1,000,000 Units
WESTOWER CORPORATION
Each Unit Consisting of
One share of Common Stock and
One Redeemable Common Stock Purchase Warrant
, 1997
AGREEMENT AMONG UNDERWRITERS
TEJAS SECURITIES GROUP, INC..
1250 Capital of Xxxxx Xxx. Xxxxx Xxxxxxxx Xxx
Xxxxx 000
Xxxxxx, Xxxxx 00000
Dear Sirs:
1. Underwriting Agreement. We understand that Westower Corporation., a
Washington corporation (the "Company"), and certain stockholders of the Company
(the "Selling Stockholders"), propose to enter into an underwriting agreement
(the "Underwriting Agreement"), with you as managing underwriter ("Managing
Underwriter") and other prospective underwriters, including ourselves, acting
severally and not jointly, providing for (a) the purchase by the Underwriters
(as defined in Section 3 hereof) of 1,000,000 Units, each Unit consisting of one
share of Common Stock, $.01 par value, of the Company ("Common Stock"), and one
redeemable common stock purchase warrant (individually, a "Redeemable Warrant"),
each of which entitles the holder thereof to purchase one share of Common Stock
at a price of $9.00 (such Units, together with (A) the shares of Common Stock
and Redeemable Common Stock Purchase Warrants comprising such Units and (B) the
shares of Common Stock issuable upon exercise of such Redeemable Common Stock
Purchase Warrants, are collectively referred to herein as the "Underwritten
Securities") and (b) the grant by the Company and the Selling Stockholder to the
Underwriters, as provided in Section 2(b) of the Underwriting Agreement, of an
option to purchase from the Company and the Selling Stockholder up to an
aggregate of 150,000 additional Units (such additional Units, together with (A)
the shares of Common Stock and Redeemable Common Stock Purchase Warrants
comprising such additional Units and (B) the shares of Common Stock issuable
upon exercise of such Redeemable Common Stock Purchase Warrants, are
collectively referred to herein as the "Option Securities") solely for the
purpose of covering over-allotments in the sale of the Underwritten Securities;
in each case, upon the conditions stated in the Underwriting Agreement, in which
we agree, in accordance with the terms thereof and subject to adjustment
pursuant to Section 9 thereof, to purchase the number of Units included within
the Underwritten Securities set forth opposite our names in Schedule I thereof
and our pro rata portion of the number of Units included within the Option
Securities, determined in accordance with Section 2(b) of the Underwriting
Agreement, with respect to which the over-allotment option is exercised. The
Underwritten Securities and the Option Securities are hereinafter referred to as
the "Securities" and the Units included therein are hereinafter referred to as
the "Registered Units."
2. Registration Statement and Prospectus. The Securities are more
particularly described in the registration statement relating thereto filed with
the Securities and Exchange Commission under the Securities Act of 1933, as
amended (the "Act"). Amendments to such registration statement have been or may
be filed, in which, with our consent hereby confirmed, we have been or will be
named as one of the Underwriters of the Securities. Copies of the registration
statement and the related preliminary prospectus have heretofore been delivered
to us, and we confirm that they are correct insofar as they relate to us. You
are authorized to approve on our behalf any amendments or any supplements to the
registration statement, any preliminary prospectus and the prospectus which you
consider necessary or appropriate. The registration statement and related
prospectus, as amended and supplemented from time to time, are hereinafter
respectively referred to as the "Registration Statement" and "Prospectus." We
agree, if you so request, to furnish a copy of any revised preliminary
prospectus to each person to whom we have delivered a copy of any previous
preliminary prospectus. We further represent that we have delivered all
preliminary prospectuses and agree that we will deliver all final prospectuses
required for compliance with the provisions of Rule l5c2-8 of the General Rules
and Regulations under the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
3. Authority of Managing Underwriters. We authorize you, as Managing
Underwriter, (a) to execute and deliver on our behalf the Underwriting Agreement
in the form annexed hereto as Exhibit A, with such changes therein as in your
discretion may be necessary or advisable, including changes in those who are to
be Underwriters and in the respective number of Registered Units to be purchased
by them (but not any change in the number of Registered Units to be purchased by
us except with our consent or as provided in the Underwriting Agreement), (b) to
take such action as in your discretion may be necessary or advisable to carry
out the Underwriting Agreement, this Agreement and the transactions for the
accounts of the several Underwriters contemplated thereby and hereby, including,
in your discretion, whether to purchase any or all of the Registered Units
included within the Option Securities for the accounts of the several
Underwriters, and (c) to take such action as in your discretion may be necessary
or advisable to carry out the purchase, carrying, sale and distribution of the
Registered Units. The parties on whose behalf you execute the Underwriting
Agreement, including yourself as Managing Underwriters, are herein called the
"Underwriters."
