XXXXXXX ENTERPRISES, INC.
EQUITY SECURITIES
UNDERWRITING AGREEMENT - BASIC PROVISIONS
January 6, 1999
To: The Underwriters named in
the within-mentioned Terms
Agreement
Dear Sirs/Madams:
From time to time, Xxxxxxx Enterprises, Inc., a Louisiana corporation (the
"Company"), proposes to issue and sell designated equity securities (the
"Shares") in one or more offerings on terms determined at the time of sale.
Whenever the Company determines to make an offering of Shares, it will enter
into an agreement substantially in the form of EXHIBIT A (the "Terms
Agreement") providing for the sale of such Shares to, and the purchase and
offering thereof by, the Underwriter or Underwriters named therein whether
acting alone in the sale of Shares or as a member or members of an underwriting
syndicate.
The Terms Agreement relating to each offering of Shares shall specify the
terms of the offering not otherwise specified herein, including the aggregate
amount of Shares to be sold (the Shares sold initially may also be referred to
as the "Firm Shares" and the Shares sold to cover over-allotments may also be
referred to as the "Additional Shares"), the class and or series of such
Shares, the name or names of the Underwriters participating in such offering
and the aggregate amount of such Shares that each several Underwriter agrees to
purchase, the name or names of the Underwriters acting as manager or co-
managers in connection with such offerings, if any (the "Representatives,"
which term shall include each Underwriter in the event that there shall be no
manager or co-managers), the price at which the Shares are to be purchased by
the Underwriters from the Company and/or one or more selling shareholders as
set forth in the Terms Agreement (the "Selling Shareholders"), if any, the
initial public offering price and the time and place of delivery and payment.
Each offering of Shares will be governed by this Agreement, as supplemented by
the applicable Terms Agreement, and this Agreement and the Terms Agreement
shall inure to the benefit of and be binding upon each Underwriter
participating in the offering of such Shares. Terms defined in the Terms
Agreement are used in this Agreement as defined in the Terms Agreement.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
SHAREHOLDERS.
A. The Company represents and warrants to, and agrees with, the
several Underwriters that:
(a) The Company meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Securities Act"). The
Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-68563), which,
pursuant to Rule 429 of the General Rules and Regulations of the Commission
under the Securities Act (the "Regulations"), includes a basic prospectus that
also covers the securities registered on a registration statement previously
filed by the Company on Form S-3 (No. 333-59339). Such registration statements
have been declared effective and relate to equity and debt securities of the
Company, including the Shares and the offering thereof from time to time in
accordance with Rule 415 of the Regulations. The Company has filed such
amendments thereto as may have been required to the date hereof. The Company
shall promptly hereafter file with the Commission a prospectus supplement (the
"Prospectus Supplement") specifically relating to the Shares pursuant to Rule
424 or Rule 434 of the Regulations. The Company will not, without the prior
consent of the Representatives, file any other amendment thereto or make any
change in the form of final prospectus included therein prior to the time it is
first filed pursuant to Rule 424(b) of the Regulations. Registration Statement
No. 333-68563, including the prospectus, financial statements, schedules,
exhibits and all other documents filed as a part thereof, as amended, at the
time it shall have become effective, is herein called the "Registration
Statement." The term "Basic Prospectus" means the prospectus included in the
Registration Statement. The term "Prospectus" means the Basic Prospectus
together with the Prospectus Supplement. The term "preliminary prospectus"
means a preliminary prospectus supplement specifically relating to the Shares,
together with the Basic Prospectus. As used herein, the terms "Basic
Prospectus," "Prospectus" and "preliminary prospectus" shall include in each
case the documents, if any, incorporated by reference therein. The terms
"supplement," "amendment" and "amend" as used herein shall include all
documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the date of the Basic Prospectus by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as amended (the
"Exchange Act").
(b) At the time the Registration Statement became 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, when any document filed under the Exchange Act is filed,
and at all times subsequent thereto and including the Closing Date and the
Additional Closing Date, if any (as hereinafter respectively defined), and
during such longer period as the Prospectus may be required to be delivered in
connection with sales by the Underwriters or a dealer, the Registration
Statement and the Prospectus and any amendments thereof and supplements thereto
complied or will comply in all material respects with the applicable provisions
of the Securities Act and the Exchange Act and the respective rules and
regulations thereunder and will contain all statements that are required to be
stated therein in accordance with the Securities Act and the Regulations, and
do not or 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 not misleading, and no event will have
occurred that should have been set forth in an amendment or supplement to the
Registration Statement or Prospectus that has not then been set forth in such
an amendment or supplement. When any related 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 preliminary prospectus and any
amendments thereof and supplements thereto complied in all material respects
with the applicable provisions of the Securities Act and the Exchange Act and
the respective 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 were made, not
misleading. No representation and warranty is made in this subsection (b),
however, with respect to any information contained in or omitted from the
Registration Statement or the Prospectus or any related 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 any Underwriter through the Representatives as herein stated, or by or on
behalf of any Selling Shareholders insofar as it relates to such Selling
Shareholders, in each case 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.
(c) 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 Basic 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 knowledge of the
Company, has any of such authorities instituted or threatened to institute any
proceedings with respect to a stop order.
(d) To the best knowledge of the Company,
PriceWaterhouseCoopers L.L.P., who have certified the financial statements and
supporting schedules, if any, included in the Registration Statement or
incorporated by reference, are independent public accountants with regard to
the Company as required by the Act and the Regulations.
