Selling Shareholder has agreed that during the
period of 180 days from the date the Registration Statement is declared
effective under the Securities Act, such Selling Shareholder will not, without
your prior written consent, offer, pledge, issue, sell, contract to sell, grant
any option for the sale of, or otherwise dispose of (or announce any offer,
pledge, sale, grant of an option to purchase or other disposition), directly or
indirectly, any shares of Common Stock or securities convertible into,
exercisable or exchangeable for, shares of Common Stock.
(v) Such Selling Shareholder will not (i) take, directly or
indirectly, prior to the termination of the underwriting syndicate contemplated
by this Agreement, any action designed to cause or to result in, or that might
reasonably be expected to constitute, the stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of any of
the Shares, (ii) sell, bid for, purchase or pay anyone any compensation for the
conflicting purchases of, the Shares or (iii) pay or agree to pay to any person
any compensation for soliciting another to purchase any other securities of the
Company.
(vi) Such Selling Shareholder will deliver to the Custodian on or
prior to the First Closing Date a properly completed and executed United States
Treasury Department Form W-9 (or other applicable form or statement specified
by Treasury Department Regulations in lieu thereof).
(vii) Such Selling Shareholder will furnish any documents,
instruments or other information which you may reasonably request in connection
with the sale and transfer of the Shares.
(viii) Such Selling Shareholder will use its or his best efforts to
comply or cause to be complied with the conditions to the obligations of the
Underwriters in Section 7 hereof insofar as such conditions relate to such
Selling Shareholder.
6. Expenses. The Company agrees with each of the Selling
Shareholders and the Underwriters that (a) whether or not the transactions
contemplated by this Agreement are consummated or this Agreement becomes
effective or is terminated, the Company will pay all fees and expenses incident
to the performance of the obligations of the Company hereunder, including, but
not limited to, (i) the Commission's registration fee, (ii) the expenses of
printing (or reproduction) and distributing the Registration Statement
(including the financial statements therein and all amendments and exhibits
thereto), each Preliminary Prospectus, the Effective Prospectus, the Final
Prospectus, any amendments or supplements thereto, any Marketing Materials (as
hereinafter defined) and this Agreement and other underwriting documents,
including Underwriter's Questionnaires, Underwriter's Powers of Attorney, Blue
Sky Memoranda, Agreements Among Underwriters and Selected Dealer Agreements,
(iii) fees and expenses of accountants and counsel for
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the Company, (iv) expenses of registration or qualification of the Shares under
state Blue Sky and securities laws, including the fees and disbursements of
counsel to the Underwriters in connection therewith, (v) filing fees paid or
incurred by the Underwriters in connection with filings with the NASD, (vi)
expenses of listing the outstanding Common Stock on the Nasdaq National Market,
(vii) all travel, lodging and reasonable living expenses incurred by the
Company in connection with marketing, dealer and other meetings attended by the
Company and the Underwriters in marketing the Shares, (viii) the costs and
charges of the Company's transfer agent and registrar and the cost of preparing
the certificates for the Shares, and (ix) all other costs and expenses incident
to the performance of its obligations hereunder not otherwise provided for in
this Section; and (b) all out-of-pocket expenses, including counsel fees,
disbursements and expenses, incurred by the Underwriters in connection with
investigating, preparing to market and marketing the Shares and proposing to
purchase and purchasing the Shares under this Agreement, will be borne and paid
by the Company if the sale of the Shares provided for herein is not consummated
(i) by reason of the termination of this Agreement by the Company pursuant to
Section 14(a)(i) or (ii) by reason of the termination of this Agreement by the
Underwriters pursuant to Section 14(b)(ii), (iii), (iv) or (v) of this
Agreement or (iii) because of any failure or refusal on the part of the Company
or any Selling Shareholder to comply with the terms or fulfill any of the
conditions of this Agreement.
The provisions of this Section shall not affect any agreement that the
Company and the Selling Shareholders may have for the sharing of such costs and
expenses; provided, however, the Underwriters may deem the Company to be the
primary obligor with respect to all costs, fees, and expenses to be paid
hereunder by the Company and the Selling Shareholders.
7. Conditions of the Underwriters' Obligations. The respective
obligations of the Underwriters to purchase and pay for the Firm Shares shall
be subject to the accuracy of the representations and warranties of the Company
herein as of the date hereof and as of the Closing Date as if made on and as of
the Closing Date, to the accuracy of the statements of the Company's officers
made pursuant to the provisions hereof, to the performance by the Company and
the Selling Shareholders of all of their respective covenants and agreements
hereunder and to the following additional conditions:
(a) The Registration Statement and all post-effective amendments
thereto shall have become effective not later than 5:30 P.M., Washington, D.C.
time, on the day following the date of this Agreement, or such later time and
date as shall have been consented to by the Representatives and all filings
required by Rule 424 and Rule 430A of the Securities Act Rules shall have been
made; no stop order suspending the effectiveness of the Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or threatened or, to the knowledge of the Company or the
Underwriters, shall be contemplated by the Commission; any request of the
Commission for additional information (to be included in the Registration
Statement or the Final Prospectus or otherwise) shall have been complied with
to the Representatives' satisfaction; and the NASD, upon review of the terms of
the public offering of the Shares, shall not have objected to such offering,
such terms or the Underwriters' participation in the same.
