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2,600,000 Shares of Common Stock
THE MEN'S WEARHOUSE, INC.
UNDERWRITING AGREEMENT
_____________, 1997
BEAR, XXXXXXX & CO. INC.
XXXXXX XXXXXXX & CO. INCORPORATED
PAINEWEBBER INCORPORATED
XXXXXXXXX, XXXXXXXX & COMPANY LLC
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Ladies and Gentlemen:
The Men's Wearhouse , Inc., a Texas corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to you, Bear, Xxxxxxx & Co. Inc., Xxxxxx Xxxxxxx & Co. Incorporated, PaineWebber
Incorporated, and Xxxxxxxxx, Xxxxxxxx & Company LLC (collectively, "you" or the
"Underwriters"), 1,000,000 shares of common stock, par value $0.01 per share, of
the Company ("Common Stock"), and the undersigned selling shareholders of the
Company named in Schedule II hereto (the "Selling Shareholders") propose,
subject to the terms and conditions stated herein, to sell to the Underwriters
an additional 1,600,000 shares of Common Stock. The preceding aggregate
2,600,000 shares of Common Stock is herein referred to as the "Firm Shares." In
addition, for the sole purpose of covering over-allotments in connection with
the sale of the Firm Shares, the Selling Shareholders propose to sell to the
Underwriters, at the option of the Underwriters, up to an additional 390,000
shares of Common Stock (the "Additional Shares"). The Firm Shares and any
Additional Shares purchased by the Underwriters are herein referred to as the
"Shares."
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1. Representations and Warranties of the Company and the Selling
Shareholders.
A. The Company represents and warrants to, and agrees
with, each of the several Underwriters that:
(a) The Company has filed with the Securities and
Exchange Commission (the "Commission") a registration statement on
Form S-3 (Registration No. 333-____), for the registration of the
Shares under the Securities Act of 1933, as amended (the "Act"). Such
registration statement, as may be amended by an amendment or
amendments thereto, including the prospectus, financial statements,
exhibits and all other documents filed as a part thereof, when it
shall become effective, is herein called the "Registration Statement";
and the prospectus, in the form first filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations under the Act
(the "Regulations"), is herein called the "Prospectus." The term
"Preliminary Prospectus" as used herein means any preliminary
prospectus relating to the Shares as described in Rule 430 of the
Regulations. Any reference herein to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant
to Item 12 of Form S-3 which were filed under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), on or before the
effective date of the Registration Statement, the date of any
Preliminary Prospectus or the date of the Prospectus, as the case may
be, and any reference herein to the terms "amend," "amendment," or
"supplement" with respect to the Registration Statement, any
Preliminary Prospectus or the Prospectus shall be deemed to refer to
and include (i) the filing of any document under the Exchange Act
after the effective date of the Registration Statement, the date of
such Preliminary Prospectus or the date of the Prospectus, as the case
may be, which is incorporated therein by reference and (ii) any such
document so filed.
(b) Neither the Commission nor the Blue Sky or
securities authority of any jurisdiction has issued a stop order
suspending the effectiveness of the Registration Statement, preventing
or suspending the use of any Preliminary Prospectus, the Prospectus,
the Registration Statement, or any amendment or supplement thereto,
refusing to permit the effectiveness of the Registration Statement, or
suspending the registration or qualification of the Shares, nor, to
the Company's knowledge, has any of such authorities instituted or
threatened to institute any proceedings with respect to a stop order.
(c) When the Registration Statement shall become
effective, when any amendment to the Registration Statement becomes
effective, when the Prospectus is first filed with the Commission
pursuant to Rule 424(b) of the Regulations, when any supplement to or
amendment of the Prospectus is filed with the Commission, and at the
Closing Date, and the Additional Closing Date, if any (as hereinafter
respectively defined), the Registration Statement and the Prospectus
and any amendments thereof and supplements thereto will comply in all
material respects with the applicable provisions of the Act and the
Regulations and the Exchange Act and the rules and regulations
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thereunder and will not contain an untrue statement of a material fact
and will not omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading. At
the time of the first filing of the Preliminary Prospectus with the
Commission (whether filed as part of the Registration Statement for
the registration of the Shares or any amendment thereto or pursuant to
Rule 424(a) of the Regulations) and when any amendment thereof or
supplement thereto was first filed with the Commission, such
Preliminary Prospectus and any amendments thereof and supplements
thereto complied in all material respects with the applicable
provisions of the Act and the Regulations and the Exchange Act and the
rules and regulations thereunder and did not contain an untrue
statement of a material fact and did not omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they are
made, not misleading. No representation and warranty is made in this
subsection (c), however, with respect to any information contained in
or omitted from the Registration Statement or the Prospectus or the
Preliminary Prospectus or any amendment thereof or supplement thereto
in reliance upon and in conformity with information furnished in
writing to the Company by or on behalf of you as herein stated
expressly for use in connection with the preparation thereof. The
documents incorporated by reference in the Registration Statement and
the Prospectus, when they were first filed with the Commission,
complied in all material respects with the applicable provisions of
the Exchange Act and the rules and regulations of the Commission
thereunder; and any documents so filed and incorporated by reference
after the effective date of the Registration Statement shall, when
they are filed with the Commission, conform in all material respects
with the requirements of the applicable provisions of the Exchange Act
and the rules and regulations of the Commission thereunder.
(d) To the Company's knowledge, Deloitte & Touche
LLP, who have audited the consolidated financial statements, together
with the related schedules and notes, of the Company that are
incorporated by reference in the Registration Statement and whose
report is also incorporated by reference in the Registration
Statement, are independent public accountants with regard to the
Company as required by the Act and the Regulations.
(e) Each of the Company and The Men's Wearhouse
(Nevada) Inc., a Nevada corporation, TMW Texas General, Inc., a
California corporation, TMW Texas Limited, Inc., a California
corporation, Value Priced Clothing, Inc., a California corporation,
Value Priced Clothing II, Inc., a Texas corporation, and Value Priced
Liquidators, Inc., a Delaware corporation (the "Corporate
Subsidiaries"), has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation. Each of the Company and the Corporate Subsidiaries is
duly qualified and in good standing as a foreign corporation in each
jurisdiction in which the character or location of its properties
(owned, leased or licensed) or the nature or conduct of its business
makes such qualification necessary, except for those failures to be so
qualified or in good standing that will not in the aggregate have a
material adverse
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effect on the Company and the Subsidiaries (as hereinafter defined)
taken as a whole. TMW Texas Retail, L.P., a Texas limited partnership
(together with the Corporate Subsidiaries, the "Subsidiaries"), has
been duly formed and is validly existing as a limited partnership
under the Texas Revised Limited Partnership Act, as amended, with
partnership power and authority to own the properties it currently
owns and to conduct the business it currently conducts. Each of the
Company and the Corporate Subsidiaries has all corporate power and
authority, and all consents, approvals, authorizations, orders,
registrations, qualifications, licenses and permits of and from all
public, regulatory or governmental agencies and bodies, necessary to
own, lease and operate its properties and conduct its business as now
being conducted and as described in the Registration Statement and the
Prospectus, except where failure could not reasonably be expected to
have a material adverse effect on the Company and the Subsidiaries
taken as a whole.
(f) The Company has all requisite corporate power
and authority to issue, sell and deliver the Shares being issued,
sold, and delivered by it in accordance with and upon the terms set
forth in this Agreement, the Registration Statement and the
Prospectus. Those Shares have been duly authorized and, when
delivered and sold in accordance with this Agreement, will be validly
issued and outstanding and fully paid and nonassessable, will not have
been issued in violation of or subject to any preemptive or similar
rights to subscribe for such Shares or any restriction upon the
transfer of any shares of capital stock of the Company pursuant to its
articles of incorporation, bylaws or any agreement to which the
Company is a party or by which the Company is bound. The Common
Stock, including the Firm Shares and the Additional Shares, conforms
to the description thereof contained in the Registration Statement and
the Prospectus.
(g) All of the issued and outstanding shares of
Common Stock have been duly and validly authorized and issued, are
fully paid and nonassessable and were not issued in violation of or
subject to any preemptive rights. As of the date of this Agreement,
the Company had an authorized and outstanding capitalization as set
forth in the Registration Statement and the Prospectus. Except as set
forth in the Registration Statement, no holders of Common Stock or
other securities of the Company have registration rights with respect
to any securities of the Company, and all holders of securities of the
Company having rights to registration of shares of Common Stock, or
other securities, as a result of the filing of the Registration
Statement have, with respect to the offering contemplated thereby,
waived such rights or such rights have expired by reason of lapse of
time following notification of the Company's intent to file the
Registration Statement, or have included securities in the
Registration Statement pursuant to the exercise of such rights.
(h) The Company does not own or control, directly
or indirectly, any corporation, association or other entity other than
(i) the Subsidiaries and (ii) the joint venture between one of the
Corporate Subsidiaries, Value Priced Liquidators, Inc., and Xxxxxxx,
Xxxxxxxx & Associates, Inc. regarding the acquisition and liquidation
of certain assets of Kuppenheimer Men's Clothiers. All the
outstanding capital stock of the Corporate Subsidiaries is duly and
validly issued, fully paid and nonassessable and is
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owned by the Company free and clear of any liens, pledges,
encumbrances, claims, security interests and other defects in title
whatsoever.
(i) Neither the Company nor any Subsidiary is in
violation of its charter, bylaws or partnership agreement, as the case
may be, or in default in the performance or observance of any material
obligation, agreement, covenant or condition contained in any material
bond, debenture, note or other evidence of indebtedness or in any
material contract, indenture, mortgage, deed of trust, loan agreement,
lease, joint venture or other agreement or instrument to which the
Company or such Subsidiary is a party or by which any of their
properties may be bound, or in violation of any law, order, rule,
regulation, writ, injunction, judgment or decree of any court or
governmental agency or body, the violation of which could reasonably
be expected to have a material adverse effect on the Company and the
Subsidiaries taken as a whole.