(e) 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 any material adverse change or any development involving a material
adverse change, in the business, properties, financial condition, results of
operations or prospects of the Company and its subsidiaries taken as a whole,
whether or not arising from transactions in the ordinary course of business,
and since the date of the latest balance sheet presented or incorporated by
reference in the Registration Statement and the Prospectus, neither the Company
nor any of its subsidiaries has incurred or undertaken any liabilities or
obligations, direct or contingent, which are material to the Company and its
subsidiaries taken as a whole, except for liabilities or obligations that were
incurred or undertaken in the ordinary course of business or are reflected in
the Registration Statement and the Prospectus.
(f) The Company has all necessary corporate power and
authority to execute and deliver this Agreement and any Terms Agreement and
perform its obligations hereunder and thereunder; each of this Agreement, any
applicable Terms Agreement and the transactions contemplated herein or therein
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 rights to
indemnity hereunder may be limited by federal or state securities laws or the
public policy underlying such laws and except to the extent that enforcement
may be limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally and subject to general principles of
equity.
(g) The execution, delivery, and performance of this
Agreement, any applicable Terms Agreement and the consummation of the
transactions contemplated hereby and thereby 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 of its subsidiaries, pursuant to the terms of any agreement,
instrument, franchise, license or permit to which the Company or any of its
subsidiaries is a party or by which any of such corporations or their
respective properties or assets may be bound, or (ii) violate or conflict with
any provision of the Articles of Incorporation or Bylaws of the Company or
similar organizational documents of any of its subsidiaries 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 of its subsidiaries 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 of its
subsidiaries or any of their respective properties or assets is required for
the execution, delivery and performance of this Agreement, any applicable Terms
Agreement and the consummation of the transactions contemplated hereby and
thereby, including the issuance, sale and delivery of the Shares to be issued,
sold and delivered by the Company hereunder, except the registration under the
Act of the Shares 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 purchase and
distribution of the Shares by the Underwriters.
(h) All of the outstanding shares of capital stock of the
Company 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. The Company has authorized and outstanding capitalization as set forth
in the Registration Statement and the Prospectus, as of the dates set forth
therein. The Shares to be sold by the Company, when delivered and sold in
accordance with the applicable Terms Agreement, will be duly and validly issued
and outstanding, fully paid and nonassessable, and will not have been issued in
violation of or subject to any preemptive rights. None of such Shares when
delivered will be subject to any lien, claim, encumbrance, restriction or any
other claim of any third party. The capital stock of the Company, including
the Firm Shares and the Additional Shares, conform in all material respects to
the descriptions thereof contained or incorporated by reference in the
Registration Statement and the Prospectus.
(i) Each of the Company and its subsidiaries has been duly
organized and is validly existing as a corporation or partnership or similar
organization under foreign law in good standing under the laws of its
jurisdiction of incorporation or organization. Each of the Company and its
subsidiaries is duly qualified and in good standing as a foreign corporation or
partnership or similar organization under foreign law 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 which will not
in the aggregate have a material adverse effect on the business, properties,
financial condition, results of operations or prospects of the Company and its
subsidiaries taken as a whole. Each of the Company and its subsidiaries has
all requisite power and authority, and all necessary consents, approvals,
authorizations, orders, registrations, qualifications, licenses and permits of
and from any public, regulatory or governmental agencies and bodies, 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,
and no such consent, approval, authorization, order, registration,
qualification, license or permit contains a materially burdensome restriction
not adequately disclosed in the Registration Statement and the Prospectus.
(j) Neither the Company nor any of its subsidiaries (i) is in
violation of its corporate charter or bylaws or other similar organizational
documents, (ii) is in default under any lease, license, indenture, mortgage,
deed of trust, note, bank loan or other evidence of indebtedness or any other
agreement, understanding or instrument to which the Company or any such
subsidiary is a party or by which the Company or any such subsidiary or any
property of the Company or any of such subsidiary may be bound or affected,
which default may have a material adverse effect on the business, properties,
financial condition, results of operations or prospects of the Company and its
subsidiaries taken as a whole, or (iii) is in violation of any law, ordinance,
governmental rule or regulation or court decree to which it may be subject or
has failed to obtain any license, permit, certificate, franchise or other
governmental authorization or permit necessary to the ownership of its property
or to the conduct of its business, which violation or failure may have a
material adverse effect on the business, properties, financial condition,
results of operations or prospects of the Company and its subsidiaries taken as
a whole.
(k) Except as described in the Registration Statement and the
Prospectus, and any documents incorporated by reference therein (including the
notes to the financial statements included or incorporated by reference
therein), there are no outstanding warrants or options to purchase any shares
of the capital stock of the Company and there are no preemptive or other rights
to subscribe for or to purchase, and no restrictions upon, any capital stock of
the Company pursuant to the Company's Articles of Incorporation or Bylaws or
any agreement or other instrument to which the Company is a party or by which
it is bound.
(l) There is no litigation or proceeding pending or, to the
knowledge of the Company, threatened, before or by any court or government
agency, authority or body, or any arbitrator against the Company or any of its
subsidiaries that (i) could reasonably be expected to have a material adverse
effect on the business, properties, financial condition, results of operations
or prospects of the Company and its subsidiaries taken as a whole, or (ii) is
required to be disclosed in the Registration Statement or the Prospectus and is
not so disclosed and adequately summarized therein.
(m) The financial statements (including the related notes and
supporting schedules) included in the Registration Statement and the
preliminary prospectus or the Prospectus, or incorporated by reference therein,
present fairly in accordance with generally accepted accounting principles the
financial condition and results of operations of the entities purported to be
shown thereby, at the dates and for the periods indicated, and have been
prepared in conformity with generally accepted accounting principles applied on
a consistent basis throughout the periods involved.
(n) No relationship, direct or indirect, exists between or
among the Company or any of its subsidiaries, on the one hand, and the
directors, officers or shareholders of the Company or any of its subsidiaries,
on the other hand, which is required by the Act or by the Regulations to be
described in the Registration Statement and the Prospectus that is not so
described or is not adequately described.
