AUDIOVOX CORPORATION
000 XXXXXX XXXXXXXXX
XXXXXXXXX, XXX XXXX 00000
DEALER MANAGER AGREEMENT
------------------------
Xxxxxx 00, 0000
Xxxxxxxxx Xxxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
1. The Offer. Audiovox Corporation, a Delaware corporation (AAudiovox@ or
the ACompany@), is making a tender offer (hereinafter referred to,
together with any amendments, supplements or extensions thereof, as
the "Offer") to purchase all of its issued and outstanding common
stock purchase warrants exercisable at $7.125 per share of common
stock (the "Warrants"), on the terms and subject to the conditions set
forth in the Offer to Purchase and Letter of Transmittal (the "Letter
of Transmittal") attached hereto as Exhibit A.
2. Appointment as Dealer Manager. The Company hereby appoints you as
Dealer Manager (the "Dealer Manager"), and authorizes you to act as
such in connection with the Offer. As Dealer Manager, you agree, in
accordance with your customary practice, to perform those services in
connection with the Offer as are customarily performed by investment
banks in connection with tender offers of a like nature, including,
but not limited to, communicating generally regarding the Offer with
brokers, dealers, commercial banks and trust companies and similar
holders of the Warrants. In such capacity, you shall act as an
independent contractor, and each of your duties arising out of your
engagement pursuant to this Agreement shall be owed solely to the
Company.
The Company further authorizes you to communicate with Continental
Stock Transfer & Trust Company, in its capacity as depositary (the
"Depositary"), with respect to matters relating to the Offer. The
Company has instructed the Depositary to advise you as often as you
request, but no more than daily, as to the number of Warrants which
have been tendered pursuant to the Offer and as to such other matters
in connection with the Offer as you may reasonably request.
Notwithstanding the foregoing, nothing set forth in this Agreement
shall require you to continue to perform your obligations hereunder
(i) for the period of time during which any restraining, injunctive or
other similar order shall remain in effect with respect to the Offer
or with respect to any of the transactions in connection with, or
contemplated by, the Offer or this Agreement if, after consultation
with the Company, in your good faith judgment, you believe it is
inadvisable for you to render your services as Dealer Manager
hereunder, or (ii) if your continuing so to act would, after
consultation with the Company, in your good faith judgment, violate
any statute, regulation or other law of the United States or any state
or other jurisdiction thereof applicable to the Offer.
3. No Liability for Acts of Dealers, Banks and Trust Companies. You shall
have no liability to the Company or any other person for any losses,
claims, damages, liabilities and expenses (each a "Loss" and
collectively, the "Losses") arising from any act or omission on the
part of any broker or dealer in securities (a "Dealer"), bank or trust
company, or any other person, and neither you nor any of your
affiliates shall be liable for any Losses arising from your own acts
or omissions in performing your obligations as Dealer Manager or as a
Dealer hereunder or otherwise in connection with the Offer, except for
any such Losses which are finally judicially determined to have
resulted primarily and directly from your fraud, bad faith or gross
negligence or to have resulted primarily and directly from your breach
of this Agreement. In soliciting or obtaining tenders, no Dealer, bank
or trust company is to be deemed to be acting as your agent or the
agent of the Company or any of its affiliates, and you, as Dealer
Manager, are not to be deemed the agent of any Dealer, bank or trust
company or the agent or fiduciary of the Company or any of its
affiliates, equity holders, creditors or of any other person. You
shall not be and shall not be deemed for any purpose to act as a
partner or joint venturer of or a member of a syndicate or group with
the Company or any of its affiliates in connection with the Offer, any
purchase of the Warrants, or otherwise, and neither the Company nor
any of its affiliates shall be deemed to act as your agent. The
Company shall have sole authority for the acceptance or rejection of
any and all tenders.
4. The Offer Material. The Company agrees to furnish you, at their
expense, with as many copies as you may reasonably request of the
Letter of Transmittal, the Offer Statement on Schedule 13E-4 (together
with all exhibits, amendments and supplements thereto, the "Schedule")
filed or to be filed by the Company with the Securities and Exchange
Commission (the "Commission") and any other documents filed or to be
filed with the Commission as exhibits to the Schedule (including,
without limitation, press releases, advertisements and other
communications), all statements and other documents filed or to be
filed with the Commission or any other federal, state, local or
foreign governmental or regulatory authorities or any court (each an
"Other Agency" and collectively, the "Other Agencies") and any
amendments or supplements to any such statements and documents (the
definitive forms of all of the foregoing materials are hereinafter
collectively referred to as the "Offer Material") to be used by the
Company in connection with the Offer, and you are authorized to use
copies of the Offer Material in connection with the Offer. The Offer
Material has been or will be prepared and approved by, and is the sole
responsibility of, the Company.