(j) This Agreement has been duly and validly
authorized, executed and delivered by the Company and is a valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that (i) rights to
indemnity hereunder may be limited by federal or state securities laws
or public policy underlying such laws, (ii) such enforcement may be
subject to applicable federal or state bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other laws or
court decisions relating to or affecting creditors' rights generally
and (iii) such enforcement may be limited by equitable principles of
general applicability, including concepts of materiality,
reasonableness, good faith and fair dealing, equitable subordination
and the possible unavailability of specific performance or injunctive
relief (regardless of whether considered in a proceeding in equity or
at law or whether codified by statute).
(k) The execution and delivery of this Agreement
by the Company, the issuance and sale of the Shares by the Company,
the performance of the Company's obligations under this Agreement and
the consummation of the transactions contemplated hereby will not (i)
conflict with or result in a breach of any of the terms and provisions
of, or constitute a default (or an event which with notice or lapse of
time, or both, would constitute a default) or require consent under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
Subsidiary, pursuant to the terms of any agreement, instrument,
franchise, license or permit to which the Company or any Subsidiary is
a party or by which any of such entities or their respective
properties or assets may be bound, or (ii) violate or conflict with
any provision of the articles or certificate of incorporation, bylaws
or partnership agreement, as the case may be, of the Company or any
Subsidiary or any judgment, decree, order, statute, rule or regulation
of any court or any public, governmental or regulatory agency or body
having jurisdiction over the Company or any Subsidiary or any of their
respective properties or assets. No consent, approval, authorization,
order, registration, filing, qualification, license or permit of or
with any court or any public, governmental or regulatory agency or
body having jurisdiction over the Company or any Subsidiary or any of
their respective properties or assets, and no further approval or
authorization of any
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shareholder or the board of directors of the Company, or any other
person, is required for the execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated
hereby, including the issuance, sale and delivery of the Shares to be
issued, sold and delivered by the Company hereunder, except the
registration of the Shares under the Act and such consents, approvals,
authorizations, orders, registrations, filings, qualifications,
licenses and permits as may be required under state securities or Blue
Sky laws in connection with the Underwriters' purchase and
distribution of the Shares.
(l) The consolidated financial statements of the
Company, together with the related schedules and notes, forming a part
of the Registration Statement and the Prospectus, fairly present the
consolidated financial position and results of operations of the
Company and the Subsidiaries at the respective dates and for the
respective periods to which they apply. All consolidated financial
statements of the Company, together with the related schedules and
notes, incorporated by reference in the Registration Statement have
been prepared in accordance with generally accepted accounting
principles consistently applied throughout the periods involved,
except as may be otherwise stated therein. The selected and summary
financial and statistical data included in the Registration Statement
present fairly the information shown therein and have been compiled on
a basis substantially consistent with the financial statements
presented therein.
(m) Subsequent to the respective dates as of
which information is given in the Registration Statement and the
Prospectus, except as set forth in the Registration Statement and the
Prospectus, there has not been (i) any material adverse change in the
business, prospects, properties, operations, condition (financial or
otherwise) or results of operations of the Company and the
Subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, (ii) any transaction
that is material to the Company and the Subsidiaries taken as a whole,
except transactions in the ordinary course of business, (iii) any
obligation or liability, direct or contingent, incurred by the Company
or the Subsidiaries that is material to the Company and the
Subsidiaries taken as a whole, except obligations and liabilities
incurred or undertaken in the ordinary course of business, (iv) any
change in the capital stock of the Company or the Subsidiary or (v)
any dividend or distribution of any kind declared, paid or made on the
capital stock of the Company or the Subsidiary.
(n) Except as set forth in the Prospectus, there
is not pending or, to the Company's knowledge, threatened any action,
suit, claim or proceeding against the Company, the Subsidiaries or any
of their respective officers or any of their properties, assets or
rights before any court or governmental agency or body that could
reasonably be expected to have a material adverse effect on the
Company and the Subsidiaries taken as a whole or prevent the
consummation of the transactions contemplated herein. There are no
contracts or documents of the Company or the Subsidiary that are
required to be described in all material respects in the Prospectus or
to be filed as exhibits to the
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Registration Statement by the Act or the Regulations that have not
been accurately described in the Prospectus or filed as exhibits to
the Registration Statement.
(o) The Common Stock currently outstanding is
quoted on the Nasdaq National Market, and a notice with respect to the
Shares has been duly filed with, and the applicable fees have been
paid to, the Nasdaq National Market.
(p) The Company has not taken and will not take,
directly or indirectly, any action which constituted or which was
designed to constitute or which might be reasonably expected to cause
or result in stabilization or manipulation of the price of the shares
of Common Stock to facilitate the sale or resale of the Shares.
B. Each Selling Shareholder represents and warrants to,
and agrees with, each of the several Underwriters that:
(a) Such Selling Shareholder has (i) caused a
certificate or certificates for the number of Shares to be sold by
such Selling Shareholder hereunder to be delivered to Xxxxx X. Xxxxx,
endorsed in blank or with blank stock powers duly executed, with
signatures appropriately guaranteed, such certificate or certificates
to be held in the custody of Xxxxx X. Xxxxx, in accordance with the
terms of a custody agreement in the form heretofore delivered to you,
for delivery pursuant to the provisions hereof on the Closing Date and
Additional Closing Date, if any, and (ii) granted an irrevocable power
of attorney to Xxxxx X. Xxxxx, as such Selling Shareholder's
attorney-in-fact (the "Attorney-in-Fact") in the form heretofore
delivered to you (the custody agreement, together with the irrevocable
power of attorney, executed by such Selling Shareholder being
hereinafter collectively referred to as the "Custody Agreement").
(b) The execution, delivery and performance of
this Agreement and the Custody Agreement by or on behalf of such
Selling Shareholder and the consummation of the transactions
contemplated hereby and thereby will not (i) conflict with or result
in the breach of any of the terms and provisions of, or constitute a
default (or an event which with notice or lapse of time, or both,
would constitute a default) or require consent under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of such Selling Shareholder pursuant to the terms
of any agreement, trust agreement, instrument, franchise, license or
permit to which such Selling Shareholder is a party or by which such
Selling Shareholder or any of such Selling Shareholder's property or
assets may be bound, or (ii) violate or conflict with any judgment,
decree, order, statute, rule or regulation of any court or any public,
governmental or regulatory agency or body having jurisdiction over
such Selling Shareholder or such Selling Shareholder's properties or
assets.
(c) Such Selling Shareholder has, and at the time
of delivery of the Shares to be sold by such Selling Shareholder such
Selling Shareholder will have, full legal right, power, authority and
capacity, and, except as required under the Act and state
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securities and Blue Sky laws, all necessary consents, approvals,
authorizations, orders, registrations, filings, qualifications,
licenses and permits of and from all public, regulatory or
governmental agencies and bodies as are required for the execution,
delivery and performance of this Agreement and the Custody Agreement
and the consummation of the transactions contemplated hereby and
thereby, including the sale, assignment, transfer and delivery of the
Shares to be sold, assigned, transferred and delivered by such Selling
Shareholder hereunder.
(d) Each of this Agreement and the Custody
Agreement has been duly authorized (if applicable) and duly and
validly executed and delivered by such Selling Shareholder and is a
valid and binding obligation of such Selling Shareholder, enforceable
against such Selling Shareholder in accordance with its terms, except
to the extent that (i) rights to indemnity hereunder may be limited by
applicable federal or state securities laws or the public policy
underlying such laws, (ii) such enforcement may be subject to
applicable federal or state bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other laws or court decisions
relating to or affecting creditors' rights generally and (iii) such
enforcement may be limited by equitable principles of general
applicability, including concepts of materiality, reasonableness, good
faith and fair dealing, equitable subordination and the possible
unavailability of specific performance or injunctive relief
(regardless of whether considered in a proceeding in equity or at law
or whether codified by statute).
(e) Such Selling Shareholder has good, valid and
marketable title to the Shares to be sold by such Selling Shareholder
pursuant to this Agreement, free and clear of all liens, pledges,
encumbrances, claims, security interests, shareholders' agreements,
voting trusts, other defects in title whatsoever and restrictions on
transfer (other than those restrictions on transfer imposed by the Act
and the securities or Blue Sky laws of certain jurisdictions), with
full power to deliver such Shares hereunder, and upon the delivery of
and payment for such Shares as herein contemplated, each of the
Underwriters will acquire good, valid and marketable title to the
Shares purchased by it from such Selling Shareholder, free and clear
of all liens, pledges, encumbrances, claims, security interests,
shareholders' agreements, voting trusts, other defects in title
whatsoever and restrictions on transfer (other than those restrictions
on transfer imposed by the Act and the securities or Blue Sky laws of
certain jurisdictions).
(f) Such Selling Shareholder has not taken and
will not take, directly or indirectly, any action which constituted or
which was designed to constitute or which might be reasonably expected
to cause or result in stabilization or manipulation of the price of
the shares of Common Stock to facilitate the sale or resale of any of
the Shares.