(o) There are no contracts or other documents that are
required to be filed as exhibits to the Registration Statement by the Act or by
the Regulations that have not been filed as exhibits to the Registration
Statement, or that are required to be summarized in the Prospectus that are not
so summarized or are not adequately summarized.
(p) No person has the right to request or require the Company
or any of its subsidiaries to register any capital stock for offering and sale
under the Act whether by reason of the filing of the Registration Statement
with the Commission or the issue and sale of the Shares or otherwise.
(q) The Company has not taken and shall not take, directly or
indirectly, any action designed to cause or result in, or that has constituted
or that might reasonably be expected to constitute, the stabilization or
manipulation of the price of the shares of capital stock of the Company to
facilitate the sale or resale of the Shares.
(r) The Class A Common Stock is quoted on the Nasdaq National
Market.
(s) The Company is not, and upon consummation of the
transactions contemplated hereby will not be, subject to registration as an
"investment company" under the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(t) The conditions for use of Form S-3, as set forth in the
General Instructions thereto, have been satisfied.
B. Each Selling Shareholder named in the applicable Terms
Agreement severally represents and warrants to, and agrees with, the several
Underwriters that:
(a) The execution, delivery and performance of such
applicable Terms Agreement (which incorporates this Agreement by reference) by
such Selling Shareholder and the consummation of the transactions contemplated
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, instrument (including, in the case of the Xxxxx X. Xxxxxxx, Xx.
Charitable Remainder Unitrust (the "Trust"), the declaration of trust for the
Trust), 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 property or assets.
(b) 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 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 such applicable Terms Agreement (which incorporates this
Agreement by reference) and the consummation of the transactions contemplated
thereby, including the sale, assignment, transfer and delivery of the Shares to
be sold, assigned, transferred and delivered by such Selling Shareholder
thereunder.
(c) Such applicable Terms Agreement (which incorporates this
Agreement by reference) has been duly and validly authorized, 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 rights to indemnity
thereunder may be limited by applicable federal or state securities laws or the
public policy underlying such laws and except to the extent that enforcement
may be limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally and subject to general principles of
equity.
(d) Such Selling Shareholder has good, valid and marketable
title to the Shares to be sold by such Selling Shareholder pursuant to the
applicable Terms Agreement, free and clear of all liens, encumbrances, claims,
security interests, restrictions on transfer, shareholders' agreements, voting
trusts and other defects in title whatsoever, with full power to deliver such
Shares thereunder, and, upon the delivery of and payment for such Shares as
therein contemplated, each of the Underwriters will receive good, valid and
marketable title to the Shares purchased by it from such Selling Shareholder,
free and clear of all liens, encumbrances, claims, security interests,
restrictions on transfer, shareholders' agreements, voting trusts and other
defects in title whatsoever.
(e) Such Selling Shareholder has not taken and shall not
take, directly or indirectly, any action designed to cause or result in, or
that might reasonably be expected to constitute the stabilization or
manipulation of the price of the shares of capital stock of the Company to
facilitate the sale or resale of the Shares.
(f) 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 all times subsequent thereto and including the
Closing Date, and during such longer periods as the Prospectus may be required
to be delivered in connection with sales by the Underwriters or a dealer, such
parts of the Registration Statement and the Prospectus and any amendments
thereof and supplements thereto as relate to such Selling Shareholder and are
based upon information furnished in writing to the Company or the Underwriters
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 not misleading, and no event will have occurred with respect
to such Selling Shareholder that should have been set forth in an amendment or
supplement to the Registration Statement or Prospectus that has not then been
set forth in such an amendment or supplement; and when any related 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 such preliminary prospectus and any amendments thereof and supplements
thereto as relate to such Selling Shareholder and are based on information
furnished in writing to the Company or the Underwriters 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 under which they were made, not
misleading.
(g) The information pertaining to such Selling Shareholder
under the caption "Selling Shareholders" in the Prospectus is complete and
accurate.
2. PURCHASE, SALE AND DELIVERY OF THE SHARES.
(a) The Terms Agreement shall set forth the number of Firm
Shares to be purchased by the several Underwriters. Each Underwriter shall be
obligated to purchase from the Company and any Selling Shareholders that number
of the Firm Shares set forth in the Terms Agreement which represents the same
proportion of the number of such Firm Shares to be sold by the Company and any
Selling Shareholders as the number of Firm Shares set forth opposite the name
of such Underwriter in the Terms Agreement represents to the total number of
Firm Shares to be purchased by all of the Underwriters pursuant to the Terms
Agreement. The respective purchase obligations of the Underwriters with
respect to such Firm Shares shall be rounded among the Underwriters to avoid
fractional shares, as the Representatives may determine. Delivery of
certificates and payment of the purchase price for the Firm Shares shall be
made at the location specified in the Terms Agreement, or at 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 third or fourth business day (as
permitted under Rule 15c6-1 of the Exchange Act) following the determination of
the initial public offering price of such Firm Shares (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 the Representatives, any 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 such
Firm Shares shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through
the Representatives of the purchase price for such Firm Shares to the order of
the Company and any Selling Shareholders by certified or official bank checks
payable in New York Clearing House next-day funds. Certificates for such Firm
Shares shall be registered in such name or names and in such authorized
denominations as the Representatives may request in writing at least two full
business days prior to the Closing Date. The Company and any Selling
Shareholders will permit the Representatives to examine and package such
certificates for delivery at least one full business day prior to the Closing
Date.