4. Public Offering. We authorize you to supply the Company with the
information to be included in the Registration Statement and Prospectus with
respect to the terms of the offering, to determine the time of the initial
public offering after the Registration Statement becomes effective, to vary the
public offering price of the Registered Units and the concessions and discounts
to dealers after the initial public offering, and to determine all matters
relating to the advertisement of the Securities and communication with dealers
or others.
We authorize you, with respect to any Registered Units which we so agree to
purchase, to reserve for sale and to sell for our account such number of our
Registered Units as you shall determine, to securities dealers ("Dealers"),
including any of the Underwriters. We authorize you to determine the form and
manner of any communications or agreements with Dealers. If there shall be any
such agreements with Dealers, you are authorized to act as manager thereunder,
and we agree, in such event, to be governed by the terms and conditions of such
agreements to the extent we act as a Dealer. The form of Selected Dealer
Agreement attached hereto as Exhibit B is satisfactory to us. If there shall not
be any written agreements with Dealers, we agree to be governed by the terms and
conditions of such Selected Dealer Agreement to the extent we act as a Dealer.
After the Registration Statement becomes effective, you will advise us of
the number of our Registered Units not so reserved but retained by us for direct
sale. Any of our Registered Units reserved but not sold may, from time to time,
on our request and in your discretion, be released to us, and Registered Units
so released will not thereafter be deemed to be reserved, except that any time
prior to termination of the provisions of the last paragraph of this Section 4,
we will on request advise you of the number of our retained unsold Registered
Units and you may in your discretion add all or any number of such retained
unsold Registered Units to those reserved by you for sale. Sales of reserved
Registered Units to Dealers will be made at $ per Unit for the accounts of the
several Underwriters as nearly as practicable in proportion to their respective
underwriting obligations.
You may in your discretion sell to another Underwriter any of the Registered
Units so reserved for our account if you determine that such sales are advisable
for Blue Sky purposes. The transfer tax on any such sales shall be charged to
the accounts of the several Underwriters in proportion to their respective
underwriting obligations.
You, and any of the Underwriters with your consent, may make purchases and
sales of Registered Units from or to any other Underwriter at the public
offering price less a concession equivalent to all or any part of the gross
underwriting spread. You are authorized to purchase Registered Units for our
account from Dealers at the public offering price less a concession not
exceeding the concession to Dealers. We will offer to the public, in conformity
with the terms of the offering set forth in the Prospectus, our Registered Units
not reserved by you.
5. Payment and Delivery. Payment for Registered Units retained by us for
direct sale shall be made by us through the Depository Trust Company ("DTC"),
payable in same-day funds to the order of Tejas Securities Group, Inc. at such
time or times as you may designate, against delivery of such Registered Units to
us through the facilities of the DTC. The above payment will be made by us at
$___ per Unit; however you will promptly reimburse us the amount of $___ per
Unit.
If our funds are not received by you when required, you are authorized, in
your individual capacities or as Managing Underwriter, but shall not be
obligated, to make payment pursuant to the Underwriting Agreement for our
account in accordance with the provisions of Section 6 hereof. Any such payment
by you shall not relieve us from any of our obligations hereunder or under the
Underwriting Agreement.