(b) No Representative shall have advised the Company that the
Registration Statement, Preliminary Prospectus, the Effective Prospectus or
Final Prospectus, or any amendment or any supplement thereto, contains an
untrue statement of fact which, in the Representatives' reasonable judgment, is
material, or omits to state a fact which, in the Representatives' reasonable
judgment, is material and is required to be stated therein or necessary to make
the statements therein not misleading and the Company shall not have cured such
untrue statement of fact or stated a statement of fact required to be stated
therein.
(c) The Representatives shall have received an opinion, dated the
Closing Date, from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇, counsel for the Company, to
the effect that:
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(i) The Company has been duly incorporated and is validly
existing as a corporation under the laws of the State of Tennessee, with
corporate power and authority to own its properties and conduct its business as
now conducted as described in the Final Prospectus, and is duly qualified to do
business as a foreign corporation in good standing in all other jurisdictions
where the failure to so qualify would have a material adverse effect upon the
Company.
(ii) As of the dates specified therein, the Company had
historically authorized and issued capital stock as set forth under the caption
"Capitalization" in the Final Prospectus. All of the outstanding shares of
Common Stock have been duly authorized and are validly issued, fully paid and
nonassessable, and the Shares to be sold by the Company have been duly
authorized, and upon issuance thereof and payment therefor as provided herein,
will be validly issued, fully paid and nonassessable; none of the issued shares
have been issued in violation of or subject to any preemptive rights provided
for by law, any agreement known to such counsel or the Company's Charter. To
such counsel's knowledge, the Company does not have outstanding any options to
purchase, or any rights or warrants to subscribe for, or any securities or
obligations convertible into, or any contracts or commitments to issue or sell
any shares of capital stock, and there are no preemptive rights or other rights
to subscribe for or purchase any shares of the capital stock of the Company, or
any restriction upon the transfer of, the Shares pursuant to the Company's
charter or bylaws or any agreement or other instrument known to such counsel to
which the Company is a party or by which it may be bound, except as described
in the Effective Prospectus and Final Prospectus. Neither the filing of the
Registration Statement nor the offer or sale of the Shares as contemplated by
this Agreement gives rise to any rights, other than those which have been
waived or satisfied, for or relating to the registration of any Common Stock or
any other securities of the Company. The Underwriters will receive good and
marketable title to the Shares to be issued and delivered by the Company
pursuant to this Agreement, free and clear of all liens, encumbrances, claims,
security interests, restrictions, shareholders agreements, voting trusts and
the rights of any third party whatsoever. The capital stock of the Company and
the Shares conform to the description thereof contained in the Final
Prospectus. All offers and sales of the Company's interests and securities
prior to the date hereof were made in reliance upon available exemptions from
the registration requirements of the Securities Act and the registration
requirements of applicable state securities or Blue Sky laws or, if not exempt,
properly registered in compliance with such laws.
(iii) The form of stock certificate to be used to evidence the
Common Stock will be in due and proper form and will comply with all applicable
legal requirements under the Tennessee Business Corporation Act.
(iv) No consent, approval, authorization or order of any court or
governmental agency or body or third party is required for the performance of
this Agreement by the Company or the consummation by the Company of the
transactions contemplated hereby, except such as have been obtained under the
Securities Act and such as may be required by the NASD and under state
securities or Blue Sky laws in connection with the purchase and distribution of
the Shares by several Underwriters, as to which such counsel need not express
an opinion. The performance of this Agreement by the Company and the
consummation by the Company of the transactions contemplated hereby will not
conflict with or result in a breach or violation by the Company of any of the
terms or provisions of, or constitute a default by the Company under, any
material indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which the Company is a party or to which the Company
or its properties is subject, the Charter or bylaws of the Company, any
statute, or any judgment, decree, order, rule or regulation of any court or
governmental agency or body applicable to the Company.
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(v) The Company has full legal right and all corporate power and
authority to enter into this Agreement and to issue, sell and deliver the
Shares to be sold by it to the Underwriters as provided herein, and this
Agreement has been duly authorized, executed and delivered by the Company and
constitutes the valid and legally binding obligation of the Company enforceable
against the Company in accordance with its terms.