(b) In addition, the Terms Agreement may set forth the number
of Additional Shares with respect to which the Company and any Selling
Shareholders grant an option to the several Underwriters to purchase. The
option of the Underwriters to purchase such Additional Shares shall be at the
same purchase price per share to be paid by the several Underwriters to the
Company and any Selling Shareholders for the Firm Shares set forth in the Terms
Agreement, 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), in whole or in part, on or before the thirtieth day
following the date of the Prospectus, by written notice by the Representatives
to the Company. 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 the Representatives, 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 any
Additional Shares relating to any Terms Agreement shall be registered in such
name or names and in such authorized denominations as the Representatives may
request in writing at least two full business days prior to the Additional
Closing Date set forth in the Terms Agreement. The Company will permit the
Representatives 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 that bears
the same relationship to the aggregate number of Additional Shares being
purchased by the Underwriters, as the number of Firm Shares set forth opposite
the name of such Underwriter in the applicable Terms Agreement (or such number
increased as set forth in SECTION 9 hereof) bears to the aggregate number of
Firm Shares being purchased pursuant to such Terms Agreement, subject, however,
to such adjustments to eliminate any fractional shares as the Representatives
in their sole discretion shall make. Payment for such Additional Shares shall
be made by certified or official bank check or checks, in New York Clearing
House next-day funds, payable to the order of the Company as specified in the
Terms Agreement, or on such other terms as may be mutually acceptable, upon
delivery of the certificates for the Additional Shares to the Representatives
for the respective accounts of the Underwriters.
3. PUBLIC OFFERING. The Company is advised by the Representatives that
the Underwriters propose to make a public offering of their respective portions
of the Shares as soon after the applicable Terms Agreement for such Shares has
been entered into as in the Representatives' judgment is advisable. The terms
of the public offering of the Shares are 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 best efforts to cause any
amendment to the Registration Statement to become effective as promptly as
possible and will notify the Representatives immediately (i) when any
amendments to the Registration Statement 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. The Company will not file any
amendment to the Registration Statement or any amendment of or supplement to
the Prospectus before or after the effective date of the Registration Statement
to which the Representatives shall reasonably object in writing after being
timely furnished in advance a copy thereof.
(b) 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 the Representatives
promptly and prepare and file with the Commission an appropriate amendment or
supplement (in form and substance satisfactory to the Representatives) that
will correct such statement or omission or which will effect such compliance
and will use its best efforts to have any amendment to the Registration
Statement declared effective as soon as possible.
(c) The Company will promptly deliver to the Representatives
two signed copies of the 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 several Underwriters such
number of copies of any preliminary prospectus, the Prospectus, the
Registration Statement, and all amendments of and supplements to such
documents, if any, and all documents incorporated by reference in the
Registration Statement and the Prospectus or any amendment thereof or
supplement thereto, without exhibits, as the Representatives may reasonably
request.
(d) The Company will endeavor in good faith, in cooperation
with the Representatives, 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 the Representatives may designate and to maintain such
qualification in effect for so long as required for the distribution thereof.
(e) The Company will make generally available (within the
meaning of Section 11(a) of the Act) to its security holders and to the
Representatives as soon as practicable, but not later than 45 days after the
end of its fiscal quarter in which the first anniversary of the effective date
of the Registration Statement occurs (or not later than 90 days after the end
of such fiscal quarter if such fiscal quarter is the last fiscal quarter of the
fiscal year), 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 12 consecutive months beginning after the effective date of the
Registration Statement.
(f) During a period of 90 days from the date of the
Prospectus, the Company will not, without the Representatives' prior written
consent, issue, sell, offer or agree to sell, or otherwise dispose of, directly
or indirectly, any class of capital stock of the Company of which the Shares
form a part (or any securities convertible into, exercisable for or
exchangeable for such class of capital stock), and the Company will obtain the
undertaking of each person who is an executive officer and/or director as of
the date of the applicable Terms Agreement not to engage in any of the
aforementioned transactions on their own behalf, other than the Company's sale
of Shares hereunder, the Company's issuance of Class A Common Stock upon the
exercise of presently outstanding stock options, sales of securities pursuant
to the Company's employee stock purchase plan, the grant of options to
directors of the Company as provided in the Company's stock option plans and
the issuance of shares of Class A Common Stock upon exercise thereof, and in
connection with acquisitions.
(g) During a period of three years from the filing with the
Commission of any Prospectus Supplement pursuant to Rule 424 of the
Regulations, the Company will furnish to the Representatives, upon request,
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 or any national securities exchange or quotation system upon which
the class of capital stock of the Company of which the Shares form a part may
be listed.
(h) The Company will not take, directly or indirectly, any
action that might reasonably be expected to cause or result in (i)
stabilization of the price of the class of capital stock of the Company of
which the Shares form a part to facilitate the sale or resale of such class of
capital stock, or (ii) manipulation of the price of such class of capital
stock.
(i) The Company will take, and will cause its subsidiaries to
take, such action as may be necessary to comply with the rules and regulations
of the Nasdaq National Market in respect of the offering of the Shares.
(j) The Company will apply the proceeds from the sale of the
Shares as set forth under "Use of Proceeds" in the Prospectus and will take
such steps as shall be necessary to ensure that neither the Company nor any
subsidiary shall become an "investment company" within the meaning of such term
under the Investment Company Act, and the rules and regulations thereunder.
B. Each Selling Shareholder severally covenants and agrees with
the several Underwriters that during a period of 90 days from the date of the
Prospectus, such Selling Shareholder will not, without the Representatives'
prior written consent, sell, offer or agree to sell, or otherwise dispose of,
directly or indirectly, any class of capital stock of the Company of which the
Shares form a part (or any securities convertible into, exercisable for or
exchangeable for such class of capital stock).