You hereby agree, as Dealer Manager, that you will not disseminate any
written material for tenders of the Warrants pursuant to the Offer
other than the Offer Material, and you agree that you will not make
any statements other than the statements that are set forth in the
Offer Material or as otherwise authorized by the Company.
The Company agrees that no Offer Material will be used in connection
with the Offer or filed with the Commission or any Other Agency with
respect to the Offer without first consulting with the Dealer Manager.
In the event that the Company uses or permits the use of any Offer
Material in connection with the Offer or files any such material with
the Commission or any Other Agency without your prior approval of any
material change, then you shall be entitled to withdraw as Dealer
Manager in connection with the Offer without any liability or penalty
to you or any Indemnified Person (as hereinafter defined), and you
shall remain entitled to the indemnification provided in Section 11
hereof and to receive the payment of all fees and expenses payable
under this Agreement which have accrued to the date of such withdrawal
or would otherwise be due to you on such date. If you withdraw as
Dealer Manager, the fees accrued and reimbursement for your expenses
through the date of such withdrawal shall be paid to you promptly
after such date. In addition, the Company has the right to terminate
this Agreement if you shall have breached, in any material respect,
any of your material representations, warranties, agreements or
covenants herein.
5. Compensation. The Company agrees to pay you, as compensation for your
services as Dealer Manager in connection with the Offer, a fee of $.04
per Warrant for each Warrant validly tendered and not withdrawn in the
Offer, to be offset against the fee of $25,000, payable on the date
hereof by the Company.
6. Expenses of Dealer Manager and Others. In addition to your
compensation for your services hereunder pursuant to Section 5 hereof,
the Company agrees to pay directly, or reimburse you, as the case may
be, for (i) all expenses incurred by you relating to the preparation,
printing, filing, mailing and publishing of all Offer Material, (ii)
all fees and expenses of the Depositary, (iii) all advertising charges
in connection with the Offer, including those of any public relations
firm or other person or entity rendering services in connection
therewith, to the extent there are any, (iv) all fees, if any, payable
to Dealers (including you), and banks and trust companies as
reimbursement for their customary mailing and handling expenses
incurred in forwarding the Offer Material to their customers and (v)
all other reasonable fees and expenses incurred by you in connection
with the Offer or otherwise in connection with the performance of your
services hereunder (including fees and disbursements of your legal
counsel, not to exceed $11,000). All payments to be made by the
Company pursuant to this Section 6 shall be made promptly against
delivery to the Company of statements therefor. The Company shall be
liable for the foregoing payments whether or not the Offer is
commenced, withdrawn, terminated or canceled prior to the purchase of
any Warrants or whether the Company or any of its subsidiaries or
affiliates acquires any Warrants pursuant to the Offer or whether you
withdraw pursuant to Section 4 hereof, unless the Dealer Manager has
materially breached any of its material obligations under this
Agreement.
7. Warrantholder Lists. The Company will cause you to be provided with
cards or lists or other records in such form as you may reasonably
request showing the names and addresses of, and the number of Warrants
held by, the holders of Warrants as of a recent date and will cause
you to be advised from day to day during the period of the Offer as to
any transfers of record of Warrants. You agree that you will use such
information only in connection with the Offer.
8. Sufficient Funds. The Company represents and warrants to you that it
has or, at the time it becomes obligated to purchase Warrants under
the Offer, will have, sufficient funds to enable it to pay, and the
Company hereby agrees that it will pay promptly, in accordance with
the terms and conditions of the Offer and Sections 5 and 6 hereof, the
purchase price (and related costs) for the Warrants which the Company
has offered, and which the Company may be required, to purchase under
the Offer, and the fees and expenses payable hereunder, subject to the
Company's right, as and to the extent set forth in the Offer Materials
or as otherwise permitted by law, not to purchase Warrants.
