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EXHIBIT 1.1
1,500,000 Shares
EAGLE USA AIRFREIGHT, INC.
Common Stock
UNDERWRITING AGREEMENT
January ____, 1998
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX XXXXX & COMPANY, L.L.C.
XXXXXX XXXXXX XXXXXXXX & CO., INC.
As representatives of the several Underwriters
named in Schedule I hereto
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
The shareholder of Eagle USA Airfreight, Inc., a Texas corporation (the
"Company"), named in Schedule II hereto (the "Selling Shareholder") proposes to
sell 1,500,000 shares of common stock, par value $.001 per share, of the
Company (the "Firm Shares"), to the several underwriters named in Schedule I
hereto (the "Underwriters"), and the Company and the Selling Shareholder
propose to make certain representations and warranties to each of the
Underwriters and enter into such other agreements as provided by this
Agreement. The Company proposes to issue and sell to the several Underwriters
not more than an additional 225,000 shares of its Common Stock, par value $.001
per share (the "Additional Shares"), if requested by the Underwriters as
provided in Section 2 hereof. The Firm Shares and the Additional Shares are
hereinafter referred to collectively as the "Shares." The shares of common
stock of the Company to be outstanding after giving effect to the sales
contemplated hereby are hereinafter referred to
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as the "Common Stock." The Company and the Selling Shareholder are hereinafter
sometimes referred to collectively as the "Sellers."
1. Registration Statement and Prospectus. The Company has prepared
and filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Act"), a registration statement on Form S-3, including a prospectus, relating
to the Shares. The registration statement, as amended at the time when it
became effective, including a registration statement (if any) filed pursuant to
Rule 462(b) under the Act increasing the size of the offering registered under
the Act and information (if any) deemed to be part of the registration
statement at the time of effectiveness pursuant to Rule 430A or Rule 434 under
the Act, is hereinafter referred to as the "Registration Statement"; and the
prospectus (including any prospectus subject to completion meeting the
requirements of Rule 434(a) under the Act provided by the Company with any term
sheet meeting the requirements of Rule 434(b) as the prospectus provided to
meet the requirements of Section 10(a) of the Act) in the form first used to
confirm sales of Shares is hereinafter referred as the "Prospectus."
2. Agreements to Sell and Purchase and Lock-up Agreements. On the
basis of the representations and warranties contained in this Agreement, and
subject to its terms and conditions, the Selling Shareholder agrees to sell,
and each Underwriter agrees, severally and not jointly, to purchase from the
Selling Shareholder at a price per Share of $__________ (the "Purchase Price")
the number of Firm Shares set forth opposite the name of such Underwriter in
Schedule I hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to issue
and sell the Additional Shares and the Underwriters shall have the right to
purchase, severally and not jointly, up to 225,000 Additional Shares from the
Company at the Purchase Price. Additional Shares may be purchased solely for
the purpose of covering over-allotments made in connection with the offering of
the Firm Shares. The Underwriters may exercise their right to purchase
Additional Shares in whole or in part from time to time by giving written
notice thereof to the Company within 30 days after the date of this Agreement.
You shall give any such notice on behalf of the Underwriters and such notice
shall specify the aggregate number of Additional Shares to be purchased
pursuant to such exercise and the date for payment and delivery thereof. The
date specified in any such notice shall be a business day (i) no earlier than
the Closing Date (as hereinafter defined), (ii) no later than ten business days
after such notice has been given and (iii) no earlier than two business days
after such notice has been given. If any Additional Shares are to be
purchased, each Underwriter, severally and not jointly, agrees to purchase from
the Company the number of Additional Shares (subject to such adjustments to
eliminate fractional shares as you may determine) which bears the same
proportion to the total number of Additional Shares to be purchased from the
Company as the number of Firm Shares set forth opposite the name of such
Underwriter in Schedule I bears to the total number of Firm Shares.