5. PAYMENT OF EXPENSES. Whether or not the transactions contemplated
in this Agreement or any Terms Agreement are consummated or this Agreement or
any Terms Agreement is terminated, the Company hereby agrees to pay all costs
and expenses incident to the performance of the obligations of the Company and
the Selling Shareholders hereunder and under any Terms Agreement, 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, the Terms Agreement and
the Agreement Among Underwriters) 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 reasonable fees of counsel for
the Underwriters and such counsel's disbursements in relation thereto, and (iv)
if appropriate, the review of the terms of the public offering of the Shares by
the National Association of Securities Dealers, Inc.; provided, however, that
the Selling Shareholders hereby agree to reimburse the Company for such
expenses as are described as being payable by the Selling Shareholders in
Part II of the Registration Statement.
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 and in any Terms Agreement, 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 the Representatives or to Jenkens & Xxxxxxxxx, a Professional
Corporation ("Underwriters' Counsel"), pursuant to this SECTION 6 of any
misstatement or omission, to the performance by the Company and the Selling
Shareholders of their respective obligations hereunder, and to the following
additional conditions:
(a) The Registration Statement shall have become effective not
later than 5:30 p.m., New York time, on the day following the date of any
applicable Terms Agreement or at such later time and date as shall have been
consented to in writing by the Representatives, and, at or prior to the Closing
Date and 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.
(b) At the Closing Date and the Additional Closing Date, the
Representatives shall have received the opinion of Jones, Walker, Waechter,
Poitevent, Carrere & Xxxxxxx, 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 reasonably satisfactory to
Underwriters' Counsel, to the effect that:
(i) Each of the Company and its subsidiaries listed on
SCHEDULE II to any applicable Terms Agreement (the "Significant 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 Significant 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 business, properties, financial condition,
results of operations or prospects of the Company and its subsidiaries, taken
as a whole. Each of the Company and the Significant Subsidiaries has all
requisite corporate authority to own, lease and license its respective
properties and conduct its business as now being conducted and as described in
the Registration Statement and the Prospectus. Except as otherwise indicated
in such SCHEDULE II, all of the issued and outstanding capital stock of each
Significant Subsidiary of the Company is held of record by the Company.
(ii) The Company has authorized capital stock as set forth in
the Registration Statement and the Prospectus. All of the outstanding shares
of capital stock of the Company are duly and validly authorized and issued, are
fully paid and nonassessable and were not issued in violation of or subject to
any preemptive rights. The Shares to be delivered on the Closing Date, or
Additional Closing Date, as the case may be, have been duly and validly
authorized and, when delivered in accordance with the applicable Terms
Agreement, will be duly and validly issued, fully paid and nonassessable and
will not have been issued in violation of or subject to any preemptive rights.
Each of the Underwriters will receive good, valid and marketable title to the
Firm Shares and the Additional Shares being sold by the Company hereunder and
under the applicable Terms Agreement, free and clear of all liens,
encumbrances, claims, security interests, restrictions on transfer,
shareholders' agreements, voting trusts and other defects of title whatsoever.
(iii) The capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof incorporated by
reference in the Registration Statement and the Prospectus; the certificates
for the Shares are in proper form under Louisiana law.
(iv) The Class A Common Stock is listed on the Nasdaq National
Market.
(v) Such counsel does not know of any contracts or other
documents that are required to be filed as exhibits to the Registration
Statement by the Act or by the Regulations that have not been filed as exhibits
to the Registration Statement, or that are required to be summarized in the
Prospectus that are not so summarized.
(vi) To the best of such counsel's knowledge, the Company is
not in violation of its corporate charter or bylaws and neither the Company nor
any of its Significant Subsidiaries is in default under (and no event has
occurred which with notice, lapse of time, or both, would constitute a breach
of, or a default under), any agreement, license, mortgage, deed of trust, bank
loan, credit agreement, indenture or instrument filed as an exhibit to the
Registration Statement (or as an exhibit to the Company's most recent
Form 10-K, and any Form 10-Qs filed thereafter, incorporated by reference in
the Registration Statement), which default would have a material adverse affect
on the business, properties, financial condition, results of operations or
prospects of the Company and its subsidiaries taken as a whole.
(vii) The Company has all necessary corporate power to execute
and deliver this Agreement and any applicable Terms Agreement and to perform
its obligations (including the issuance, sale and delivery of the Shares to be
sold by the Company) hereunder and thereunder.
(viii) This Agreement and any applicable Terms Agreement have
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 their respective terms, except to the extent that rights to
indemnity hereunder or thereunder may be limited by federal or state securities
laws or the public policy underlying such laws and except to the extent that
enforcement may be limited by bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally and subject to general principles of
equity.
(ix) To the best of such counsel's knowledge, 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, to the best knowledge of such counsel, any of its
Significant Subsidiaries, which, if resolved against the Company or such
subsidiary, individually or, to the extent involving related claims or issues,
in the aggregate, is of a character required to be disclosed in the
Registration Statement and the Prospectus, which has not been properly
disclosed therein.
(x) The execution, delivery, and performance of this
Agreement and the applicable Terms Agreement, and the consummation of the
transactions contemplated hereby and thereby by the Company, will not (A)
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 of its Significant Subsidiaries pursuant to the terms of any
agreement or instrument filed as an exhibit to the Registration Statement (or
as an exhibit to the Company's most recent Form 10-K, and any Form 10-Qs filed
thereafter, incorporated by reference in the Registration Statement) or any
material franchise, license or permit known to such counsel to which the
Company or any of its Significant Subsidiaries is a party or by which any of
such corporations or their respective properties or assets may be bound, or (B)
violate or conflict with any provision of the Articles of Incorporation or
Bylaws of the Company or any of its Significant Subsidiaries, or, to the best
knowledge of such counsel, 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 of its Significant
Subsidiaries or any of their respective properties or assets. To the best
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 of its Significant Subsidiaries or any of their respective
properties or assets is required for the execution, delivery and performance of
this Agreement, the applicable Terms Agreement and the consummation of the
transactions contemplated hereby and thereby, 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.