9. Additional Representations and Warranties of the Company. The Company
represents and warrants to you that:
a) The Company is a corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its
incorporation and is duly qualified to transact business and is
in good standing in each jurisdiction in which the conduct of its
business or the ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or to be in good standing, considering all such cases
in the aggregate, would not have a material adverse effect on the
business, properties, financial position or results of operations
of the Company and all of its subsidiaries and affiliates taken
as a whole, as the case may be.
b) The Company has full corporate power and authority to take and
has duly taken all necessary corporate action to authorize (i)
the Offer (including any related borrowings by the Company or any
of its subsidiaries or affiliates), (ii) the purchase by the
Company of Warrants pursuant to the Offer and (iii) the
execution, delivery and performance of this Agreement, and this
Agreement has been duly executed and delivered on behalf of the
Company and, assuming due authorization, execution and delivery
of this Agreement by you, is a legal, valid and binding
obligation of the Company enforceable against it in accordance
with its terms, except that (a) the enforceability hereof may be
limited by (x) bankruptcy, insolvency, reorganization, moratorium
and other laws now or hereafter in effect relating to creditors'
rights generally and (y) general principles of equity and (b)
indemnification and contribution provisions contained herein may
not be enforceable.
c) The Company has duly filed, or will have duly filed the Schedule
as required by and pursuant to the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated by
the Commission thereunder (collectively, the "Exchange Act"),
copies of which (including the documents filed or to be filed
therewith as exhibits thereto) in the form filed or to be filed,
have been or will be promptly furnished to you. The Schedule
complies, and all forms of all such other Offer Material to be
filed with the Commission or published or distributed to holders
of the Warrants will comply, in all material respects, with the
applicable provisions of the Exchange Act, and neither the
Schedule nor any of such other Offer Material contains or will
contain any untrue statement of a material fact or omits or will
omit to state a material fact required to be stated therein or
necessary to make the statements made therein, in light of the
circumstances under which they are made, not misleading;
provided, however, that no representation is made with respect to
any statements contained in, or any matter omitted from, the
Schedule or any other Offer Material in reliance upon and in
conformity with information furnished or confirmed in writing by
you to the Company expressly for use therein.
d) The Company will file, as required, any and all necessary
amendments or supplements to the Schedule and the other documents
filed with the Commission relating to the Offer and will promptly
furnish to you true and complete copies of each such amendment
and supplement upon the filing thereof.
e) The Offer (including any related borrowings by the Company or any
of its subsidiaries or affiliates), the purchase by the Company
of Warrants pursuant to the Offer, and the execution, delivery
and performance of this Agreement by the Company, comply and will
comply in all material respects with all applicable requirements
of federal, state, local and foreign law, including, without
limitation, any applicable regulations of the Commission and
Other Agencies, and all applicable judgments, orders or decrees;
and no consent, authorization, approval, order, exemption,
registration, qualification or other action of, or filing with or
notice to, the Commission or any Other Agency is required in
connection with the execution, delivery and performance of this
Agreement by the Company, the making or consummation by the
Company of the Offer or the consummation of the other
transactions contemplated by this Agreement, except where the
failure to obtain or make such consent, authorization, approval,
order, exemption, registration, qualification or other action or
filing or notification would not materially adversely affect the
ability of the Company to execute, deliver and perform this
Agreement or to commence and consummate the Offer in accordance
with its terms. All such required consents, authorizations,
approvals, orders, exemptions, registrations, qualifications and
other actions of and filings with and notices to the Commission
and the Other Agencies will have been obtained, taken or made, as
the case may be, and all statutory or regulatory waiting periods
will have elapsed, prior to the purchase of the Warrants pursuant
to the Offer.
f) The Offer (including any related borrowings by the Company or any
of its subsidiaries or affiliates), the purchase of the Warrants
by the Company pursuant to the Offer, and the execution, delivery
and performance of this Agreement by the Company, do not and will
not (i) conflict with or result in a violation of any of the
provisions of the certificate of incorporation or by-laws (or
similar organizational documents) of the Company, (ii) conflict
with or violate in any material respect any law, rule,
regulation, order, judgment or decree applicable to the Company
or by which any property or asset of the Company or any of its
subsidiaries is or may be bound or (iii) result in a breach of
any of the material terms or provisions of, or constitute a
default (with or without due notice and/or lapse of time) under,
any loan or credit agreement, indenture, mortgage, note or other
material agreement or instrument to which the Company or any of
its subsidiaries is a party or by which any of them or any of
their respective properties or assets is or may be bound, except
that clauses (ii) and (iii) do not apply to conflicts or
violations which would not have a material adverse effect on the
Company.