(vi) Except as described in the Final Prospectus, there is not
pending or threatened, any action, suit, proceeding, inquiry or investigation,
to which the Company is a party, or to which the property of the Company is
subject, before or brought by any court or governmental agency or body, which,
if determined adversely to the Company, could likely result in any material
adverse change in the business, financial position, net worth or results of
operations, or could materially adversely affect the properties or assets, of
the Company.
(vii) No default exists, and no event has occurred which with
notice or after the lapse of time to cure or both, would constitute a default,
in the due performance and observance of any term, covenant or condition of any
material indenture, mortgage, deed of trust, loan agreement, lease or other
agreement or instrument to which the Company is a party or to which its
respective properties are subject, or of the charter or bylaws of the Company.
(viii) There are no contracts or documents of the Company known to
such counsel which are required to be filed as exhibits to the Registration
Statement by the Securities Act or by the Rules and Regulations which have not
been so filed.
(ix) The Company is not an "investment company" or an entity
"controlled" by an "investment company," as such terms are defined in the
Investment Company Act of 1940, as amended.
(x) The Registration Statement and all post-effective amendments
thereto have become effective under the Securities Act, and, no stop order
suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are threatened, pending
or contemplated by the Commission. All filings required by Rule 424 and Rule
430A of the Rules and Regulations have been made; the Registration Statement,
the Effective Prospectus and Final Prospectus, and any amendments or
supplements thereto, as of their respective effective or issue dates, complied
as to form in all material respects with the requirements of the Securities Act
and the Rules and Regulations; the descriptions in the Registration Statement,
the Effective Prospectus and the Final Prospectus of statutes, regulations,
legal and governmental proceedings, and contracts and other documents are
accurate in all material respects and present fairly in all material respects
the information purported to be summarized; and counsel does not know of any
pending or threatened legal or governmental proceedings, statutes or
regulations required to be described in the Final Prospectus which are not
described as required nor of any contracts or documents of a character required
to be described in the Registration Statement or the Final Prospectus or to be
filed as exhibits to the Registration Statement which are not described and
filed as required.
In addition to the matters set forth above, such opinion shall also
include a statement to the effect that nothing has come to the attention of
such counsel which leads them to believe that the Registration Statement, the
Effective Prospectus and the Final Prospectus or any amendment or supplement
thereto contains an untrue statement of a material fact or omits to state a
material fact necessary to make the statements therein not misleading in light
of the circumstances under which they were made (except that such counsel need
express no view as to financial statements, schedules and other financial or
statistical information included therein).
(d) The Representatives shall have received an opinion, dated the
Closing Date, of counsel for the Selling Shareholders, reasonably acceptable to
the Representatives, to the effect that:
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(i) This Agreement and the Custody Agreement and Power of Attorney
have been duly authorized (in the case of corporate or partnership Selling
Shareholders), executed and delivered by or on behalf of each of the Selling
Shareholders and constitute valid and binding agreements of such Selling
Shareholders in accordance with their terms, subject to limits on remedies,
specific performance and bankruptcy and insolvency laws.
(ii) The sale of the Shares to be sold by each Selling Shareholder
hereunder and the compliance by such Selling Shareholder with all of the
provisions of this Agreement, the Custody Agreement and the Power of Attorney
and the consummation of the transactions herein and therein contemplated will
not conflict with or result in a breach or violation of any terms or provisions
of, or constitute a default under any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which such Selling Shareholder is
a party or by which such Selling Shareholder is bound or to which any of the
property or assets of such Selling Shareholder is subject, or any statute,
order, rule or regulation of any court or governmental agency or body
applicable to such Selling Shareholder or the property of such Selling
Shareholder.
(iii) No consent, approval, authorization or order of any
regulatory, administrative or other governmental body is required for the
consummation of the transactions contemplated by this Agreement in connection
with the Shares to be sold by each Selling Shareholder hereunder, except which
have been duly obtained and in full force and effect, such as have been
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 Underwriters, as to which such counsel need express no
opinion.
(iv) Each of the Selling Shareholders has the full right, power
and authority to sell, transfer and deliver such Shares pursuant to this
Agreement. By delivery of a certificate or certificates therefor, the Selling
Shareholders will transfer to the Underwriters valid title to such shares, free
and clear of any pledge, lien, security interest, charge, claim, equity or
encumbrance of any kind.
The opinions to be rendered pursuant to paragraphs (c) and (d) may be
limited to federal law, and as to foreign and state law matters, to the laws of
the states or jurisdictions in which such counsel is admitted to practice. Such
counsel may rely upon opinions of other counsel in rendering such opinions
provided that such counsel shall state that they believe that both the
Representatives and they are justified in relying upon such opinions and that
such counsel is reasonably satisfactory to you.