(xi) The Registration Statement and the Prospectus and any
amendments thereof or supplements 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 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.
(xii) The Registration Statement is effective under the Act,
and, to the best 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.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the independent public accountants of the Company
and representatives of the Underwriters at which the contents of the
Registration Statement and the Prospectus were discussed and, although such
counsel is not passing upon, and does not assume responsibility for and has not
verified, the accuracy, completeness or fairness of the statements contained in
the Registration Statement or the Prospectus, on the basis of the foregoing
(relying as to materiality upon the opinions of officers and other
representatives of the Company) and without independent check or verification,
nothing has come to the attention of such counsel that leads it to believe that
the Registration Statement or any amendment thereto at the time such
Registration Statement or amendment became effective contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
that the Prospectus or any supplement thereto at the date of such Prospectus or
such supplement, and at all times up to and including the Closing Date or the
Additional Closing Date, as the case may be, contained an untrue statement of a
material fact or omitted 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 (it being understood that such
counsel need express no opinion with respect to the financial statements and
schedules and other financial and statistical data included or incorporated by
reference in the Registration Statement or the Prospectus or in any amendments
thereof or supplements thereto).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
jurisdictions in which they are admitted, 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,
familiar with the applicable laws; (B) as to matters of fact, to the extent
they deem proper, 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 respecting the corporate existence or
good standing of the Company and its subsidiaries, provided that copies of any
such statements or certificates shall be delivered to Underwriters' Counsel.
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 and, in their
opinion, the Representatives and they are justified in relying thereon.
(c) At the Closing Date the Representatives shall have received the
favorable opinion of Xxxxxxx, Xxxxx & Cleveland, L.L.P., counsel for the
Selling Shareholders, dated the Closing Date, addressed to the Underwriters and
in form and substance reasonably satisfactory to Underwriters' Counsel, to the
effect that:
(i) The applicable Terms Agreement (which incorporates this
Agreement by reference) has been duly and validly authorized, executed and
delivered by the Selling Shareholders and is a valid and binding obligation of
each of the Selling Shareholders, enforceable against each of the Selling
Shareholders in accordance with its terms, except to the extent that rights to
indemnity thereunder may be limited by applicable federal or state securities
laws or the public policy underlying such laws and except to the extent that
enforcement may be limited by bankruptcy, insolvency, reorganization or similar
laws affecting creditors' rights generally and subject to general principles of
equity.
(ii) To the best knowledge of such counsel, the Selling
Shareholders have all requisite power and authority, and all necessary
consents, approvals, authorizations, orders, registrations, filings,
qualifications, licenses and permits of and from all courts and all public,
governmental or regulatory agencies and bodies as are required for the
execution, delivery and performance of the applicable Terms Agreement (which
incorporates this Agreement by reference), and the consummation of the
transactions contemplated thereby, 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.
(iii) Upon the delivery of and payment for the Shares to be
sold by the Selling Shareholders pursuant to the applicable Terms Agreement as
therein contemplated, each of the Underwriters who is not aware of any adverse
claim with respect thereto will receive good, valid and marketable title to the
Shares purchased by it from the Selling Shareholders, free and clear of all
liens, encumbrances, claims, security interests, restrictions on transfer,
shareholders' agreements, voting trusts and other defects in title whatsoever.
(iv) The execution, delivery and performance of the applicable
Terms Agreement (which incorporates this Agreement by reference) by the Selling
Shareholders and the consummation of the transactions contemplated thereby will
not violate or conflict with, to the best knowledge of such counsel, any
judgment, decree, order, statute, rule or regulation of any court or any
public, governmental or regulatory agency or body having jurisdiction over the
Selling Shareholders or any of their respective properties or assets.
(v) The Statements in the Prospectus under the caption
"Selling Shareholders," insofar as such statements constitute a summary of the
matters referred to therein, fairly present the information called for with
respect to such matters in all material respects.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
jurisdictions in which they are admitted, 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,
familiar with the applicable laws; (B) as to matters of fact, to the extent
they deem proper, on certificates of the Selling Shareholders, provided that
copies of any such statements or certificates shall be delivered to
Underwriters' Counsel. The opinions of such counsel for the Selling
Shareholders shall state that the opinion of any such other counsel is in form
satisfactory to such counsel and, in their opinion, the Representatives and
they are justified in relying thereon.
(d) At the Closing Date and the Additional Closing Date, the
Representatives shall have received a certificate of the Chief Executive
Officer and the Chief Financial Officer of the Company, dated the Closing Date,
or 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 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.
(e) At the Closing Date, the Representatives shall have received
certificates executed by the respective Selling Shareholders, each dated the
Closing Date, to the effect that the representations and warranties of such
Selling Shareholder set forth in SECTION 1 hereof are accurate, and that as of
the Closing Date, the obligations of such Selling Shareholder to be performed
hereunder on or prior thereto have been duly performed.