We authorize you to hold and deliver to Dealers, against payment, our
Registered Units reserved by you for offering to them. Upon receiving payment
for Registered Units so sold for our account, you will remit to us as promptly
as practicable the amount of $___ per Unit.
As soon as practicable after termination of the provisions referred to in
the first paragraph of Section 10 hereof, you shall deliver to us, against
payment therefor unless such has already been made, any of our Registered Units
reserved by you for sale but not sold, except that if the aggregate of all such
reserved and unsold Registered Units of all Underwriters does not exceed __% of
the total number of Registered Units, you are authorized in your discretion to
sell such Registered Units for the accounts of the several Underwriters at such
price or prices as you may determine.
6. Authority to Borrow. In connection with the purchase or carrying for our
account of any Registered Units purchased for our account under this Agreement
or the Underwriting Agreement, we authorize you, in your discretion and
individual capacity, to advance your own funds for our account, charging current
interest rates as Managing Underwriters to arrange and make loans on our behalf
and for our account, and to execute and deliver any notes or security as may be
necessary or advisable in your discretion. Any lending bank is hereby authorized
to rely upon your instructions in all matters relating to any such loan. We
shall be paid or credited with the proceeds of any such advance or loan made for
our account and shall be debited with any repayment.
You may deliver to us from time to time, for carrying purposes only, any of
our reserved Registered Units held by you for our account which have not been
sold. We will redeliver to you on demand any Registered Units so delivered to us
for carrying purposes.
7. Stabilization. We ratify and confirm your stabilization transactions, if
any, for the accounts of the several Underwriters prior to the date hereof, and
we authorize you, in your discretion, to buy and sell Registered Units in the
open market or otherwise, on a when-issued basis or otherwise, for either long
or short account, at such prices and on such terms as you may determine, and to
over-allot in arranging for sales. We authorize you in your discretion to cover
any short position incurred for the accounts of the several Underwriters
pursuant to this Section 7 by exercising the over-allotment option referred to
in Section 2(b) of the Underwriting Agreement and by buying Registered Units,
and, in lieu of delivering to the several Underwriters any of the Registered
Units held for their respective accounts pursuant to Section 4 hereof, to sell
such Registered Units for the accounts of each of the Underwriters, in each case
at such prices and on such terms as you may determine. All such purchases, sales
and over-allotments will be for the accounts of the several Underwriters as
nearly as practicable in proportion to their respective underwriting
obligations, and at no time will our net commitment under the foregoing
provisions of this paragraph, either for long or short account, exceed 15% of
our original underwriting obligations. We will take up at cost on demand any of
the Registered Units so purchased for our account and deliver on demand any of
the Registered Units sold or over-allotted for our account. In the event of
default by one or more Underwriters with respect to their obligations under this
paragraph, each nondefaulting Underwriter shall assume its proportionate share
of the obligations of such defaulting Underwriter without relieving such
defaulting Underwriter of its liability hereunder. The existence of this
provision is no assurance that the price of any of the aforesaid Registered
Units will be stabilized or that stabilizing, if commenced, will not be
discontinued at any time.
We authorize you on our behalf to maintain the records required by Rule
17a-2 of the General Rules and Regulations under the Exchange Act and to file
any reports required in connection with any transaction made by you pursuant to
this Section 7, and we agree to furnish you with any information needed for such
reports. You agree that if stabilization is undertaken you will notify the
several Underwriters promptly upon the initiation and termination of such
stabilization. We agree, if stabilization is undertaken, promptly, and in any
event, within one business days following such stabilization, to transmit to
you, the price, date and time at which such stabilizing purchase was effected.
In addition, we agree to promptly notify you of the date and time when
stabilizing was terminated.
We agree to advise you, from time to time upon your request, of the number
of Registered Units retained by or released to us and remaining unsold, and
will, upon your request, release to you for the accounts of one or more of the
several Underwriters such number of Registered Units as you may designate at
such price, not less than the net price to Dealers nor more than the public
offering price, as you may determine.