(g) When the Registration Statement shall become
effective, when any amendment to the Registration Statement becomes
effective, when the Prospectus is first filed with the Commission
pursuant to Rule 424(b) of the Regulations, when any amendment of or
supplement to the Prospectus is filed with the Commission and at the
Closing Date and the Additional Closing Date, if any, such parts of
the Registration
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Statement and the Prospectus and any amendments thereof and
supplements thereto as they relate to such Selling Shareholder and are
based upon information furnished to the Company by or on behalf of
such Selling Shareholder expressly for use therein will not contain an
untrue statement of a material fact and will not omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances in which
they were made, not misleading. When the Preliminary Prospectus was
first filed with the Commission (whether filed as part of the
Registration Statement for the registration of the Shares or any
amendment thereto or pursuant to Rule 424(a) of the Regulations) and
when any amendment thereof or supplement thereto was first filed with
the Commission, such parts of the Preliminary Prospectus and any
amendments thereof and supplements thereto as they relate to such
Selling Shareholder and are based on information furnished to the
Company by or on behalf of such Selling Shareholder expressly for use
therein did not contain an untrue statement of a material fact and did
not omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances in which they were made, not misleading.
(h) The Xxxxxx Xxxxxx 1988 Living Trust (the
"Xxxxxx Trust") hereby represents and warrants that all of the
representations and warranties of the Company set forth in Section 1.A
above are true and accurate.
(i) Such Selling Shareholder (i) does not have
any preemptive right, co-sale right or right of first refusal or other
similar right to purchase any of the Shares that are to be sold by the
Company or any of the other Selling Shareholders to the Underwriters
pursuant to this Agreement, and (ii) does not own any warrants,
options or similar rights to acquire, and does not have any right or
arrangement to acquire, any capital stock, rights, warrants, options
or other securities from the Company.
(j) Such Selling Shareholder does not possess any
registration rights with respect to any securities of the Company.
2. Purchase, Sale and Delivery of the Shares. On the basis of the
representations, warranties, Covenants and agreements herein contained, but
subject to the terms and conditions herein set forth, (i) the Company agrees to
sell to the several Underwriters, and the Underwriters, severally and not
jointly, agree to purchase from the Company, at $_______ per share, the number
of Firm Shares set forth opposite the respective names of the Underwriters in
Column (1) of Schedule I hereto, and (ii) the Selling Shareholders, severally
and not jointly, agree to sell to the several Underwriters, and the
Underwriters, severally and not jointly, agree to purchase from the Selling
Shareholders, at $________ per share, the number of Firm Shares set forth
opposite the respective names of the Underwriters in Column (2) of Schedule I
hereto. The number of Firm Shares to be sold by each Selling Shareholder to
each Underwriter shall be the number which bears the same proportion to the
total number of Firm Shares to be sold by such Selling Shareholder, as
specified in Schedule II hereto, as the number of Firm Shares set forth
opposite the name of such Underwriter in Column (2) of Schedule I bears to the
total
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number of Firm Shares to be sold by all Selling Shareholders, subject to such
adjustments to eliminate any fractional shares as you in your sole discretion
shall make.
Delivery of certificates, and payment of the purchase price, for the
Firm Shares shall be made at the offices of Bear, Xxxxxxx & Co. Inc., 000 Xxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other location as may be mutually
acceptable. Such delivery and payment shall be made at 10:00 a.m., New York
time, on the fourth business day following the date the Registration Statement
becomes effective (unless such time and date are postponed in accordance with
the provisions of Section 9 hereof), or at such other time as shall be agreed
upon by you, the Selling Shareholders and the Company. The time and date of
such delivery and payment are herein called the "Closing Date." Delivery of the
certificates for the Firm Shares shall be made to the several Underwriters, or
to their representative for their respective accounts, against payment by the
several Underwriters through their representative of the purchase price for the
Firm Shares by wire transfer of next-day funds, to the accounts designated by
the Company and the Selling Shareholders at least one business day before the
Closing Date, or by certified or official bank checks, in next-day funds,
payable to the order of the Company and each Selling Shareholder.
Certificates for the Firm Shares shall be registered in such name or
names and in such authorized denominations as you may request in writing at
least two full business days prior to the Closing Date. The Company and the
Selling Shareholders will permit you to examine and package such certificates
for delivery at least one full business day prior to the Closing Date.
In addition, the Selling Shareholders hereby grant to the several
Underwriters the option to purchase up to 390,000 shares of Common Stock as the
Additional Shares at the same purchase price per share to be paid by the
several Underwriters to the Company and the Selling Shareholders for the Firm
Shares as set forth in this Section 2, for the sole purpose of covering
over-allotments in the sale of Firm Shares by the several Underwriters. This
option may be exercised at any time (but not more than once) on or before the
30th day following the effective date of the Registration Statement, by written
notice by you to the Selling Shareholders. Such notice shall set forth the
aggregate number of Additional Shares as to which the option is being exercised
and the date and time, as reasonably determined by you, when the Additional
Shares are to be delivered (such date and time being herein sometimes referred
to as the "Additional Closing Date"); provided, however, that the Additional
Closing Date shall not be earlier than the Closing Date or earlier than the
second full business day after the date on which the option shall have been
exercised nor later than the eighth full business day after the date on which
the option shall have been exercised (unless such time and date are postponed
in accordance with the provisions of Section 9 hereof). Certificates for the
Additional Shares shall be registered in such name or names and in such
authorized denominations as you may request in writing at least two full
business days prior to the Additional Closing Date. The Selling Shareholders
will permit you to examine and package such certificates for delivery at least
one full business day prior to the Additional Closing Date.
The number of Additional Shares to be sold to each Underwriter shall
be the number which bears the same ratio to the aggregate number of Additional
Shares being purchased as
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the number of Firm Shares set forth opposite the name of such Underwriter in
Column (2) of Schedule I hereto (or such number increased as set forth in
Section 9 hereof) bears to the total number of Firm Shares, subject, however,
to such adjustments to eliminate any fractional shares as you in your sole
discretion shall make. If less than all of the Additional Shares are purchased,
the Underwriters will purchase such Additional Shares from each Selling
Shareholder in the same proportion as the number of Firm Shares sold by such
Selling Shareholder bears to the total number of Firm Shares sold by all
Selling Shareholders. The allocation of the Additional Shares to be sold by the
Selling Shareholders shall be subject to such adjustments to eliminate any
fractional shares as you in your sole discretion shall make.
Payment for the Additional Shares shall be made by the several
Underwriters through their representative by wire transfer of next-day funds,
to the accounts designated by the Selling Shareholders at least one business
day before the Additional Closing Date, or by certified or official bank check,
in next-day funds, payable to the order of each Selling Shareholder at the
offices of Bear, Xxxxxxx & Co. Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
or such other location as may be mutually acceptable, upon delivery of the
certificates for the Additional Shares to the Underwriters or to their
representative for their respective accounts.
3. Offering. It is understood that after the Registration
Statement becomes effective, the Underwriters propose to offer the Shares for
sale to the public as set forth in the Prospectus.
4. Covenants of the Company and the Selling Shareholders.
A. The Company covenants and agrees with the several
Underwriters that:
(a) The Company will use its reasonable best
efforts to cause the Registration Statement and any amendment thereof
to become effective as promptly as possible and will notify you
immediately (i) when the Registration Statement and any amendments
thereto become effective, (ii) of any request by the Commission for
any amendment of or supplement to the Registration Statement or the
Prospectus or for any additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereto or of
the initiation, or the threatening, of any proceedings therefor, (iv)
of the receipt of any comments from the Commission, and (v) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threatening of any proceeding for
that purpose. If the Commission shall propose or enter a stop order
at any time, the Company will make every reasonable effort to prevent
the issuance of any such stop order and, if issued, to obtain the
lifting of such order as soon as possible.
(b) The Company will not file at any time,
whether before or after the effective date of the Registration
Statement, any amendment to the Registration Statement or any
amendment of or supplement to the Prospectus unless (i) you shall have
been provided a copy of such proposed amendment or supplement within a
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reasonable time before the proposed filing, (ii) such proposed
amendment or supplement complies in all material respects with the Act
and the Regulations, and (iii) you shall have provided your consent to
such proposed filing, which consent shall not be unreasonably
withheld.
(c) If at any time when a prospectus relating to
the Shares is required to be delivered under the Act, any event shall
have occurred as a result of which the Prospectus as then amended or
supplemented includes an untrue statement of a material fact or omits
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, or if it shall be
necessary at any time to amend or supplement the Prospectus or
Registration Statement to comply with the Act or the Regulations, or
to file under the Exchange Act so as to comply therewith any document
incorporated by reference in the Registration Statement or the
Prospectus or in any amendment thereof or supplement thereto, the
Company will notify you promptly and prepare and file with the
Commission an appropriate amendment or supplement (in form and
substance satisfactory to you) which will correct such statement or
omission or which will effect such compliance and will use its
reasonable best efforts to have any amendment to the Registration
Statement declared effective as soon as possible.
(d) The Company will promptly deliver to each of
you two copies of the executed Registration Statement, including
exhibits and all documents incorporated by reference therein and all
amendments thereto, and the Company will promptly deliver to each of
the Underwriters such number of copies of any Preliminary Prospectus,
the Prospectus, the Registration Statement, and all documents
incorporated by reference in the Registration Statement and Prospectus
or any amendment thereof or supplement thereto, without exhibits, if
any, as you may reasonably request.
(e) The Company will endeavor in good faith, in
cooperation with you, at or prior to the time the Registration
Statement becomes effective, to qualify the Shares for offering and
sale under the securities laws relating to the offering or sale of the
Shares in such jurisdictions as you may designate and to maintain such
qualification in effect for so long as required for the distribution
thereof; provided, however, the Company shall not be obligated under
this subsection (e) to qualify as a foreign corporation to do business
under the laws of any jurisdiction in which it is not qualified as of
the date of this Agreement.
(f) The Company will make generally available
(within the meaning of Section 11(a) of the Act) to its security
holders and to you as soon as practicable, but not later than 45 days
after the end of its fiscal quarter in which the first anniversary
date of the effective date of the Registration Statement occurs, an
earnings statement (which need not be audited, but which shall satisfy
the provisions of Section 11(a) of the Act) covering a period of at
least twelve consecutive months beginning after the effective date of
the Registration Statement.