(e) The Underwriters shall have received an opinion or opinions,
dated the Closing Date, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇, P.A., counsel for the
Underwriters, with respect to the Registration Statement and the Final
Prospectus, and such other related matters as the Underwriters may require, and
the Company shall have furnished to such counsel such documents as they may
reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Representatives shall have received from Coopers &
▇▇▇▇▇▇▇, L.L.P. a letter dated the date hereof and, at the Closing Date, a
second letter dated the Closing Date, in form and substance satisfactory to the
Representatives, stating that they are independent public accountants with
respect to the Company and its subsidiaries within the meaning of the
Securities Act and the applicable Rules and Regulations, and containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information of the Company contained in the Registration
Statement and the Prospectus.
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In the event that the letters to be delivered referred to above set
forth any such changes, decreases or increases, it shall be a further condition
to the obligations of the Underwriters that the Underwriters shall have
determined, after discussions with officers of Company responsible for
financial and accounting matters and with Coopers & ▇▇▇▇▇▇▇, LLP that such
changes, decreases or increases as are set forth in such letters do not reflect
a material adverse change in the total assets, Shareholders' equity or
long-term debt of Company as compared with the amounts shown in the latest
balance sheets of Company included in the Final Prospectus, or a material
adverse change in revenues or net income of Company, in each case as compared
with the corresponding period of the prior year.
(g) There shall have been furnished to the Representatives a
certificate, dated the Closing Date and addressed to you, signed by the Chief
Executive Officer and Chief Financial Officer of the Company, to the effect
that:
(i) the representations and warranties of the Company in Section
1 of this Agreement are true and correct, as if made at and as of the Closing
Date, and the Company has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for that purpose have been
initiated or are pending, or to their knowledge, threatened under the
Securities Act;
(iii) all filings required by Rule 424 and Rule 430A of the Rules
and Regulations have been made;
(iv) they have carefully examined the Registration Statement, the
Effective Prospectus and the Final Prospectus, and any amendments or
supplements thereto, and such documents do not include any untrue statement of
a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading in light of
the circumstances under which they were made; and
(v) since the effective date of the Registration Statement, there
has occurred no event required to be set forth in an amendment or supplement to
the Registration Statement, the Effective Prospectus or the Final Prospectus
which has not been so set forth.
(h) The representations and warranties of each Selling
Shareholder in Section 2 of this Agreement shall be true and correct as of the
Closing Date and such Selling Shareholders shall deliver to the Representatives
a certificate to that effect, dated the Closing Date, signed by such Selling
Shareholder or his or its duly appointed Attorney-in-fact.
(i) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Final Prospectus, and except as
stated therein, the Company has not sustained any material loss or interference
with its business or properties from fire, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any labor dispute or any
court or governmental action, order or decree, or become a party to or the
subject of any litigation which is material to the Company, nor shall there
have been any material adverse change, or any development involving a
prospective material adverse change, in the business, properties, key
personnel, capitalization, prospects, net worth, results of operations or
condition (financial or other) of the Company, which loss, interference,
litigation or change, in the Representatives' reasonable judgment shall render
it unadvisable to commence or continue the offering of the Shares at the
offering price to the public set forth on the cover page of the Prospectus or
to proceed with the delivery of the Shares.
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(j) The Shares shall be listed on the Nasdaq National Market.
(k) The Representatives shall have received the Lockup Agreements.
All such opinions, certificates, letters and documents delivered
pursuant to this Agreement will comply with the provisions hereof only if they
are reasonably satisfactory to the Representatives and their counsel. The
Company shall furnish to the Representatives such conformed copies of such
opinions, certificates, letters and documents in such quantities as the
Representatives shall reasonably request.
The respective obligations of the Underwriters to purchase and pay for
the Option Shares shall be subject, in their discretion, to the conditions of
this Section 7, except that all references to the "Closing Date" shall be
deemed to refer to the Option Closing Date, if it shall be a date other than
the Closing Date.
8. Condition of the Company's and the Selling Shareholder's
Obligations. The obligations hereunder of the Company and the Selling
Shareholders are subject to the condition set forth in Section 7(a) hereof.
9. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each
Underwriter, and each person, if any, who controls any Underwriter within the
meaning of the Securities Act, against any losses, claims, damages or
liabilities to which such Underwriter or controlling person may become subject
under the Securities Act or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based in
whole or in part upon: (i) any inaccuracy in the representations and warranties
of the Company or the Selling Shareholders contained herein; (ii) any failure
of the Company or the Selling Shareholders to perform their obligations
hereunder or under law; (iii) any untrue statement or alleged untrue statement
of any material fact contained in (A) the Registration Statement, any
Preliminary Prospectus, the Effective Prospectus or Final Prospectus, or any
amendment or supplement thereto, (B) any audio or visual materials supplied by
the Company expressly for use in connection with the marketing of the Shares,
including without limitation, slides, videos, films and tape recordings (the
"Marketing Materials") or (C) in any Blue Sky application or other written
information furnished by the Company or the Selling Shareholders filed in any
state or other jurisdiction in order to qualify any or all of the Shares under
the securities laws thereof (a "Blue Sky Application"); (iv) or the omission or
alleged omission to state in the Registration Statement, any Preliminary
Prospectus, the Effective Prospectus or Final Prospectus or any amendment or
supplement thereto, any Marketing Materials or Blue Sky Application a material
fact required to be stated therein or necessary to make the statements therein
not misleading; or (v) any act or failure to act or any alleged act or failure
to act by any Underwriter in connection with, or relating to in any manner to,
the Shares or the offering contemplated hereby, and which is included as part
of or referred to in any loss, claim, damage, liability or action arising out
of or based upon matters covered by clause (i), (ii), (iii) or (iv) above
(provided that the Company shall not be liable under this clause (v) to the
extent that it is determined in a final judgment by a court of competent
jurisdiction that such loss, claim, damage, liability or action resulted
directly from any such acts or failures to act undertaken or omitted to be
taken by such Underwriter through its gross negligence or willful misconduct);
and will reimburse each Underwriter and each such controlling person for any
legal or other expenses reasonably incurred by such Underwriter or such
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action as such expenses are incurred; provided,
however, that the Company will not be liable in any such case to the extent
that any such loss, claim, damage, or liability arises out of or is based upon
any untrue statement or alleged untrue statement or omission or alleged
omission made in the Registration Statement, the Preliminary Prospectus, the
Effective Prospectus or Final Prospectus, or any amendment or supplement
thereto, or any Marketing Materials or Blue Sky Application in reliance
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upon and in conformity with written information furnished to the Company by any
Underwriter specifically for use therein (it being understood that the only
information so provided is the information included in the last paragraph on
the cover page and under the caption "Underwriting" in any Preliminary
Prospectus and the Final Prospectus and the Effective Prospectus).
(b) The Selling Shareholders, severally and not jointly, agree to
indemnify and hold harmless each Underwriter, and each person, if any, who
controls any Underwriter within the meaning of the Securities Act, against any
losses, claims, damages or liabilities to which such Underwriter or controlling
person may become subject under the Securities Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based in whole or in part upon: (i) any inaccuracy in the
representations and warranties of the Company or such Selling Shareholder
contained herein; (ii) any failure of the Company or such Selling Shareholder
to perform their obligations hereunder or under law; (iii) any untrue statement
or alleged untrue statement of any material fact contained in (A) the
Registration Statement, any Preliminary Prospectus, the Effective Prospectus or
Final Prospectus, or any amendment or supplement thereto, (B) any Marketing
Materials or (C) in any Blue Sky Application furnished by the Company or such
Selling Shareholder; or (iv) the omission or alleged omission to state the
Registration Statement, any Preliminary Prospectus, the Effective Prospectus or
Final Prospectus or any amendment or supplement thereto, any Marketing
Materials or Blue Sky Application a material fact required to be stated therein
or necessary to make the statements therein not misleading; or (v) any act or
failure to act or any alleged act or failure to act by any Underwriter in
connection with, or relating to in any manner to, the Shares or the offering
contemplated hereby, and which is included as part of or referred to in any
loss, claim, damage, liability or action arising out of or based upon matters
covered by clause (i), (ii), (iii) or (iv) above (provided that the Company
shall not be liable under this clause (v) to the extent that it is determined
in a final judgment by a court of competent jurisdiction that such loss, claim,
damage, liability or action resulted directly from any such acts or failures to
act undertaken or omitted to be taken by such Underwriter through its gross
negligence or willful misconduct);and will reimburse each Underwriter and each
such controlling person for any legal or other expenses reasonably incurred by
such Underwriter or such controlling person in connection with any
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred; provided, however, that such Selling Shareholder
will not be liable in any such case to the extent that any such loss, claim,
damage, or liability arises out of or is based upon any untrue statement or
alleged statement or omission or alleged omission made in the Registration
Statement, the Preliminary Prospectus, the Effective Prospectus or Final
Prospectus, or any amendment or supplement thereto, or any Marketing Materials
or Blue Sky Application in reliance upon and in conformity with written
information furnished to the Company by any Underwriter specifically for use
therein (it being understood that the only information so provided is the
information included in the last paragraph on the cover page and in the first
and third paragraphs under the caption "Underwriting" in any Preliminary
Prospectus and the Final Prospectus and the Effective Prospectus).