g) No stop order, restraining order or denial of an application for
approval has been issued and no investigation, proceeding or
litigation has been commenced or, to the best of the Company=s
knowledge, threatened before the Commission or any Other Agency
with respect to the making or consummation of the Offer
(including the obtaining or use of funds to purchase Warrants
pursuant thereto) or the consummation of the other transactions
contemplated by this Agreement or with respect to the ownership
of the Warrants by the Company or any of its subsidiaries or
affiliates.
h) The Company is not, nor will it be as a result of the purchase by
the Company of Warrants that it may become obligated to purchase
pursuant to the terms of the Offer, an "investment company" under
the Investment Company Act of 1940, as amended, and the rules and
regulations promulgated by the Commission thereunder.
i) Each of the representations and warranties set forth in this
Agreement will be true and correct on and as of the date on which
the Offer is commenced and on and as of the date on which any
Warrants are purchased pursuant to the Offer.
10. Notification of Certain Events. The Company shall advise you promptly
of (i) the occurrence of any event which could cause the Company to
withdraw rescind or terminate the Offer or would permit it to exercise
any right not to purchase Warrants tendered under the Offer, (ii) the
occurrence of any event, or the discovery of any fact, the occurrence
or existence of which it believes would require the making of any
change in any of the Offer Material then being used or would cause any
representation or warranty contained in this Agreement to be untrue or
inaccurate in any material respect, (iii) any proposal or requirement
to make, amend or supplement any filing required by the Exchange Act
in connection with the Offer or to make any filing in connection with
the Offer pursuant to any other applicable law, rule or regulation,
(iv) the issuance by the Commission or any Other Agency of any comment
or order or the taking of any other action concerning the Offer (and,
if in writing, will furnish you with a copy thereof), (v) any material
developments in connection with the Offer or the financing thereof,
including, without limitation, the commencement of any lawsuit
concerning the Offer and (vi) any other information relating to the
Offer, the Offer Material or this Agreement which you may from time to
time reasonably request.
11. Indemnification.
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a) The Company agrees to hold harmless and indemnify you (including
any affiliated companies) and any officer, director, partner,
shareholder, employee or agent (including, for the purposes of
this Section 11, any broker-dealer acting on your behalf and at
your request in connection with the Offer) of you or any of such
affiliated companies and any entity or person controlling (within
the meaning of Section 20(a) of the Exchange Act) you, including
any affiliated companies (collectively, the "Indemnified
Persons"), from and against any and all Losses whatsoever
(including, but not limited to, any and all expenses incurred in
investigating, preparing or defending against any litigation or
proceeding, commenced or threatened, or any claims whatsoever
whether or not resulting in any liability) (i) arising out of or
based upon any untrue statement or alleged untrue statement of a
material fact contained in the Offer Material, the Schedule or in
any other material used by the Company, or authorized by the
Company in writing for use in connection with the Offer or the
transactions contemplated thereby, or arising out of or based
upon the omission or alleged omission to state in any such
document a material fact required to be stated therein or
necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading (other
than statements or omissions made in reliance on information
furnished by you to the Company expressly for use therein), (ii)
arising out of or based upon any withdrawal by the Company of, or
failure by the Company to make or consummate, the Offer or the
transactions contemplated thereby or any other failure to comply
with the terms and conditions specified in the Offer Material,
(iii) arising out of the breach or alleged breach by the Company
of any representation, warranty or covenant set forth in this
Agreement, or (iv) otherwise arising out of, relating to or in
connection with the Offer, the other transactions described in
the Offer Material or your services as Dealer Manager hereunder.
The Company shall not, however, be responsible for any Loss
pursuant to clause (iv) of the preceding sentence of this Section
11(a) which has been finally judicially determined to have
resulted primarily and directly from the bad faith or gross
negligence on the part of any Indemnified Person, other than any
Loss arising out of or resulting from actions performed at the
request of, with the consent of, or in conformity with actions
taken or omitted to be taken by, the Company.
b) The Company and you agree that if any indemnification sought by
any Indemnified Person pursuant to this Section 11 is unavailable
for any reason or insufficient to hold you harmless, then the
Company and you shall contribute to the Losses for which such
indemnification is held unavailable or insufficient in such
proportion as is appropriate to reflect the relative benefits
received (or anticipated to be received) by the Company, on the
one hand, and actually received by you, on the other hand, in
connection with the transactions contemplated by this Agreement
or, if such allocation is not permitted by applicable law, not
only such relative benefits but also the relative faults of the
Company, on the one hand, and you, on the other hand, as well as
any other equitable considerations, subject to the limitation
that in any event the aggregate contribution by you to all Losses
with respect to which contribution is available hereunder shall
not exceed the fees actually received by you in connection with
your engagement hereunder. It is hereby agreed that the relative
benefits to the Company, on the one hand, and you, on the other
hand, with respect to the Offer and the transactions contemplated
thereby shall be deemed to be the same proportion as (i) the
total value paid or proposed to be paid to holders of the
Warrants pursuant to the Offer (whether or not the Offer or such
transactions are consummated) bears to (ii) the fees actually
received by you from the Company in connection with your
engagement hereunder.
c) The foregoing rights to indemnity and contribution shall be in
addition to any other right which you and the other Indemnified
Persons may have against the Company at common law or otherwise.