(f) At the time the applicable Terms Agreement is executed, and at
the Closing Date and the Additional Closing Date, the Representatives shall
have received a letter from PriceWaterhouseCoopers L.L.P., independent public
accountants for the Company, dated, respectively, as of the date of the
applicable Terms Agreement and as of the Closing Date, or Additional Closing
Date, as the case may be, addressed to the Underwriters and in form and
substance satisfactory to the Representatives, 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) stating
that, in their opinion, the financial statements and schedules, if any, of the
Company included or 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 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 interim consolidated financial statements of
the Company and its subsidiaries, a reading of the minutes of meetings and
consents of the shareholders and boards of directors of the Company and its
subsidiaries and the committees of such boards subsequent to the date of the
most recent audited consolidated balance sheet of the Company and its
subsidiaries included or incorporated by reference in the Registration
Statement and the Prospectus, inquiries of officers and other employees of the
Company and its subsidiaries who have responsibility for financial and
accounting matters of the Company and its subsidiaries with respect to
transactions and events subsequent to the date of the most recent audited
consolidated balance sheet of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and the Prospectus, 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) the unaudited consolidated financial
statements and schedules, if any, of the Company included or incorporated by
reference in the Registration Statement and the Prospectus do not 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 regulations
of the Commission thereunder or that such unaudited consolidated financial
statements are not fairly presented in conformity with generally accepted
accounting principles except to the extent certain footnote disclosures have
been omitted in accordance with applicable rules of the Commission under the
Exchange Act applied on a basis substantially consistent with that of the
audited consolidated financial statements included or incorporated by reference
in the Registration Statement and the Prospectus; (B) with respect to the
period subsequent to the date of the most recent consolidated balance sheet of
the Company and its subsidiaries included or incorporated by reference in the
Registration Statement and the Prospectus, there were, as of the date of the
most recent available monthly consolidated financial statements of the Company
and its 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 included or incorporated by
reference in the Registration Statement and the Prospectus, except for changes
or decreases that the Registration Statement and the Prospectus disclose have
occurred or may occur or which are set forth in such letter; or (C) that during
the period from the date following the date of the most recent consolidated
balance sheet of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement and the Prospectus to the date of the
most recent available monthly consolidated financial statements of the Company
and its 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, 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 its subsidiaries set forth in the
Registration Statement and the Prospectus, which have been specified by the
Representatives prior to the date of the applicable Terms 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 its
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 the Representatives (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.
(g) All proceedings taken in connection with the sale of the Firm
Shares and the Additional Shares as contemplated herein and in the applicable
Terms Agreement shall be satisfactory in form and substance to the
Representatives and to Underwriters' Counsel, and the Underwriters shall have
received from said 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 the Representatives may
reasonably require, and the Company and the Selling Shareholders shall have
furnished to Underwriters' Counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(h) Prior to the Closing Date and the Additional Closing Date the
Company and the Selling Shareholders shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives 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 the applicable Terms
Agreement, or if any of the certificates, opinions, written statements or
letters furnished to the Representatives or to Underwriters' Counsel pursuant
to this SECTION 6 shall not be in all material respects reasonably satisfactory
in form and substance to the Representatives and to Underwriters' Counsel, all
obligations of the Underwriters hereunder may be canceled by the
Representatives at, or at any time prior to, the Closing Date, and the
obligations of the Underwriters to purchase the Additional Shares may be
canceled by the Representatives 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 agrees to indemnify and hold harmless each
Underwriter, its officers, directors, partners, employees, agents and counsel,
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 as incurred
(including but not limited to 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 for the registration of the Shares, as originally filed or any
amendment thereof, or any related 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 required
to be stated therein or necessary to make the statements therein not
misleading; provided, however, that the Company 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 the Representatives
expressly for use therein. This indemnity agreement will be in addition to any
liability that the Company may otherwise have, including under this Agreement
or the applicable Terms Agreement.
(b) Each Selling Shareholder agrees to indemnify and hold harmless
each Underwriter, its officers, directors, partners, employees, agents and
counsel, 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 as
incurred (including but not limited to 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 for the registration of the Shares, as originally filed or any
amendment thereof, or any related 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 required
to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement or omission or alleged omission
was made in reliance upon and in conformity with written information furnished
to the Company or the Underwriters by or on behalf of the Selling Shareholder
expressly for use therein.
(c) Each Underwriter severally, and not jointly, agrees to
indemnify and hold harmless the Company, the Selling Shareholders, each of the
directors of the Company, each of the officers of the Company who shall have
signed the Registration Statement, its employees, agents and counsel, 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 but not limited
to 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 for the
registration of the Shares, as originally filed or any amendment thereof, or
any related 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 Representatives
expressly for use therein; provided, however, that in no case shall any
Underwriter be liable or responsible for any amount in excess of the
underwriting discount applicable to the Shares purchased by such Underwriter
hereunder. This indemnity will be in addition to any liability which any
Underwriter may otherwise have including under this Agreement or the applicable
Terms Agreement.
(d) Promptly after receipt by an indemnified party under subsection
(a) or (b) 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 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, (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 that 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), in any of which events
such fees and expenses shall be borne by the indemnifying parties. 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 as incurred (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
the Selling Shareholders any contribution received by the Company or such
Selling Shareholders 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, 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 that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company, the Selling Shareholders and the Underwriters
shall be deemed to be in the same proportion as (a) the total proceeds from the
offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Company and (b) the total proceeds from the offering
(net of underwriting discounts and commissions but before deducting expenses)
received by the Selling Shareholders and (c) the underwriting discounts and
commissions received by the Underwriters, respectively, bear to the aggregate
public offering price of the Shares, in each case as set forth in the table on
the cover page of the Prospectus; provided, however, that the relative benefits
received by the Company shall be deemed to additionally include the total
proceeds from the offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Selling Shareholders to the extent
the Selling Shareholders are not obligated to provide indemnification pursuant
to the terms of SECTION 7(B). The relative fault of the Company, 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 that 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 be liable or responsible
for any amount in excess of the underwriting discount applicable to the Shares
purchased by such Underwriter hereunder, and (ii) 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, 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) and (ii) 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. The Selling Shareholders shall not be obligated to make
contributions with respect to any claim unless the Selling Shareholder would be
obligated to provide indemnification with respect to such claim pursuant to the
terms of SECTION 7(B).