(c) Notwithstanding the foregoing provisions of Section 9(a) and
(b), the parties agree that the indemnification obligations of each Selling
Shareholder under this Section 9, with respect to any matter that such Selling
Shareholder and the Company are both required to indemnify the Underwriters
hereunder, shall be subject to the determination by the Representatives, on
behalf of the Underwriters, that, in the Representatives' reasonable commercial
judgment, the Company is or may be unable to discharge fully its obligations to
the Underwriters hereunder; provided, however, that such Selling Shareholder's
obligations shall (i) be limited to such Selling Shareholder's proportion of
the Firm Shares as set forth on Schedule II, times the aggregate amount to
which the Underwriters are entitled to indemnification, and (ii) shall be
liable in any such case only to the extent of the total net proceeds (before
deducting expenses) received from the Underwriters by such Selling Shareholder
in connection with the sale of the Shares hereunder. To the extent the Company
is or may be able, in the Representatives' reasonable commercial judgment, to
discharge the Company's obligations to the Underwriters with respect to any
matter that the Company is required
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to indemnify the Underwriters hereunder, the Underwriters shall to such extent,
first seek indemnification from the Company.
(d) Each Underwriter, will indemnify and hold harmless each of
the Selling Shareholders, the Company, each of its directors, each of the
Company's officers who signed the Registration Statement and each person, if
any, who controls the Company within the meaning of the Securities Act against
any losses, claims, damages or liabilities to which such Selling Shareholders,
the Company or any such director, officer or controlling person may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, any Preliminary Prospectus, the
Effective Prospectus or Final Prospectus, or any amendment or supplement
thereto, any Marketing Materials or any Blue Sky Application, or arise out of
or are based upon the omission or the alleged omission to state in the
Registration Statement, any Preliminary Prospectus, the Effective Prospectus or
Final Prospectus, or any amendment or supplement thereto, any Marketing
Materials or any Blue Sky Application a material fact required to be stated
therein or necessary to make the statements therein not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter specifically for use therein (it being understood that the only
information so provided is the information included in the last paragraph on
the cover page and under the caption "Underwriting" in any Preliminary
Prospectus and in the Effective Prospectus and the Final Prospectus).
(e) Promptly after receipt by an indemnified party under this
Section 9 of notice of the commencement of any action, including governmental
proceedings, such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under this Section 9 notify the
indemnifying party of the commencement thereof; but the omission so to notify
the indemnifying party will not relieve it from any liability which it may have
to any indemnified party hereunder unless the indemnifying party has been
materially prejudiced thereby and in any event shall not relieve it from
liability otherwise than under this Section 9. In case any such action is
brought against any indemnified party, and it notifies the indemnifying party
of the commencement thereof, the indemnifying party will be entitled to
participate therein, and to the extent that it may wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel reasonably satisfactory to such indemnified party; and after notice
from the indemnifying party to such indemnified party of its election so to
assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section 9 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation except that the
indemnified party shall have the right to employ separate counsel if, in the
indemnified party's reasonable judgment, it is advisable for the indemnified
party to be represented by separate counsel, and in that event the fees and
expenses of separate counsel shall be paid by the indemnifying party.
(f) In order to provide for just and equitable contribution in
circumstances in which the indemnity agreement provided for in the preceding
part of this Section 9 is for any reason held to be unavailable to the
Underwriters, the Company or the Selling Shareholders or is insufficient to
hold harmless an indemnified party, then the Company and the Selling
Shareholders shall contribute to the damages paid by the Underwriters, and the
Underwriters shall contribute to the damages paid by the Company and the
Selling Shareholders; provided, however, that 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. The amount of such contribution shall (i) be in
such proportion as shall be appropriate to reflect the relative benefits
received by the Company and the Selling Shareholders on the one hand and the
Underwriters on the other from the offering of the Shares or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, be
in such proportion as is appropriate to reflect not only
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the relative benefits referred to in clause (i) above but also the relative
fault of the Company and the Selling Shareholders on the one hand and the
Underwriters on the other with respect to the statements or omissions which
resulted in such loss, claim, damage or liability, or action in respect
thereof, as well as any other relevant equitable considerations. The relative
benefits received by the Company and the Selling Shareholders on the one hand
and the Underwriters on the other with respect to such offering shall be deemed
to be in the same proportion as the total net proceeds from the offering of the
Shares purchased under this Agreement (before deducting expenses) received by
the Company and the Selling Shareholders, in the case of the Company and the
Selling Shareholders, and the total underwriting discounts and commissions
received by the Underwriters with respect to the Shares purchased under this
Agreement, in the case of the Underwriters, bear to the total gross proceeds
from the offering of the Shares under this Agreement, in each case as set forth
in the Prospectus. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact or omission
or alleged omission to state a material fact relates to information supplied by
the Company the Selling Shareholders or the Underwriters, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Selling
Shareholders and the Underwriters agree that it would not be equitable if the
amount of such contribution were determined by pro rata or per capita
allocation (even if the Underwriters were treated as one entity for such
purpose). Notwithstanding the foregoing, (i) no Underwriter or person
controlling such Underwriter shall be obligated to make contribution hereunder
which in the aggregate exceeds the underwriting discount applicable to the
Shares purchased by such Underwriter under this Agreement, less the aggregate
amount of any damages which such Underwriter and its controlling persons have
otherwise been required to pay in respect of the same or any similar claim (ii)
no Selling Shareholder shall be required to contribute any amount in excess of
the aggregate amount for which such Selling Shareholder is obligated to provide
indemnification pursuant to this Section 9. The Underwriters' obligations and
the Selling Shareholders' obligations to contribute hereunder are several in
proportion to their respective obligations and not joint. For purposes of this
Section, each person, if any, who controls an Underwriter within the meaning of
Section 15 of the Securities Act shall have the same rights to contribution as
such Underwriters, and each director of the Company, each officer of the
Company who signed the Registration Statement, and each person, if any, who
controls the Company or a Selling Shareholder within the meaning of Section 15
of the Securities Act shall have the same rights to contribution as the Company
or the Selling Shareholder, as the case may be.