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(g) During a period of 90 days from the effective
date of the Registration Statement, the Company will not, without your
prior written consent, issue, sell, offer or agree to sell, or
otherwise dispose of, directly or indirectly, any Common Stock (or any
securities convertible into, exercisable for or exchangeable for
Common Stock), and the Company will obtain the undertaking of each of
its officers and directors not to engage in any of the aforementioned
transactions on the Company's behalf, other than (i) the sale of
Shares hereunder or the Company's issuance of Common Stock upon the
exercise of presently outstanding stock options, (ii) sales of Common
Stock to the Company's Employee Stock Plan, consistent with past
practices of the Company, and (iii) issuances of options to purchase
Common Stock under the Company's employee and non-employee director
stock option plans in effect on the date hereof, provided such options
are not exercisable within such 90-day period. In addition,
notwithstanding anything to the contrary contained herein, during the
period of 90 days from the effective date of the Registration
Statement, the Company will not agree, without your prior written
consent, with any holder of options to purchase Common Stock to amend
or modify any such options, or take any other actions, to provide for
such options to become exercisable within such 90-day period.
(h) During a period of three years from the
effective date of the Registration Statement, the Company will furnish
to you copies of (i) all reports to its shareholders; and (ii) all
reports, financial statements and proxy or information statements
filed by the Company with the Commission, any national securities
exchange or the National Association of Securities Dealers, Inc.
("NASD").
(i) The Company will apply the net proceeds
available to it from the sale of the Shares as set forth under "Use of
Proceeds" in the Prospectus.
B. Each Selling Shareholder covenants and agrees with
the several Underwriters that:
(a) During a period of 90 days from the effective
date of the Registration Statement, no Selling Shareholder (including
such Selling Shareholder's successors, assigns, heirs and legatees)
will, without your prior written consent, sell, offer or agree to
sell, or otherwise dispose of, directly or indirectly, any Common
Stock other than such Selling Shareholder's Shares in accordance with
the terms of this Agreement and except that the Xxxxxx family
foundation shall not be subject to such restrictions on transfer.
Except as otherwise expressly provided in the immediately preceding
sentence, such Selling Shareholder agrees and consents to the entry of
stop-transfer instructions with the Company's transfer agent against
the transfer of shares of Common Stock held by such Selling
Shareholder during such 90-day period without your prior written
consent.
(b) Such Selling Shareholder will advise the
Attorney-in-Fact before the Closing Date or the Additional Closing
Date, as the case may be, if any statement to be made on behalf of
such Selling Shareholder in the certificate contemplated by Section
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6(f) would be inaccurate if made as of the Closing Date or the
Additional Closing Date, as the case may be.
(c) Such Selling Shareholder will cooperate with
the Company in endeavoring to qualify the Shares for offering and sale
under the securities laws relating to the offering or sale of the
Shares of such jurisdictions as you may designate and will make such
applications, file such documents, and furnish such information as may
be reasonably required for that purpose.
5. Payment of Expenses. Whether or not the transactions
contemplated in this Agreement are consummated or this Agreement is terminated,
the Company agrees to pay all costs and expenses incident to the performance of
the obligations of the Company and the Selling Shareholders hereunder,
including those in connection with (i) preparing, printing, duplicating, filing
and distributing the Registration Statement, as originally filed and all
amendments thereof (including all exhibits thereto), any Preliminary
Prospectus, the Prospectus and any amendments thereof or supplements thereto,
the underwriting documents (including this Agreement) and all other documents
related to the public offering of the Shares (including those supplied to the
Underwriters in quantities as hereinabove stated), (ii) the issuance, transfer
and delivery of the Shares to the Underwriters, including any transfer or other
taxes payable thereon, (iii) the qualification of the Shares under state or
foreign securities or Blue Sky laws, including the costs of printing and
mailing a preliminary and final "Blue Sky Survey" and the fees of counsel for
the Underwriters and such counsel's disbursements in relation thereto, (iv) the
inclusion of the Shares in the Nasdaq National Market, (v) the filing fees for
the review of the terms of the public offering of the Shares by the NASD, (vi)
the cost of printing certificates representing the Shares, and (vii) all other
costs and expenses incident to the performance of the Company's and the Selling
Shareholders' obligations hereunder and not otherwise specifically provided for
in this Section.
6. Conditions of Underwriters' Obligations. The obligations of
the several Underwriters to purchase and pay for the Firm Shares and the
Additional Shares, as provided herein, shall be subject to the accuracy of the
representations and warranties of the Company and the Selling Shareholders
herein contained, as of the date hereof and as of the Closing Date (or in the
case of the Additional Shares, as of the Additional Closing Date), to the
absence from any certificates, opinions, written statements or letters
furnished to you or to Gardere & Xxxxx, L.L.P. ("Underwriters' Counsel")
pursuant to this Section 6 of any misstatement or omission, to the performance
by the Company and the Selling Shareholders of their obligations hereunder, and
to the following additional conditions:
(a) The Registration Statement shall have become
effective not later than 5:00 p.m., New York time, on the date of this
Agreement or at such later time and date as shall have been consented
to in writing by you, and, at or prior to the Closing Date or the
Additional Closing Date, as the case may be, no stop order suspending
the effectiveness of the Registration Statement or any post-effective
amendment thereof shall have been issued and no proceedings therefor
shall have been initiated or threatened by the Commission.
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(b) At the Closing Date and the Additional
Closing Date, if any, you shall have received the opinion of Fulbright
& Xxxxxxxx L.L.P., counsel for the Company, dated the Closing Date or
the Additional Closing Date, as the case may be, addressed to the
Underwriters and in form and substance satisfactory to Underwriters'
Counsel, to the effect that:
(i) Each of the Company and the
Corporate Subsidiaries has been duly organized and is validly
existing as a corporation in good standing under the laws of
its jurisdiction of incorporation. Each of the Company and
the Corporate Subsidiaries is duly qualified and in good
standing as a foreign corporation in each jurisdiction in
which the character or location of its properties (owned,
leased or licensed) or the nature or conduct of its business
makes such qualification necessary, except for those failures
to be so qualified or in good standing that will not in the
aggregate have a material adverse effect on the Company and
the Corporate Subsidiaries taken as a whole. Each of the
Company and the Corporate Subsidiaries has all requisite
corporate power and authority to own, lease and license its
respective properties and conduct its business as described in
the Registration Statement and the Prospectus.
(ii) All of the issued and outstanding
shares of capital stock of the Corporate Subsidiaries have
been duly and validly issued and are fully paid and
nonassessable and free of statutory preemptive rights and, to
the knowledge of such counsel, are free of any other
preemptive rights and are owned by the Company, free and clear
of any adverse claim within the meaning of the Uniform
Commercial Code, as in effect in the State of New York (the
"UCC"), and to the knowledge of such counsel, there are no
outstanding options, warrants, or other rights to purchase, or
securities convertible into or exchangeable for, shares of
capital stock of any Corporate Subsidiary. TMW Texas Retail,
L.P., a Texas limited partnership, has been duly formed and is
validly existing as a limited partnership under the Texas
Revised Limited Partnership Act, as amended, with partnership
power and authority to own the properties it currently owns
and to conduct the business it currently conducts.
(iii) The authorized, issued and
outstanding capital stock of the Company is as set forth in
the Prospectus under the caption "Description of Capital
Stock" as of the date stated therein. All of the issued and
outstanding shares of Common Stock have been duly and validly
authorized and issued, are fully paid and nonassessable and
were not issued in violation of any statutory preemptive
rights, and to the knowledge of such counsel, were not issued
in violation of any other preemptive rights, co-sale right,
right of first refusal or other similar right.
(iv) The Shares to be issued and sold by
the Company to the Underwriters pursuant to this Agreement
have been duly and validly authorized and, upon issuance and
delivery against payment therefor in accordance with this
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Agreement, will be duly and validly issued, fully paid and
nonassessable and will not have been issued in violation of
any statutory preemptive rights, and to the knowledge of such
counsel, any other preemptive rights, co-sale right, right of
first refusal, or other similar right.
(v) The terms and provisions of the
capital stock of the Company conform in all material respects
to the description thereof contained in the Registration
Statement and the Prospectus.
(vi) The information in the Prospectus
under the caption "Description of Capital Stock," to the
extent it constitutes matters of law or legal conclusions, has
been reviewed by such counsel and is correct in all material
respects.
(vii) This Agreement has been duly and
validly authorized, executed and delivered by the Company and
is a valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms, except to
the extent that (1) rights to indemnity hereunder may be
limited by federal or state securities laws or public policy
underlying such laws, (2) such enforcement may be subject to
applicable federal or state bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other
laws or court decisions relating to or affecting creditors'
rights generally and (3) such enforcement may be limited by
equitable principles of general applicability, including
without limitation concepts of materiality, reasonableness,
good faith and fair dealing, equitable subordination and the
possible unavailability of specific performance or injunctive
relief (regardless of whether considered in a proceeding in
equity or at law or whether codified by statute).
(viii) The execution and delivery of this
Agreement by the Company, the issuance and sale of the Shares
by the Company, the performance of the Company's obligations
under this Agreement and the consummation of the transactions
contemplated hereby by the Company will not (1) result in a
breach of any of the terms and provisions of, or constitute a
default (or an event which with notice or lapse of time, or
both, would constitute a default) or require consent under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
Subsidiary pursuant to the terms of any agreement or
instrument filed as an exhibit to the Registration Statement
or any other agreement, instrument, franchise, license or
permit to which the Company or any Subsidiary is a party or by
which any of such entities or their respective properties or
assets may be bound and identified to such counsel as being
material and set forth on an exhibit to such opinion, or (2)
violate any provision of the articles or certificate of
incorporation, bylaws or partnership agreement, as the case
may be, of the Company or any Subsidiary, or, to the knowledge
of such counsel, any judgment, decree, order, statute, rule or
regulation of any court or any public, governmental or
regulatory agency or
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body having jurisdiction over the Company or any Subsidiary or
any of their respective properties or assets; provided,
however, that no opinion need be rendered concerning state
securities or Blue Sky laws.