If, pursuant to the provisions of this Section 7, you purchase or contract
to purchase any Registered Units that were retained by or released to us for
direct sale, we authorize you in your discretion either to require us to
repurchase such Registered Units at a price equal to the total cost of such
purchase, including commissions and transfer tax on redelivery, to sell for our
account such Registered Units and debit or credit our account for the profit or
loss resulting from such sale, or to charge our account with an amount equal to
the concession to Dealers with respect thereto.
Upon the termination of this Agreement, you are authorized in your
discretion, in lieu of delivering to the several Underwriters any Registered
Units then held for their respective accounts pursuant to this Section 7, to
sell such Registered Units for the accounts of each of the Underwriters at such
price or prices as you may determine.
8. Open Market Transactions. We and you agree not to bid for, purchase,
attempt to induce others to purchase, or sell, directly or indirectly, any of
the Securities, including the Registered Units, for our own account or for the
accounts of customers except as brokers pursuant to unsolicited orders and as
otherwise provided in this Agreement or the Underwriting Agreement.
9. Allocation of Expenses. We authorize you to charge our account with all
transfer taxes on sales made by you for our account (except as otherwise
provided herein) and our proportionate share (based upon our underwriting
obligation) of all other expenses incurred by you in finding and developing this
public offering, and arising under the terms of this Agreement or the
Underwriting Agreement, or in connection with the purchase, carrying, sale or
distribution of the Registered Units. Your determination of the amount and
allocation of such expenses shall be final and conclusive. In the event of the
default of any Underwriter in carrying out its obligations hereunder, the
expenses arising from such default may be proportionately charged by you against
the other Underwriters not so defaulting without, however, relieving such
defaulting Underwriter from its liability therefor.
10. Termination and Settlement. The provisions of the last paragraph of
Section 4 hereof, the first sentence and fourth paragraph of Section 7 hereof,
and Section 8 hereof will terminate at the close of business 45 days after the
date of the initial public offering unless extended by you by notice to us for a
further period not exceeding an additional 45 days. Such provisions may be
terminated at such earlier time as you determine in your discretion, by notice
to us stating that such provisions are terminated.
As promptly as practicable after termination of the provisions referred to
in the first paragraph of this Section 10, our account will be settled and paid,
provided that you reserve from distribution to the several Underwriters such
amounts as you may deem advisable to cover possible additional expenses. You may
at any time make partial distribution of credit balances or call on the several
Underwriters to pay their respective debit balances. Any of our funds in your
hands may be held with your general funds without accountability for interest
and may be commingled with your general funds. Notwithstanding termination of
this Agreement or any settlement, we agree to pay (a) our proportionate share
(based on our underwriting obligation) of all expenses and liabilities which may
be incurred by or for the account of the Underwriters and (b) any transfer taxes
paid after such settlement on account of any sale or transfer for our account.
If the Underwriting Agreement shall be terminated or canceled, or if it
shall be executed but shall not become effective, our obligations hereunder
shall immediately cease and terminate except for the obligation to pay our
proportionate share of all expenses and except for obligations, if any, incurred
for our account under Section 7 hereof and our obligations under the second
paragraph of this Section 10 and under Section 14 hereof.
11. Default by Underwriters. Default by one or more Underwriters in respect
of their obligations under the Underwriting Agreement will not release us from
any of our obligations or in any way affect the liability of any defaulting
Underwriter to the other Underwriters for damages resulting from such default.