(g) No indemnifying party shall, without the prior written
consent of the indemnified party, effect any settlement of any pending or
threatened action, suit or proceeding in respect of which any indemnified party
is a party or is (or would be, if a claim were to be made against such
indemnified party) entitled to indemnity hereunder, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such action, suit or proceeding.
10. Default of Underwriters. If any Underwriter defaults in its
obligation to purchase Shares hereunder and if the total number of Shares which
such defaulting Underwriter agreed but failed to purchase is ten percent or
less of the total number of Shares to be sold hereunder, the non-defaulting
Underwriters shall be obligated severally to purchase (in the respective
proportions which the number of Shares set forth opposite the name of each
non-defaulting Underwriter in Schedule I hereto bears to the total number of
Shares set forth opposite the names of all the non-defaulting Underwriters),
the Shares which such defaulting Underwriter or Underwriters agreed but failed
to purchase. If any Underwriter so defaults and the total number of Shares with
respect to which such default or defaults occur is more than ten percent of the
total number of Shares to be sold hereunder, and arrangements satisfactory to
the other Underwriters, the Company and the Selling Shareholders for the
purchase of such Shares by other persons (who may include the non-defaulting
Underwriters) are not made within 36 hours after such default, this Agreement,
insofar as it relates to the sale of the Shares, will terminate without
liability on the part of the non-defaulting Underwriters or the Company except
for (i) the provisions of Section 9 hereof, and (ii)
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the expenses to be paid or reimbursed by the Company pursuant to Section 6. As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section 10. Nothing herein shall relieve a
defaulting Underwriter from liability for its default.
11. Default by the Selling Shareholders. If the Selling
Shareholders shall fail to sell and deliver the number of Firm Shares that the
Selling Shareholders are obligated to sell, the Representatives may, at their
option, by notice to the Company, either (a) require the Company to sell and
deliver such number of shares of Common Stock as to which the Selling
Shareholders have defaulted, or (b) elect to purchase the Firm Shares and the
Option Shares that the Company and the non-defaulting Selling Shareholders have
agreed to sell pursuant to this Agreement.
In the event of a default under this Section that does not result in
the termination of this Agreement, either the Representatives or the Company
shall have the right to postpone the First Closing Date or Option Closing Date
for a period not exceeding seven days in order to effect any required changes
in the Registration Statement or Prospectus or in any other documents or
arrangements. No action taken pursuant to this Section shall relieve the
Company or the Selling Shareholder so defaulting from liability, if any, in
respect of such default.
12. Survival Clause. The respective representations, warranties,
agreements, covenants, indemnities and other statements of the Selling
Shareholders, the Company or their officers and the Underwriters set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement shall remain in full force and effect, regardless of (a) any
investigation made by or on behalf of the Company, any of its officers or its
directors, any Underwriter or any controlling person, (b) any termination of
this Agreement and (c) delivery of and payment for the Shares.
13. Effective Date. This Agreement shall become effective at
whichever of the following times shall first occur: (i) at 11:30 am Washington
D.C. time, on the next full business day following the date in which the
Registration Statement becomes effective or (ii) at such time after the
Registration Statement has become effective as the Representatives shall
release the Firm Shares for sale to the public; provided, however, that the
provisions of Sections 6,9,12, and 13 hereof shall at all times be effective.