(ix) To the knowledge of such counsel, no
consent, approval, authorization, order, registration, filing,
qualification, license or permit of or with any court or any
public, governmental or regulatory agency or body having
jurisdiction over the Company or any Subsidiary or any of
their respective properties or assets is required for the
execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby, except
for (1) such as may be required under state securities or Blue
Sky laws in connection with the purchase and distribution of
the Shares by the Underwriters (as to which such counsel need
express no opinion), and (2) such as have been made or
obtained under the Act.
(x) To the knowledge of such counsel,
(1) there is no litigation or governmental or other action,
suit, proceeding or investigation before any court or before
or by any public, regulatory or governmental agency or body
pending or threatened against, or involving the properties or
business of, the Company or any Subsidiary which is of a
character required to be disclosed in the Registration
Statement and the Prospectus and which has not been properly
disclosed therein, and (2) there are no statutes, regulations,
contracts or other documents that are required to be described
in the Registration Statement or the Prospectus or to be filed
as exhibits to the Registration Statement that are not
described or filed as required.
(xi) To the knowledge of such counsel,
except as set forth in the Registration Statement and the
Prospectus, no holders of Common Stock or other securities of
the Company have registration rights with respect to the
securities of the Company and all holders of securities of the
Company having rights to registration of shares of Common
Stock, or other securities, as a result of the filing of the
Registration Statement have, with respect to the offering
contemplated thereby, waived such rights or such rights have
expired by reason of lapse of time following notification of
the Company's intent to file the Registration Statement, or
have included securities in the Registration Statement
pursuant to the exercise of such rights.
(xii) The Registration Statement has
become effective under the Act, and, to the knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement or any post-effective amendment thereof
has been issued and no proceedings therefor have been
initiated or threatened by the Commission.
(xiii) As of the effective date of the
Registration Statement, the Registration Statement and the
Prospectus and any amendments thereof or
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supplements thereto (other than the financial statements and
schedules and other financial and statistical data included
therein, as to which such counsel need express no opinion)
complied as to form in all material respects with the
requirements of the Act and the Regulations. The documents
filed under the Exchange Act and incorporated by reference in
the Registration Statement and the Prospectus and in any
amendment thereof or supplement thereto (other than the
financial statements and schedules and other financial and
statistical data included or incorporated by reference
therein, as to which no opinion need be rendered) comply as to
form in all material respects with the Exchange Act and the
rules and regulations of the Commission thereunder.
In addition, such counsel shall state that, although they
assume no responsibility for the accuracy or completeness of the
statements in the Registration Statement and the Prospectus, they have
participated in the preparation of the Registration Statement and
Prospectus and in conferences with officers and other representatives
of the Company, Underwriters' Counsel, representatives of the
independent public accountants for the Company and your
representatives at which the contents of the Registration Statement
and Prospectus were discussed, and that, although they are not passing
upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement and the Prospectus (or any amendment thereof or
supplement thereto prior to the Closing Date or the Additional Closing
Date, as the case may be, as of the date of such amendment or
supplement), on the basis of the foregoing (relying as to materiality
to a large degree upon the opinions of officers and other
representatives of the Company), no facts have come to their attention
that lead them to believe that either (1) the Registration Statement,
as of the time it became effective (or any amendment thereto made
prior to the Closing Date or the Additional Closing Date, as the case
may be, as of the date of such amendment), contained or as of the
Closing Date or the Additional Closing Date, as the case may be,
contains an untrue statement of a material fact or omitted or omits to
state 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, or (2) the Prospectus, as of the date
thereof (or any amendment thereof or supplement thereto made prior to
the Closing Date or the Additional Closing Date, as the case may be,
as of the date of such amendment or supplement), contained or as the
Closing Date or the Additional Closing Date, as the case may be,
contains an untrue statement of a material fact or omitted or omits to
state 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 (except with respect to the financial
statements or schedules or other financial or statistical data
included in the Registration Statement or the Prospectus as to which
such counsel need express no opinion).
In rendering its opinion hereunder, such counsel may rely:
(A) as to matters of fact, on certificates of responsible officers of
the Company and certificates or other written statements of officers
of departments of various jurisdictions having custody of documents
regarding the corporate or limited partnership existence or good
standing of
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the Company and the Subsidiaries, provided that copies of any such statements
or certificates shall be delivered to Underwriters' Counsel; and (B) as to
matters involving the application of laws other than the laws of the United
States and the States of California, New York and Texas, to the extent such
counsel deems proper and to the extent specified in such opinion, if at all,
upon an opinion or opinions (in form and substance reasonably satisfactory to
Underwriters' Counsel) of other counsel reasonably acceptable to Underwriters'
Counsel and familiar with the applicable laws. The opinion of such counsel for
the Company shall state that the opinion of any such other counsel is in form
satisfactory to such counsel for the Company and, in their opinion, you and
they are justified in relying thereon. A copy of the opinion of any such other
counsel shall be attached to the opinion of such counsel for the Company. The
opinion shall also state that as used therein, the qualification "to the
knowledge of such counsel" does not indicate or imply that counsel rendering
the opinion have not conducted such review as they, in their professional
judgment, have deemed necessary or appropriate to render such opinion, but does
indicate that such counsel have relied upon factual certificates,
representations and information from the Company and its representatives having
such scope and form as counsel have deemed appropriate.
(c) At the Closing Date and the Additional Closing Date,
if any, you shall have received the favorable opinion of Fulbright & Xxxxxxxx
L.L.P., counsel for the Selling Shareholders other than the Xxxxxx Trust, dated
the Closing Date or the Additional Closing Date, as the case may be, addressed
to the Underwriters and in form and substance satisfactory to Underwriters'
Counsel, to the effect that:
(i) This Agreement and the Custody
Agreement have been duly executed and delivered by or on
behalf of each such Selling Shareholder and is a valid and
binding obligation of each such Selling Shareholder,
enforceable against such Selling Shareholder in accordance
with its terms, except to the extent that (1) rights to
indemnity hereunder may be limited by applicable federal or
state securities laws or the public policy underlying such
laws, (2) such enforcement may be subject to applicable
federal or state bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other laws or court
decisions relating to or affecting creditors' rights
generally, and (3) such enforcement may be limited by
equitable principles of general applicability, including
concepts of materiality, reasonableness, good faith and fair
dealing, equitable subordination and the possible
unavailability of specific performance or injunctive relief
(regardless of whether considered in a proceeding in equity or
at law or whether codified by statute).
(ii) To the knowledge of such counsel,
each such Selling Shareholder that is not a natural person has
the requisite power and authority to enter into and to perform
its obligations under this Agreement and the Custody Agreement
and to sell, transfer, assign and deliver the Shares to be
sold by such Selling Shareholder pursuant hereto.
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(iii) To the knowledge of such counsel, no
consents, approvals, authorizations, orders, registrations,
filings, qualifications, licenses or permits are required for
the execution, delivery and performance of this Agreement and
the Custody Agreement, and the consummation of the
transactions contemplated hereby by any such Selling
Shareholder, except for (1) such as may be required under
state securities or Blue Sky laws in connection with the
purchase and distribution of the Shares by the Underwriters
(as to which such counsel need express no opinion), and (2)
such as have been made or obtained under the Act.
(iv) To the knowledge of such counsel,
upon the delivery of and payment for the Shares to be sold by
such Selling Shareholders pursuant to this Agreement as herein
contemplated, and assuming each Underwriter takes delivery
without knowledge of any adverse claims, such Underwriter will
be a bona fide purchaser with respect to such Shares within
the meaning of Article 8 of the UCC and will acquire all
rights of such Selling Shareholder in such Shares, free and
clear of all adverse claims.
(v) The statements in the Prospectus
under the caption "Selling Shareholders," insofar as such
statements refer to such Selling Shareholders and constitute a
summary of the matters referred to therein, fairly present the
information required to be presented by the Act or the
Regulations.
In rendering its opinion hereunder, such counsel may rely: (A)
as to matters of fact, on certificates of such Selling Shareholders,
provided that copies of any such certificates shall be delivered to
Underwriters' Counsel; and (B) as to matters involving the application
of laws other than the laws of the United States and the States of
California, New York and Texas, to the extent such counsel deems
proper and to the extent specified in such opinion, if at all, upon an
opinion or opinions (in form and substance reasonably satisfactory to
Underwriters' Counsel) of other counsel reasonably acceptable to
Underwriters' Counsel and familiar with the applicable laws. The
opinion of such counsel for such Selling Shareholders shall state that
the opinion of any such other counsel is in form satisfactory to such
counsel for such Selling Shareholders and, in their opinion, you and
they are justified in relying thereon. A copy of the opinion of any
such other counsel shall be attached to the opinion of such counsel
for such Selling Shareholders. The opinion shall also state that as
used therein, the qualification "to the knowledge of such counsel"
does not indicate or imply that counsel rendering the opinion have not
conducted such review as they, in their professional judgment, have
deemed necessary or appropriate to render such opinion, but does
indicate that such counsel have relied upon factual certificates,
representations and information from such Selling Shareholders and
their representatives having such scope and form as counsel have
deemed appropriate.