In case of such default with respect to the purchase of 10% or less of the
Registered Units included within the Underwritten Securities, we will purchase
additional Registered Units as set forth in Section 9 of the Underwriting
Agreement. If such default exceeds 10% of the Registered Units included within
the Underwritten Securities, you are authorized, but shall not be obligated, to
arrange for the purchase by other persons, who may include yourself or any
nondefaulting Underwriter, of that defaulted portion in excess of 10%. If such
arrangements are made, we will purchase Registered Units not exceeding our
original commitments under Section 9 of the Underwriting Agreement, and the
additional number of Registered Units to be purchased by the nondefaulting
Underwriters and by such other persons, if any, shall be added to our original
commitments and shall together be taken as the basis for determining the
proportionate several obligations and benefits hereunder and under the
Underwriting Agreement, but this shall in no way affect the liability of any
defaulting Underwriter for damages resulting from such default. If there is any
default as to the purchase of any portion of the Registered Units, you are
authorized, but shall not be obligated, to purchase or to arrange for the
purchase by the nondefaulting Underwriters of the defaulted portion.
12. Position of the Managing Underwriters. Except as in this Agreement
otherwise specifically provided, you shall have full authority to take such
action as you deem necessary or advisable in respect of all matters pertaining
to the Underwriting Agreement and this Agreement in connection with the
purchase, carrying, sale and distribution of the Registered Units, but you shall
be under no liability to us, except for your own lack of good faith, for
obligations expressly assumed by you in this Agreement and for any liabilities
imposed upon you by the Act. No obligations on your part shall be implied or
inferred herefrom. Authority with respect to matters to be determined by you, or
by you and the Company pursuant to the Underwriting Agreement, shall survive the
termination of this Agreement.
Nothing herein contained shall be construed as making us partners with you
or with other Underwriters or shall be construed as making the several
Underwriters an association or other separate entity, and the rights and
liabilities of ourselves and each of the other Underwriters (including you) are
several and not joint.
13. Underwriters' Warrants. We agree that the Underwriters' Warrants (as
defined in the Underwriting Agreement) shall be allocated as follows: 100% to
you as Managing Underwriters.
14. Indemnification.
(a) Each Underwriter agrees to indemnify and hold harmless each other
Underwriter and each person, if any, who controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act to the extent
and under the terms set forth in the Underwriting Agreement upon which each
Underwriter agrees to indemnify the Company, and the Company's respective
directors, officers and controlling persons. Such indemnity shall survive the
termination of this Agreement and any investigation made by or on behalf of any
Underwriter or any person so controlling an Underwriter.
(b) We agree that you shall be under no liability in respect of any matters
connected herewith or actions taken by you pursuant to this Agreement, except
for obligations expressly assumed by you in this Agreement. If at any time any
claim or claims shall be asserted against you, as Managing Underwriters, or
otherwise involving the Underwriters generally, relating to any preliminary
prospectus, the Prospectus, the Registration Statement, the public offering of
the Securities, any state or other securities or Blue Sky law qualification
matters, or any of the transactions contemplated by this Agreement, we authorize
you to make such investigation, to retain such counsel and to take such other
actions as you may deem necessary or desirable under the circumstances,
including settlement of any such claim or claims if such course of action shall
be recommended by counsel retained by you. We agree to pay you, upon request,
our proportionate share (based on our underwriting obligation) of all expenses
incurred by you (including, but not limited to, the disbursements and fees of
counsel retained by you) in investigating and defending against such claim or
claims, and our proportionate share (based on our underwriting obligation) of
any liability incurred by you in respect of such claim or claims, whether such
liability shall be the result of a judgment against you or the result of any
such settlement. In determining amounts payable pursuant to this Section 14(b),
any loss, claim, damage, liability or expense (i) incurred by any person
controlling any Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, and (ii) for which such Underwriter actually
receives indemnification pursuant to Section 14(a) above or contribution or
indemnification pursuant to the Underwriting Agreement, shall reduce the amount
payable pursuant to this Section 14(b) by the amount so incurred and received.
If any Underwriter or Underwriters default in their obligations to make any
payments under this Section 14(b), then, without relieving such defaulting
Underwriter of its liability hereunder, each nondefaulting Underwriter shall be
obligated to pay its proportionate share of all defaulted payments.