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 under any
Terms Agreement, and if the Firm Shares or Additional Shares with respect to
which such default relates do not (after giving effect to arrangements, if any,
made by the Representatives pursuant to subsection (b) below) exceed in the
aggregate 10% of the number of shares of Firm Shares or Additional Shares, as
the case may be, which all Underwriters have agreed to purchase pursuant to the
applicable Term Agreement, then such Firm Shares or Additional Shares to which
the default relates shall be purchased by the nondefaulting Underwriters in
proportion to their respective commitments hereunder.
(b) In the event that such default relates to more than 10%
of the Firm Shares, or Additional Shares, as the case may be, the
Representatives may in their discretion arrange for themselves or for another
party or parties (including any nondefaulting 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 in the applicable
Terms Agreement. In the event that within five calendar days after such a
default the Representatives do not arrange for the purchase of the Firm Shares
or Additional Shares, as the case may be, to which such default relates as
provided in this SECTION 9, the applicable Terms Agreement or, in the case of a
default with respect to the Additional Shares, the obligations of the
Underwriters to purchase and of the Company 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) and 8 hereof) or the Underwriters, but nothing in this
Agreement or the applicable Terms 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 or thereunder.
(c) In the event that the Firm Shares or Additional Shares to
which the default relates are to be purchased by the nondefaulting
Underwriters, or are to be purchased by another party or parties as aforesaid,
the Representatives or the Company shall have the right to postpone the Closing
Date, or 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 or the applicable
Terms Agreement shall include any party substituted under this SECTION 9 with
like effect as if it had originally been a party to the applicable Terms
Agreement with respect to such Firm Shares and Additional Shares.
10. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS. All representations and
warranties, covenants and agreements of the Underwriters, the Selling
Shareholders and the Company contained in this Agreement, including any Terms
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 or by or on behalf of the Company, any of its officers and
directors or the Selling Shareholders 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
the applicable Terms Agreement (including this Agreement as incorporated by
reference therein) including pursuant to SECTIONS 9 or 11 hereof.
11. EFFECTIVE DATE OF TERMS AGREEMENT; TERMINATION.
(a) Any applicable Terms Agreement (and this Agreement as
incorporated by reference therein) shall become effective at such time as the
Representatives, the Company and any Selling Shareholders shall agree upon the
initial public offering price and the purchase price per Share subject to such
Terms Agreement. 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 execution of such applicable Terms
Agreement, the Terms Agreement (and this Agreement as incorporated by reference
therein) shall thereupon terminate without liability to the Company, the
Selling Shareholders or the Underwriters, except as herein expressly provided.
Until the applicable Terms Agreement becomes effective as aforesaid, it may be
terminated by the Company by notifying the Representatives and the Selling
Shareholders, or by action of the Selling Shareholders by notifying the Company
and the Representatives or by the Representatives 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 incorporated therein shall
at all times be in full force and effect.
(b) The Representatives shall have the right to terminate the
applicable Terms Agreement (including this Agreement as incorporated by
reference therein) 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, by giving notice to the Company,
if any domestic or international event or act or occurrence has materially
disrupted, or in the Representatives' opinion will in the immediate future
materially disrupt, the securities markets; or if trading on the New York or
American Stock Exchanges or in the over-the-counter market 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 the
Company shall have sustained a material or substantial loss, which, whether or
not such loss shall have been insured, in the Representatives' judgment makes
it inadvisable to proceed with the offering, sale, or delivery of the Firm
Shares, or the Additional Shares, as the case may be, on the terms contemplated
by the Prospectus; or if there shall have been such change in the market for
the Company's securities or securities in general, or in political, financial
or economic conditions as in the Representatives' judgment makes it inadvisable
to proceed with the offering, sale or delivery of the Firm Shares, or the
Additional Shares, as the case may be, on the terms contemplated by the
Prospectus; or if, (i) either the Company or any of its subsidiaries shall have
sustained since the date of the latest audited financial statements included or
incorporated by reference in the Prospectus any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental action, order
or decree, otherwise than as set forth or contemplated in the Prospectus or
(ii) since the respective dates as of which information is given in the
Prospectus there shall have been any change in the capital stock or long-term
debt of the Company or any of its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case described
in clause (i) or (ii) above, is in Representatives' reasonable judgment so
material and adverse as to make it impracticable or inadvisable to proceed with
the offering, sale or 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, telegraph, or telecopy, confirmed in writing by
letter.
(d) If the applicable Terms Agreement (including this
Agreement as incorporated by reference therein) shall be terminated pursuant to
any of the provisions thereof or hereof (otherwise than pursuant to SECTIONS
9(B) or 11(B) hereof), or if the sale of the Shares provided for in the
applicable Terms Agreement 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 the
Selling Shareholders to perform any agreement herein or in the applicable Terms
Agreement, or comply with any provision hereof or thereof, the Company agrees
subject to demand by the Representatives, to 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 and therewith.
12. PARTIES. The Representatives represent that they are authorized to
act on behalf of the several Underwriters named in the Terms Agreement, and 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 the Representatives on
such behalf. This Agreement and the applicable Terms Agreement shall inure
solely to the benefit of, and shall be binding upon, the several Underwriters,
the Selling Shareholders and the Company 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 the applicable Terms Agreement or
any provision herein or therein contained. The term "successors and assigns"
shall not include a purchaser, in its capacity as such, of Shares from any of
the Underwriters.
13. CONSTRUCTION. This Agreement and all Terms Agreements shall be
construed in accordance with the internal laws of the State of New York,
without giving effect to the rules governing conflicts of laws. Time is of the
essence in this agreement.
Very truly yours,
Xxxxxxx Enterprises, Inc.
By: /s/ Xxxxxx X. Xxxxxxx, III
----------------------------
Title: CHIEF EXECUTIVE OFFICER