(d) At the Closing Date and the Additional
Closing Date, if any, you shall have received the favorable opinion of
Cooley, Godward, Xxxxxx, Xxxxxxxxxx & Xxxxx, counsel for the Xxxxxx
Trust, dated the Closing Date or the Additional Closing
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Date, as the case may be, addressed to the Underwriters and in form
and substance satisfactory to Underwriters' Counsel, to the effect
that:
(i) This Agreement and the Custody
Agreement have been duly executed and delivered by or on
behalf of such Selling Shareholder and is a valid and binding
obligation of such Selling Shareholder, enforceable against
such Selling Shareholder in accordance with its terms, except
to the extent that (1) rights to indemnity hereunder may be
limited by applicable federal or state securities laws or the
public policy underlying such laws, (2) such enforcement may
be subject to applicable federal or state bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance
or other laws or court decisions relating to or affecting
creditors' rights generally, and (3) such enforcement may be
limited by equitable principles of general applicability,
including concepts of materiality, reasonableness, good faith
and fair dealing, equitable subordination and the possible
unavailability of specific performance or injunctive relief
(regardless of whether considered in a proceeding in equity or
at law or whether codified by statute).
(ii) To the knowledge of such counsel,
such Selling Shareholder has the requisite power and authority
to enter into and to perform its obligations under this
Agreement and the Custody Agreement and to sell, transfer,
assign and deliver the Shares to be sold by such Selling
Shareholder pursuant hereto.
(iii) To the knowledge of such counsel, no
consents, approvals, authorizations, orders, registrations,
filings, qualifications, licenses or permits are required for
the execution, delivery and performance of this Agreement and
the Custody Agreement, and the consummation of the
transactions contemplated hereby by such Selling Shareholder,
except for (1) such as may be required under state securities
or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters (as to which
such counsel need express no opinion), and (2) such as have
been made or obtained under the Act.
(iv) To the knowledge of such counsel,
upon the delivery of and payment for the Shares to be sold by
such Selling Shareholder pursuant to this Agreement as herein
contemplated, and assuming each Underwriter takes delivery
without knowledge of any adverse claims, such Underwriter will
be a bona fide purchaser with respect to such Shares within
the meaning of Article 8 of the UCC and will acquire all
rights of such Selling Shareholder in such Shares, free and
clear of all adverse claims.
(v) The statements in the Prospectus
under the caption "Selling Shareholders," insofar as such
statements refer to such Selling Shareholder and constitute a
summary of the matters referred to therein, fairly present the
information required to be presented by the Act or the
Regulations.
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In rendering its opinion hereunder, such counsel may rely: (A)
as to matters of fact, on certificates of such Selling Shareholder,
provided that copies of any such certificates shall be delivered to
Underwriters' Counsel; and (B) as to matters involving the application
of laws other than the laws of the United States and the State of
California, to the extent such counsel deems proper and to the extent
specified in such opinion, if at all, upon an opinion or opinions (in
form and substance reasonably satisfactory to Underwriters' Counsel)
of other counsel reasonably acceptable to Underwriters' Counsel and
familiar with the applicable laws. The opinion of such counsel for
such Selling Shareholder shall state that the opinion of any such
other counsel is in form satisfactory to such counsel for such Selling
Shareholder and, in their opinion, you and they are justified in
relying thereon. A copy of the opinion of any such other counsel shall
be attached to the opinion of such counsel for such Selling
Shareholder. The opinion shall also state that as used therein, the
qualification "to the knowledge of such counsel" does not indicate or
imply that counsel rendering the opinion have not conducted such
review as they, in their professional judgment, have deemed necessary
or appropriate to render such opinion, but does indicate that such
counsel have relied upon factual certificates, representations and
information from such Selling Shareholder and its representatives
having such scope and form as counsel have deemed appropriate.
(e) At the Closing Date and the Additional Closing Date,
if any, you shall have received a certificate of the President and the
Chief Operating and Financial Officer of the Company, dated the
Closing Date or the Additional Closing Date, as the case may be, to
the effect that the condition set forth in subsection (a) of this
Section 6 has been satisfied, that as of the date hereof and as of the
Closing Date or the Additional Closing Date, as the case may be, the
representations and warranties of the Company set forth in Section 1
hereof are accurate, and that as of the Closing Date or the Additional
Closing Date, as the case may be, the obligations of the Company to be
performed hereunder on or prior thereto have been duly performed.
(f) At the Closing Date and the Additional Closing Date,
if any, you shall have received a certificate executed by the
Attorney-in-Fact on behalf of the Selling Shareholders, dated the
Closing Date or the Additional Closing Date, as the case may be, to
the effect that the representations and warranties of such Selling
Shareholders set forth in Section 1 hereof are accurate, and that as
of the Closing Date, the obligations of such Selling Shareholders to
be performed hereunder on or prior thereto have been duly performed.
(g) At the time this Agreement is executed and at the
Closing Date and the Additional Closing Date, if any, you shall have
received a letter, from Deloitte & Touche LLP, independent public
accountants for the Company, dated as of the date of this Agreement
and as of the Closing Date or the Additional Closing Date, as the case
may be, addressed to the Underwriters and in form and substance
satisfactory to you, to the effect that: (i) they are independent
certified public accountants with respect to the Company within the
meaning of the Act and the applicable published rules and regulations
of the Commission thereunder and stating that the answer to Item 10 of
the Registration Statement is correct insofar as it relates to them;
(ii) in their opinion, the financial statements of the Company
incorporated by reference in the Registration Statement and the
Prospectus and covered by their opinion therein comply as to form in
all material respects with the applicable accounting requirements of
the Act and the Exchange Act and the applicable published rules and
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23
regulations of the Commission thereunder; (iii) on the basis of
procedures (but not an examination made in accordance with generally
accepted auditing standards) consisting of a reading of the latest
available unaudited interim consolidated financial statements of the
Company and the Subsidiaries, a reading of the minutes of meetings and
consents of the shareholders and boards of directors or the partners
(as the case may be) of the Company and the Subsidiaries and the
committees of such boards subsequent to February 1, 1997, inquiries of
officers and other employees or partners (as the case may be) of the
Company and the Subsidiaries who have responsibility for financial and
accounting matters of the Company and the Subsidiaries with respect to
transactions and events subsequent to February 1, 1997, and other
specified procedures and inquiries to a date not more than five days
prior to the date of such letter, nothing has come to their attention
that would cause them to believe that: (A) with respect to the period
subsequent to February 1, 1997 there were, as of the date of the most
recent available monthly consolidated financial statements of the
Company and the Subsidiaries, if any, and as of a specified date not
more than five days prior to the date of such letter, any changes in
the capital stock or long-term indebtedness of the Company or any
decrease in the net current assets or shareholders' equity of the
Company, in each case as compared with the amounts shown in the most
recent balance sheet incorporated by reference in the Registration
Statement and the Prospectus, except for changes or decreases which
the Registration Statement and the Prospectus disclose have occurred
or may occur or which are set forth in such letter, or (B) that during
the period after February 1, 1997 to the date of the most recent
available monthly consolidated financial statements of the Company and
the Subsidiaries, if any, and to a specified date not more than five
days prior to the date of such letter, there was any decrease, as
compared with the corresponding period in the prior fiscal year of the
Company, in total revenues, or total or per share net income, except
for decreases which the Registration Statement and the Prospectus
disclose have occurred or may occur or which are set forth in such
letter; and (iv) stating that they have compared specific dollar
amounts, numbers of shares, percentages of revenues and earnings, and
other financial information pertaining to the Company and the
Subsidiaries set forth or incorporated by reference in the
Registration Statement and the Prospectus, which have been specified
by you prior to the date of this Agreement, to the extent that such
amounts, numbers, percentages, and information may be derived from the
general accounting and financial records of the Company and the
Subsidiaries or from schedules furnished by the Company, and excluding
any questions requiring an interpretation by legal counsel, with the
results obtained from the application of specified readings,
inquiries, and other appropriate procedures specified by you (which
procedures do not constitute an examination in accordance with
generally accepted auditing standards) set forth in such letter, and
found them to be in agreement. In addition, you shall have received
from Deloitte & Touche LLP a letter addressed to the Company and made
available to you for use of the Underwriters stating that their review
of the Company's system of internal
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accounting controls, to the extent they deemed necessary in
establishing the scope of their examination of the Company's
consolidated financial statements for the fiscal year ended February
1, 1997, did not disclose any weaknesses in internal controls that
they considered to be material weaknesses.
(h) All proceedings taken in connection with the sale of
the Firm Shares and the Additional Shares as herein contemplated shall
be satisfactory in form and substance to you and to Underwriters'
Counsel, and the Underwriters shall have received from Underwriters'
Counsel a favorable opinion, dated as of the Closing Date and the
Additional Closing Date, as the case may be, with respect to the
issuance and sale of the Shares, the Registration Statement and the
Prospectus and such other related matters, as you may reasonably
require, and the Company and the Selling Shareholders shall have
furnished to Underwriters' Counsel such documents as Underwriters'
Counsel request for the purpose of enabling them to pass upon such
matters.
(i) Prior to the Closing Date and the Additional Closing
Date, the Company and the Selling Shareholders shall have furnished to
you such further information, certificates and documents as you may
reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as required by this Agreement, or if any of the
certificates, opinions, written statements or letters furnished to you or to
Underwriters' Counsel pursuant to this Section 6 shall not be in all material
respects reasonably satisfactory in form and substance to you and to
Underwriters' Counsel, all obligations of the Underwriters hereunder may be
cancelled by you at, or at any time prior to, the Closing Date and the
obligations of the Underwriters to purchase the Additional Shares may be
cancelled by you at, or at any time prior to, the Additional Closing Date.
Notice of such cancellation shall be given to the Company and the Selling
Shareholders in writing, or by telephone, telex or telegraph, confirmed in
writing.