15. Blue Sky Matters. You will not have any responsibility with respect to
the right of any Underwriter or other person to sell any of the Registered Units
in any jurisdiction, notwithstanding any information that we may furnish in that
connection. We understand that you will file a New York Further State Notice, if
required, and we authorize you to take such other action as may be necessary or
advisable to qualify the Securities for offering and sale in any jurisdiction.
16. Notices. Any notice from you to us will be deemed to have been duly
given if mailed or sent by facsimile transmission to us at our address and
facsimile number set forth below. Any notice to you shall be deemed to have been
given if mailed or sent by facsimile transmission to Tejas Securities Group,
Inc., 1250 Capital of Xxxxx Xxx. Xxxxx Xxxxxxxx Xxx, Xxxxx 000, Xxxxxx, Xxxxx
00000, attention: Xxxxxx X. Xxxxx, III, facsimile number (000) 000-0000. Mailed
notices shall be sent by registered mail, return receipt requested. Notices
shall be effective upon receipt.
17. Miscellaneous.
(a) We authorize you to file with any governmental agency any
reports required to be filed by you in connection with the transactions
contemplated by this Agreement or the Underwriting Agreement, and we will
furnish any information in our possession needed for such reports.
(b) In connection with the transactions contemplated by this
Agreement or the Underwriting Agreement, we will not advertise over our name
until after the first public advertisement made by you and then only at our own
expense and risk. We authorize you to exercise complete discretion with regard
to the first public advertisement.
(c) We hereby confirm (i) that we have examined the
Registration Statement and the Prospectus and are familiar with the proposed
further amendment thereto or final Prospectus, (ii) that the information therein
is correct and is not misleading insofar as it relates to us and (iii) that we
are willing to accept the responsibilities under the Act of an Underwriter named
in such Registration Statement. You are authorized, in your discretion, on our
behalf, to approve of or to object to any further amendments or supplements to
the Registration Statement or the Prospectus.
(d) We confirm that we are actually engaged in the investment
banking or securities business and are either (i) a member in good standing of
the National Association of Securities Dealers, Inc. (the "NASD") and our
commitment to purchase Registered Units pursuant to the Underwriting Agreement
will not result in a violation of the financial responsibility requirements of
Rule l5c3-1 under the Exchange Act, or of any similar provisions of any
applicable rules of any securities exchange to which we are subject or of any
restriction imposed upon us by any such exchange or any governmental authority
or (ii) a foreign dealer not eligible for membership in the NASD who hereby
agrees to make no sales within the United States, its territories or its
possessions (except that we may participate in sales to Dealers and others under
Section 4 hereof) or to persons who are citizens thereof or residents therein.
In making sales of Registered Units, if we are such a member, we agree to comply
with all applicable rules of the NASD, including, without limitation, the
Interpretation of the Board of Governors of the NASD with Respect to Free-Riding
and Withholding and Sections 8, 24 and 36 of Article III of the NASD's Rules of
Fair Practice, or, if we are such a foreign dealer, we agree to comply with such
Interpretation and Sections 8, 24 and 36 of such Article as though we were such
a member and Section 25 of such Article as that Section applies to a non-member
foreign dealer.
(e) We confirm that the ratio of our aggregate indebtedness to
our net capital is such that we may, in accordance with and pursuant to Rule
l5c3-1 under the Exchange Act, obligate ourselves to purchase, and purchase, the
number of Registered Units that we agree to purchase under the Underwriting
Agreement.
(f) This Agreement will be governed by, and construed in
accordance with, the laws of the State of Washington without reference to
Washington' conflict of laws rules.
(g) This Agreement may be signed in any number of counterparts
which taken together shall constitute one and the same instrument.
Very truly yours,
NAME:
By:
Address:
Facsimile.:
NAME:
By:
Address:
Facsimile No.:
NAME:
By:
Address:
Facsimile No.:
NAME:
By:
Address:
Facsimile No.:
Confirmed as of the date first written:
TEJAS SECURITIES GROUP, INC.
By:
Xxxxxx X. Xxxxx, III