If any litigation or proceeding is brought against any
Indemnified Person in respect of which indemnification may be
sought against the Company pursuant to this Section 11, such
Indemnified Person shall promptly notify the Company in writing
of the commencement of such litigation or proceeding, but the
failure so to notify the Company shall relieve the Company from
any liability which it may have hereunder only if, and to the
extent that, such failure results in the forfeiture by the
Company of substantial rights and defenses, and will not in any
event relieve the Company from any other obligation or liability
that they may have to any Indemnified Person other than under
this Agreement. In case any such litigation or proceeding shall
be brought against any Indemnified Person and such Indemnified
Person shall notify the Company in writing of the commencement of
such litigation or proceeding, the Company shall be entitled to
participate in such litigation or proceeding, and, after written
notice from the Company to such Indemnified Person, to assume the
defense of such litigation or proceeding with counsel of its
choice at its expense; provided, however, that such counsel shall
be satisfactory to the Indemnified Person in the exercise of its
reasonable judgment. Notwithstanding the election of the Company
to assume the defense of such litigation or proceeding, such
Indemnified Person shall have the right to employ separate
counsel and to participate in the defense of such litigation or
proceeding, and the Company shall bear the reasonable fees, costs
and expenses of such separate counsel and shall pay such fees,
costs and expenses at least quarterly (provided that with respect
to any single litigation or proceeding or with respect to several
litigations or proceedings involving substantially similar legal
claims, the Company shall not be required to bear the fees, costs
and expenses of more than one such counsel) if (i) in the
reasonable judgment of such Indemnified Person the use of counsel
chosen by the Company to represent such Indemnified Person would
present such counsel with a conflict of interest, (ii) the
defendants in, or targets of, any such litigation or proceeding
include both an Indemnified Person and the Company, and such
Indemnified Person shall have been advised by its counsel that
representation of such Indemnified Person and the Company by the
same counsel would be inappropriate under applicable standards of
professional conduct due to actual or potential differing
interests between them (in which case the Company shall not have
the right to direct the defense of such action on behalf of the
Indemnified Person), (iii) the Company shall not have employed
counsel satisfactory to such Indemnified Person, in the exercise
of the Indemnified Person's reasonable judgment, to represent
such Indemnified Person within a reasonable time after notice of
the institution of such litigation or proceeding or (iv) the
Company shall authorize in writing such Indemnified Person to
employ separate counsel at the expense of the Company. In any
action or proceeding the defense of which the Company assumes,
the Indemnified Person shall have the right to participate in
such litigation and retain its own counsel at such Indemnified
Person's own expense. The Company and you agree to notify the
other promptly of the assertion of any claim against it, any of
its officers or directors or any entity or person who controls it
within the meaning of Section 20(a) of the Exchange Act in
connection with the Offer. The foregoing indemnification
commitments shall apply whether or not the Indemnified Person is
a formal party to such litigation or proceeding.
d) The Company also agrees to reimburse each Indemnified Person for
reasonable out-of-pocket expenses (including fees and
disbursements of counsel) as they are incurred by such
Indemnified Person in connection with investigating, preparing
for, defending or providing evidence (including appearing as a
witness) with respect to any action, claim, investigation,
inquiry, arbitration or other proceeding referred to in this
Section 11 or enforcing this Agreement, whether or not in
connection with pending or threatened litigation in which any
Indemnified Person is a party.
e) The Company agrees that it will not, without your prior written
consent, settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding
in respect of which indemnification may be sought hereunder
(whether or not you, any other Indemnified Person or the Company
is an actual or potential party), unless such settlement,
compromise or consent includes an unconditional release of each
Indemnified Person from all liability arising out of such claim,
action or proceeding.