7. Indemnification.
(a) The Company and the Xxxxxx Trust, jointly and
severally, agree to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning
of Section 15 of the Act or Section 20(a) of the Exchange Act, against
any and all losses, liabilities, claims, damages and expenses
whatsoever (including attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against
any litigation, commenced or threatened, or any claim whatsoever, and
any and all amounts paid in settlement of any claim or litigation),
joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement, as originally filed or any amendment thereof,
or any Preliminary Prospectus or the Prospectus, or in any supplement
thereto or amendment thereof, or arise out of or are based upon the
omission or alleged omission to state therein a material fact
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required to be stated therein or necessary to make the statements
therein not misleading; provided, however, that the Company and the
Xxxxxx Trust will not be liable in any such case to the extent, but
only to the extent, that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein
in reliance upon and in conformity with written information furnished
to the Company by or on behalf of any Underwriter through you
expressly for use therein, and the indemnification obligation of the
Xxxxxx Trust will be limited in amount to the proceeds actually
received by it from the sale of its Shares pursuant to this Agreement;
and provided further, that the indemnification rights in this Section
7(a) with respect to any Preliminary Prospectus shall not inure to the
benefit of any Underwriter (or to the benefit of any person
controlling such Underwriter) on account of any such loss, liability,
claim, damage or expense arising from the sale of Shares by such
Underwriter to any person if a copy of the Prospectus, as amended or
supplemented, shall not have been delivered or sent to such person
within the time required by the Act, and the untrue statement or
alleged untrue statement or omission or alleged omission of a material
fact contained in such Preliminary Prospectus was corrected in the
Prospectus, as amended or supplemented, provided that the Company
delivered the Prospectus, as amended or supplemented, to the several
Underwriters on a timely basis to permit such delivery or sending.
This indemnity agreement will be in addition to any liability which
the Company or the Xxxxxx Trust may otherwise have, including under
this Agreement.
(b) Each Underwriter severally, and not jointly, agrees
to indemnify and hold harmless the Company, each of the directors of
the Company, each of the officers of the Company who shall have signed
the Registration Statement, each Selling Shareholder, and each other
person, if any, who controls the Company within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act, against any
losses, liabilities, claims, damages and expenses whatsoever
(including attorneys' fees and any and all expenses whatsoever
incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any
and all amounts paid in settlement of any claim or litigation), joint
or several, to which they or any of them may become subject under the
Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect
thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement, as originally filed or any amendment thereof,
or any Preliminary Prospectus or the Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
any such loss, liability, claim, damage or expense arises out of or is
based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Underwriters' representative
expressly for use therein. This indemnity will be in addition to any
liability which any Underwriter may otherwise have, including under
this Agreement. The Company acknowledges that the statements set
forth in the last paragraph of the cover page and in the first three
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paragraphs and the last sentence of the fifth paragraph under the
caption "Underwriting" in the Prospectus constitute the only
information furnished in writing by or on behalf of any Underwriter
expressly for use in the Registration Statement, as originally filed
or in any amendment thereof, any Preliminary Prospectus or the
Prospectus or in any amendment thereof or supplement thereto, as the
case may be.
(c) Each Selling Shareholder, severally and not jointly
(in the proportion that the number of Shares sold by such Selling
Shareholder bears to the total number of Shares sold pursuant hereto),
agrees to indemnify and hold harmless each Underwriter, the Company,
each of the directors of the Company, each of the officers of the
Company who shall have signed the Registration Statement, and each
other person, if any, who controls the Company or any Underwriter
within the meaning of Section 15 of the Act or Section 20(a) of the
Exchange Act, against any losses, liabilities, claims, damages and
expenses whatsoever (including attorneys' fees and any and all
expenses whatsoever incurred in investigating, preparing or defending
against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become
subject under the Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in
respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement, as originally filed or any amendment thereof,
or any Preliminary Prospectus or the Prospectus, or in any amendment
thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that
any such loss, liability, claim, damage or expense arises out of or is
based upon any such untrue statement or alleged untrue statement or
omission or alleged omission made therein in reliance upon and in
conformity with written information relating to such Selling
Shareholder furnished to the Company by such Selling Shareholder,
directly or through such Selling Shareholder's representative,
expressly for use therein. This indemnity will be in addition to any
liability which any such Selling Shareholder may otherwise have,
including under this Agreement.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b), or (c) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection,
notify each party against whom indemnification is to be sought in
writing of the commencement thereof (but the failure so to notify an
indemnifying party shall not relieve it from any liability which it
may have under this Section 7 except to the extent that it has been
prejudiced in any material respect by such failure or from any
liability which it may have otherwise). In case any such action is
brought against any indemnified party, and it notifies an indemnifying
party of the commencement thereof, the indemnifying party will be
entitled to participate therein, and to the extent it may elect by
written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume
the defense thereof with counsel
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satisfactory to such indemnified party. Notwithstanding the foregoing,
the indemnified party or parties shall have the right to employ its or
their own counsel in any such case, but the fees and expenses of such
counsel shall be at the expense of such indemnified party or parties
unless (i) the employment of such counsel shall have been authorized
in writing by one of the indemnifying parties in connection with the
defense of such action, in which case such indemnifying party only
shall be responsible for such fees and expenses, (ii) the indemnifying
parties shall not have employed counsel to have charge of the defense
of such action within a reasonable time after notice of commencement
of the action, or (iii) such indemnified party or parties shall have
reasonably concluded that there may be defenses available to it or
them which are different from or additional to those available to one
or all of the indemnifying parties (in which case the indemnifying
parties shall not have the right to direct the defense of such action
on behalf of the indemnified party or parties with respect to such
defenses), in any of which events such fees and expenses shall be
borne by the indemnifying parties; provided, however, that the
indemnifying parties shall, in connection with any one such action or
separate actions substantially similar or related actions arising out
of the same general allegations or circumstances, be liable for the
fees and expenses of only one separate firm of attorneys (in addition
to any local counsel) at any time for all such indemnified parties,
which firm, in the case of the Underwriters and controlling persons,
shall be designated by all of the Underwriters and, in the case of the
Company, the Selling Shareholders, and the officers, directors and
controlling persons of the Company, shall be designated by the
Company. Anything in this subsection to the contrary notwithstanding,
an indemnifying party shall not be liable for any settlement of any
claim or action effected without its written consent; provided,
however, that such consent was not unreasonably withheld.
8. Contribution. In order to provide for contribution in
circumstances in which the indemnification provided for in Section 7 hereof is
for any reason held to be unavailable from any indemnifying party or is
insufficient to hold harmless a party indemnified thereunder, the Company, the
Selling Shareholders, and the Underwriters shall contribute to the aggregate
losses, claims, damages, liabilities and expenses of the nature contemplated by
such indemnification provisions (including any investigation, legal and other
expenses incurred in connection with, and any amount paid in settlement of, any
action, suit or proceeding or any claims asserted, but after deducting in the
case of losses, claims, damages, liabilities and expenses suffered by the
Company and any Selling shareholder any contribution received by the Company or
such Selling Shareholder from persons, other than the Underwriters, who may
also be liable for contribution, including persons who control the Company
within the meaning of Section 15 of the Act or Section 20(a) of the Exchange
Act, officers of the Company who signed the Registration Statement and
directors of the Company) to which the Company, one or more of the Selling
Shareholders, and one or more of the Underwriters may be subject, in such
proportions as is appropriate to reflect the relative benefits received by the
Company, the Selling Shareholders, and the Underwriters from the offering of
the Shares or, if such allocation is not permitted by applicable law or
indemnification is not available as a result of the indemnifying party not
having received notice as provided in Section 7 hereof, in such proportion as
is appropriate to reflect not only the relative benefits referred to above but
also the relative fault of the Company, the Selling Shareholders, and the
Underwriters in connection with the statements or omissions which resulted in
such losses, claims, damages, liabilities or expenses,
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as well as any other relevant equitable considerations. The relative benefits
received by the Company, the Selling Shareholders, and the Underwriters shall
be deemed to be in the same proportion as (x) the total proceeds from the
offering (net of underwriting discounts and commissions, but before deducting
expenses) received by the Company, (y) the total proceeds from the offering
(net of underwriting discounts and commissions, but before deducting expenses)
received by the Selling Shareholders and (z) the underwriting discounts and
commissions received by the Underwriters, respectively, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault of
the Company, of the Selling Shareholders, and of the Underwriters shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company, the
Selling Shareholders, or the Underwriters and the parties' relative intent,
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 just and equitable if contribution
pursuant to this Section 8 were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above. Notwithstanding the provisions of this
Section 8, (i) in no case shall any Underwriter (except as may be provided in
the Agreement Among Underwriters) be liable or responsible for any amount in
excess of the underwriting discount applicable to the Shares purchased by such
Underwriter hereunder, (ii) in no case shall any Selling Shareholder be liable
or responsible for any amount that exceeds the proceeds actually received by
that Selling Shareholder from the sale of his, her, or its Shares pursuant to
this Agreement, and (iii) no person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act shall have the same rights to contribution as such
Underwriter, each person, if any, who controls a Selling Shareholder within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act shall
have the same rights to contribution as such Selling Shareholder, and each
person, if any, who controls the Company within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act, each officer of the Company who
shall have signed the Registration Statement and each director of the Company
shall have the same rights to contribution as the Company, subject in each case
to clauses (i), (ii), and (iii) of the immediately preceding sentence of this
Section 8. Any party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against such party in
respect of which a claim for contribution may be made against another party or
parties under this Section 8, notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought
from any obligation it or they may have under this Section 8 or otherwise. No
party shall be liable for contribution with respect to any action or claim
settled without its consent; provided, however, that such consent was not
unreasonably withheld.
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9. Default by an Underwriter.