For purposes of this Section 13, the Firm Shares shall be deemed to have been
so released upon the release by the Representatives for publication, at any
time after the Registration Statement has become effective, of any newspaper
advertisement relating to the Firm Shares or upon the release by the
Representatives of telegrams offering the Firm Shares for sale to securities
dealers, whichever may occur first.
14. Termination.
(a) The Company's obligations under this Agreement may be
terminated by the Company by notice to the Representatives (i) at any time
before it becomes effective in accordance with Section 13 hereof, or (ii) in
the event that the condition set forth in Section 8 shall not have been
satisfied at or prior to the First Closing Date.
(b) This Agreement may be terminated by the Representatives by
notice to the Company (i) at any time before it becomes effective in accordance
with Section 13 hereof; (ii) in the event that at or prior to the First Closing
Date the Company or any Selling Shareholder shall have failed, refused or been
unable to perform any agreement on the part of the Company or such Selling
Shareholder to be performed hereunder or any other condition to the obligations
of the Underwriters hereunder is not fulfilled; (iii) if at or prior to the
Closing Date trading in securities on the NYSE, the Nasdaq, National Market,
the American Stock Exchange or the over-the-counter market shall have been
suspended or materially limited or minimum or maximum prices shall have been
established on either of such exchanges or such market, or a banking moratorium
shall have been declared by Federal or state authorities; (iv) if at or prior
to the Closing Date trading in securities of the Company shall have been
suspended; or (v) if there shall have been such a material adverse change
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in general economic, political or financial conditions or if the effect of
international conditions on the financial markets in the United States shall be
such as, in your reasonable judgment, makes it inadvisable to commence or
continue the offering of the Shares at the offering price to the public set
forth on the cover page of the Prospectus or to proceed with the delivery of
the Shares.
(c) Termination of this Agreement pursuant to this Section 14
shall be without liability of any party to any other party other than as
provided in Sections 6 and 9 hereof.
15. Notices. All communications hereunder shall be in writing
and, if sent to any of the Underwriters, shall be mailed or delivered or
telegraphed and confirmed in writing to the Underwriters in care of ▇. ▇.
▇▇▇▇▇▇▇▇ & Co., ▇. ▇. ▇▇▇▇▇▇▇▇ Financial Center, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇, or if sent to the
Company shall be mailed, delivered or telegraphed and confirmed in writing to
the Company at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention ▇▇▇▇▇
▇▇▇▇, or if sent to Beta Development shall be mailed, delivered or telegraphed
and confirmed in writing to ___________, or if sent to Tennessee Innovations
shall be mailed, delivered or telegraphed and confirmed in writing to
___________.
16. Miscellaneous. This Agreement shall inure to the benefit of
and be binding upon the Underwriters, the Company and the Selling Shareholders
their respective successors and legal representatives. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any other
person any legal or equitable right, remedy or claim under or in respect of
this Agreement. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the Company, the Selling
Shareholders and the Underwriters and for the benefit of no other person except
that (a) the representations and warranties and indemnities of the Company and
the Selling Shareholder contained in this Agreement shall also be for the
benefit of any person or persons who control any Underwriter within the meaning
of Section 15 of the Securities Act, and (b) the indemnities by the
Underwriters shall also be for the benefit of the directors of the Company,
officers of the Company who have signed the Registration Statement and any
person or persons who control the Company within the meaning of Section 15 of
the Securities Act. No purchaser of Shares from any Underwriter will be deemed
a successor because of such purchase. The validity and interpretation of this
Agreement shall be governed by the laws of the State of Tennessee. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument. The Representatives hereby represent and warrant to the Company
that the Representative have authority to act hereunder on behalf of the
Underwriters, and any action hereunder taken by the Representatives shall be
binding upon all the Underwriters.
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If the foregoing is in accordance with your understanding of our
agreement, please indicate your acceptance thereof in the space provided below
for that purpose, whereupon this letter shall constitute a binding agreement
among the Company, each of the Selling Shareholders and each of the
Underwriters.
Very truly yours,
RADIO SYSTEMS CORPORATION
By:
-------------------------------------
Title:
----------------------------------
SELLING SHAREHOLDERS
By:
------------------------------------
Attorney-in-Fact for each of the
Selling Shareholders listed in
Schedule II hereto
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Confirmed and accepted as of
the date first above written.
▇.▇. ▇▇▇▇▇▇▇▇ & CO., L.L.C.
By:
------------------------
THE ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ COMPANY, INC.
By:
------------------------
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SCHEDULE I
UNDERWRITERS
Underwriter Number of Firm Shares to be Purchased
▇.▇. ▇▇▇▇▇▇▇▇ & Co.
The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company
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SCHEDULE II
SELLING SHAREHOLDERS
Selling Shareholder Number of Shares to be Sold
Beta Development Corp.
Tennessee Innovations
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