12. Conditions to Obligations of the Dealer Manager. Your obligations
hereunder shall at all times be subject to the conditions that (a) all
representations, warranties and other statements of the Company
contained herein are now, and at all times during the period of the
Offer shall be, true and correct in all material respects and (b) the
Company at all times shall have performed in all material respects all
of its obligations hereunder theretofore to be performed.
13. Termination. This Agreement shall terminate upon the expiration,
termination or withdrawal of the Offer or upon withdrawal by you, or
termination by us of you, as Dealer Manager pursuant to Section 4
hereof, it being understood that Sections 3, 5, 6, 8, 9, 11, 12, 14,
15, 16, 19, 20, 21 and 22 hereof shall survive any termination of this
Agreement.
14. Notices. All notices and other communications required or permitted to
be given under this Agreement shall be in writing and shall be given
(and shall be deemed to have been given upon receipt) by delivery in
person, by cable, by telecopy, by telegram, by telex, by registered or
certified mail (postage prepaid, return receipt requested) or by
recognized overnight delivery service (such as Federal Express) to the
applicable part at the addresses indicated below:
a) if to you:
Ladenburg Xxxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: 000-000-0000
Attention: Xxxx X. Xxxxxx
with a copy to:
Fulbright & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy No.: 000-000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
b) if to the Company:
Audiovox Corporation
000 Xxxxxx Xxxxxxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Telecopy No.: 000-000-0000
Attention: Xxxx X. Xxxxxx
with a copy to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
0 Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: 212-859-4000
Attention: Xxxxxx X. Xxxxxxx, Esq.
15. Consent to Jurisdiction: Service of Process. The Company hereby (a)
submits to the jurisdiction of any New York State or Federal court
sitting in the City of New York with respect to any actions and
proceedings arising out of or relating to this Agreement, (b) agrees
that all claims with respect to such actions or proceedings may be
heard and determined in such New York State or Federal court, (c)
waives the defense of an inconvenient forum, (d) agrees not to
commence any action or proceeding relating to this Agreement other
than in a New York State or Federal court sitting in the City of New
York and (e) agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided
by law.
16. Joint and Several Obligations, Etc. In the event that the Company
makes the Offer through one or more of its affiliates, each reference
in this Agreement to the Company shall be deemed to be a reference to
the Company and any such affiliates, and the representations,
warranties, covenants and agreements of the Company and any such
affiliates hereunder shall be joint and several.
17. Entire Agreement. This Agreement constitutes the entire agreement
among the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and
oral, among the parties, or any of them, with respect to the subject
matter hereof.
18. Amendment. This Agreement may not be amended except in writing signed
by each party to be bound thereby.
19. Governing Law. THE VALIDITY AND INTERPRETATION OF THIS AGREEMENT SHALL
BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE
LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED IN AND
TO BE PERFORMED IN THAT STATE WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES THEREOF.
20. Waiver of Jury Trial. THE COMPANY HEREBY AGREES ON ITS OWN BEHALF AND,
TO THE EXTENT PERMITTED BY APPLICABLE LAW, ON BEHALF OF ITS SECURITY
HOLDERS, TO WAIVE ANY RIGHT TO A TRIAL BY JURY WITH RESPECT TO ANY
CLAIM, COUNTERCLAIM OR ACTION ARISING OUT OF OR IN CONNECTION WITH
THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY (INCLUDING,
WITHOUT LIMITATION, THE OFFER).
21. Counterparts; Severability. This Agreement may be executed in two or
more separate counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same
instrument. Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such invalidity or unenforceability
without rendering invalid or unenforceable the remaining terms and
provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in
any other jurisdiction.
22. Parties in Interest. This Agreement, including rights to indemnity and
contribution hereunder, shall be binding upon and inure solely to the
benefit of each party hereto, the Indemnified Persons and their
respective successors, heirs and assigns, and nothing in this
Agreement, express or implied, is intended to or shall confer upon any
other person any right, benefit or remedy of any nature whatsoever
under or by reason of this Agreement.
Please indicate your willingness to act as Dealer Manager and your
acceptance of the foregoing provisions by signing in the space provided
below for that purpose and returning to us a copy of this Agreement so
signed, whereupon this Agreement and your acceptance shall constitute a
binding agreement between us.
Very truly yours,
AUDIOVOX CORPORATION
By:
--------------------------------
Xxxxxxx X. Xxxxxx
Senior Vice President
and Chief Financial Officer
Accepted as of the
date first above written:
LADENBURG XXXXXXXX & CO. INC.
By:
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Xxxx X. Xxxxxx
Managing Director