(a) If any Underwriter or Underwriters shall default in
its or their obligation to purchase Firm Shares or Additional Shares
hereunder, and if the Firm Shares or the Additional Shares with
respect to which such default relates do not (after giving effect to
arrangements, if any, made by you pursuant to subsection (b) of this
Section 9) exceed in the aggregate 10% of the number of Firm Shares or
Additional Shares, as the case may be, which all Underwriters have
agreed to purchase hereunder, then such Firm Shares or Additional
Shares to which the default relates shall be purchased by the
non-defaulting Underwriters in proportion to the respective
proportions which the numbers of Firm Shares set forth opposite their
respective names in Column (1) of Schedule I hereto bear to the
aggregate number of Firm Shares set forth opposite the names of the
non- defaulting Underwriters.
(b) In the event that such default relates to more than
10% of the number of the Firm Shares or the Additional Shares, as the
case may be, you may in your discretion arrange for yourself or for
another party or parties (including any non-defaulting Underwriter or
Underwriters who so agree) to purchase such Firm Shares or Additional
Shares, as the case may be, to which such default relates on the terms
contained herein. In the event that within five calendar days after
such a default you do not arrange for the purchase of the Firm Shares
or the Additional Shares, as the case may be, to which such default
relates as provided in this Section 9, this Agreement or, in the case
of a default with respect to the Additional Shares, the obligations of
the Underwriters to purchase and of the Selling Shareholders to sell
the Additional Shares shall thereupon terminate, without liability on
the part of the Company or the Selling Shareholders with respect
thereto (except in each case as provided in Sections 5, 7(a), 7(c),
and 8 hereof) or the several Underwriters (except as provided in
Section 7(b) and 8 hereof), but nothing in this Agreement shall
relieve a defaulting Underwriter or Underwriters of its or their
liability, if any, to the other several Underwriters, the Company, and
the Selling Shareholders for damages occasioned by its or their
default hereunder.
(c) In the event that the Firm Shares or Additional
Shares to which the default relates are to be purchased by the
non-defaulting Underwriters, or are to be purchased by another party
or parties as aforesaid, you or the Company shall have the right to
postpone the Closing Date, or you or the Selling Shareholders jointly
shall have the right to postpone the Additional Closing Date, as the
case may be, for a period, not exceeding five business days, in order
to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus or in any other documents and
arrangements, and the Company agrees to file promptly any amendment or
supplement to the Registration Statement or the Prospectus which, in
the opinion of Underwriters' Counsel, may thereby be made necessary or
advisable. The term "Underwriter" as used in this Agreement shall
include any party substituted under this Section 9 with like effect as
if it had originally been a party to this Agreement with respect to
such Firm Shares and Additional Shares.
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10. Survival of Representations and Agreements. All
representations and warranties, covenants and agreements of the Underwriters,
the Company, and the Selling Shareholders contained in this Agreement,
including the agreements contained in Section 5, the indemnity agreements
contained in Section 7 and the contribution agreements contained in Section 8,
shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Underwriter or any controlling person
thereof, by or on behalf of the Company, any of its officers and directors or
any controlling person thereof, or by or on behalf of any Selling Shareholder
or any controlling person thereof, and shall survive delivery of and payment
for the Shares to and by the several Underwriters. The representations
contained in Section 1 and the agreements contained in Sections 5, 7, 8 and
11(d) hereof shall survive the termination of this Agreement including pursuant
to Section 9 or Section 11 hereof.
11. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective at such time
after notification of the effectiveness of the Registration Statement
as you, the Company, and the Selling Shareholders shall agree upon the
initial public offering price and the purchase price per Share. If
either the initial public offering price or the purchase price per
Share has not been agreed upon prior to 5:00 p.m., New York time, on
the seventh full business day after the Registration Statement shall
have become effective, this Agreement shall thereupon terminate
without liability to the Company, the Selling Shareholders, or the
Underwriters except as herein expressly provided. Until this
Agreement becomes effective as aforesaid, it may be terminated (i) by
the Company by notifying you and the Selling Shareholders, (ii) by the
Selling Shareholders by their joint action directly or by the
Attorney-in-Fact on behalf of all of the Selling Shareholders by
notifying the Company and you, or (iii) by you or by your
representative on behalf of all of you by notifying the Company and
the Selling Shareholders. Notwithstanding the foregoing, the
provisions of this Section 11 and of Sections 1, 5, 7 and 8 hereof
shall at all times be in full force and effect.
(b) You shall have the right to terminate this Agreement
at any time prior to the Closing Date or the obligations of the
Underwriters to purchase the Additional Shares at any time prior to
the Additional Closing Date, as the case may be, if any domestic or
international event or act or occurrence has materially disrupted, or
in your opinion will in the immediate future materially disrupt,
securities markets; or if trading on the New York or American Stock
Exchanges shall have been suspended, or minimum or maximum prices for
trading shall have been fixed, or maximum ranges for prices for
securities shall have been required, on the New York or American Stock
Exchanges by the New York or American Stock Exchanges or by order of
the Commission or any other governmental authority having
jurisdiction; or if the United States shall have become involved in a
war or major hostilities; or if a banking moratorium has been declared
by a state or federal authority, or if a moratorium in foreign
exchange trading by major international banks or persons has been
declared; or if any new restriction materially adversely affecting the
distribution of the Firm Shares or the Additional Shares, as the case
may be, shall have become effective; or if there shall have been such
change in the market for the
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Company's securities or securities in general or in political,
financial or economic conditions as in your judgment makes it
inadvisable to proceed with the offering, sale and delivery of the
Firm Shares, or the Additional Shares, as the case may be, on the
terms contemplated by the Prospectus.
(c) Any notice of termination pursuant to this Section 11
shall be by telephone, telex, or telegraph, confirmed in writing by
letter.
(d) If this Agreement shall be terminated pursuant to any
of the provisions hereof (otherwise than pursuant to (i) notification
by you as provided in Section 11(a) hereof or (ii) Sections 9(b) or
11(b) hereof), or if the sale of the Shares provided for herein is not
consummated because any condition to the obligations of the several
Underwriters set forth herein is not satisfied or because of any
refusal, inability or failure on the part of the Company or any
Selling Shareholder to perform any agreement herein or comply with any
provision hereof, the Company and the Selling Shareholders will,
jointly and severally, subject to demand by you, reimburse the
Underwriters for all out-of-pocket expenses (including the fees and
expenses of their counsel) incurred by the several Underwriters in
connection herewith.
12. Notice. All communications hereunder, except as may be
otherwise specifically provided herein, shall be in writing and, if sent to any
Underwriter, shall be mailed, delivered, or telexed or telegraphed and
confirmed in writing, to such Underwriter c/o Bear, Xxxxxxx & Co. Inc., 000
Xxxx Xxxxxx, Xxx Xxxx, X.X. 00000, Attention: Corporate Finance; if sent to
the Company or any Selling Shareholder, shall be mailed, delivered, or
telegraphed and confirmed in writing, to the Company, 00000 Xxxxxxxxxxxx
Xxxxxx, Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxxx X. Xxxxx.
13. Parties. The Company and the Selling Shareholders shall be
entitled to act and rely on any request, notice, consent, waiver or agreement
purportedly given on behalf of the Underwriters when the same shall have been
given by Bear, Xxxxxxx & Co. Inc. This Agreement shall inure solely to the
benefit of, and shall be binding upon, the Underwriters, the Company and the
Selling Shareholders and the controlling persons, directors, officers,
employees and agents referred to in Sections 7 and 8, and their respective
successors and assigns, and no other person shall have or be construed to have
any legal or equitable right, remedy or claim under or in respect of or by
virtue of this Agreement or any provision herein contained. The term
"successors and assigns" shall not include a purchaser, in its capacity as
such, of Shares from any of the Underwriters.
14. Construction. This Agreement shall be governed by, enforced
under, and construed in accordance with the internal laws of the State of New
York, without giving effect to the rules governing conflicts of laws. In this
Agreement, (i) "including" means "including, without limitation," (ii) "person"
means any individual or natural person and any entity or association of any
kind, and (iii) "business day" means any day on which the Nasdaq National
Market is open for trading.
[THE IMMEDIATELY FOLLOWING PAGE IS THE SIGNATURE PAGE.]
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If the foregoing correctly sets forth the understanding among you, the
Company, and the Selling Shareholders, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a binding
agreement among us.
Very truly yours,
THE MEN'S WEARHOUSE, INC.
By:
-----------------------------
Name:
-----------------------------
Title:
-----------------------------
SELLING SHAREHOLDERS
By:
--------------------------------
Xxxxx X. Xxxxx,
Attorney-in-Fact for the Selling
Shareholders named in Schedule II
hereto
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Accepted as of the date first above written.
BEAR, XXXXXXX & CO. INC.
XXXXXX XXXXXXX & CO. INCORPORATED
PAINEWEBBER INCORPORATED
XXXXXXXXX, XXXXXXXX & COMPANY LLC
By: BEAR, XXXXXXX & CO. INC.
By: ________________________
Its: ________________________
On behalf of itself and the other several
Underwriters named in Schedule I hereto.
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34
SCHEDULE I
(1) (2)
Number of Firm Shares Number of Firm Shares
to Be Purchased to Be Purchased from the
Name of Underwriter from the Company Selling Shareholders
------------------- ------------------- ------------------------
Bear, Xxxxxxx & Co. Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
PaineWebber Incorporated
Xxxxxxxxx, Xxxxxxxx
& Company LLC
--------- ---------
Totals 1,000,000 1,600,000
========= =========
35
SCHEDULE II
Number of
Firm Shares
Name of Selling Shareholder to Be Sold
--------------------------- ----------
The Xxxxxx Xxxxxx 1988 Living Trust 325,000
Xxxxxx X. Xxxxxx 825,000
Xxxxxxx X. Xxxxxxx 300,000
The Xxxxx Xxxxxx Xxxxxx
1989 Living Trust 150,000
-------
Totals 1,600,000
=========