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The Company and the Selling Shareholder hereby agree, and the Company
shall, concurrently with the execution of this Agreement, deliver an agreement
executed by each of the directors and executive officers of the Company,
pursuant to which each such person agrees, not to offer, sell, contract to
sell, grant any option to purchase, or otherwise dispose of any common stock of
the Company or any securities convertible into or exercisable or exchangeable
for such common stock or in any other manner transfer all or a portion of the
economic consequences associated with the ownership of any such common stock,
except to the Underwriters pursuant to this Agreement, for a period of 90 days
with respect to the Company and the directors and executive officers, and one
year with respect to the Selling Shareholder, after the date of the Prospectus
without the prior written consent of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation. Notwithstanding the foregoing, during such period (i) the Company
may grant stock options pursuant to the Company's existing stock option plan,
(ii) the Company may issue shares of its common stock upon the exercise of an
option or warrant or the conversion of a security outstanding on the date
hereof, (iii) the Company may issue shares of common stock in connection with
the purchase by the Company from time to time of any properties, assets or
securities from a third party, and (iv) any natural person may make intra-
family transfers or transfers to trusts for estate planning purposes.
3. Terms of Public Offering. The Selling Shareholder is advised by
you that the Underwriters propose (i) to make a public offering of the Shares
as soon after the effective date of the Registration Statement as in your
judgment is advisable and (ii) initially to offer the Shares upon the terms set
forth in the Prospectus.
4. Delivery and Payment. The Shares shall be represented by
definitive certificates and shall be issued in such authorized denominations
and registered in such names as Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation shall request no later than two business days prior to the Closing
Date or the applicable Option Closing Date (as defined below), as the case may
be. The Shares shall be delivered by or on behalf of the Sellers, with any
transfer taxes thereon duly paid by the respective Sellers (provided, however,
that you shall pay the New York State stock transfer tax, and if you have
promptly and properly filed all necessary notices and reports with respect
thereto to obtain a rebate for such tax payment, the Sellers shall reimburse
you for associated carrying costs if such tax payment is not rebated on the
date of payment and for any portion of such tax payment not rebated), to
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation through the facilities of
The Depository Trust Company ("DTC"), for the respective accounts of the
several Underwriters, against payment to the Sellers of the Purchase Price
therefore by wire transfer of Federal or other funds immediately available in
New York City. The certificates representing the Shares shall be made
available for inspection not later than 9:30 A.M., New York City time, on the
business day prior to the Closing Date or the applicable Option Closing Date
(as defined below), as the case may be, at the office of DTC or its designated
custodian (the "Designated Office"). The time and date of delivery and payment
for the Firm Shares shall be 9:00 A.M., New York City time, on January ___,
1998 or such other time on the same or such other date as Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation and the Company shall agree in writing. The
time and date of delivery and payment for the Firm Shares are hereinafter
referred
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to as the "Closing Date". The time and date of delivery and payment for any
Additional Shares to be purchased by the Underwriters shall be 9:00 A.M., New
York City time, on the date specified in the applicable exercise notice given
by you pursuant to Section 2 or such other time on the same or such other date
as Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation and the Company shall
agree in writing. The time and date of delivery and payment for any Additional
Shares are hereinafter referred to as the "Option Closing Date".
The documents to be delivered on the Closing Date or any Option Closing
Date on behalf of the parties hereto pursuant to Section 9 of this Agreement
shall be delivered to you and the Shares shall be delivered at the Designated
Office, all on the Closing Date or such Option Closing Date, as the case may
be.
5. Agreements of the Company. The Company agrees with you:
(a) To use its commercially reasonable efforts to cause the
Registration Statement to become effective at the earliest possible
time.
(b) To advise you promptly and, if requested by you, to
confirm such advice in writing, (i) when the Registration Statement has
become effective (if the Registration Statement shall not have become
effective prior to the execution and delivery of this Agreement) and
when any post-effective amendment to it becomes effective, (ii) of any
request by the Commission for amendments to the Registration Statement
or amendments or supplements to the Prospectus or for additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the
suspension of qualification of the Shares for offering or sale in any
jurisdiction, or the initiation of any proceeding for such purposes, and
(iv) of the happening of any event during the period referred to in
paragraph (e) below which makes any statement of a material fact made in
the Registration Statement or the Prospectus untrue or which requires
the making of any additions to or changes in the Registration Statement
or the Prospectus in order to make the statements therein not misleading
in any material respect. If at any time the Commission shall issue any
stop order suspending the effectiveness of the Registration Statement,
the Company will use commercially reasonable efforts to obtain the
withdrawal or lifting of such order at the earliest possible time.
(c) To furnish to you, without charge, five signed copies of
the Registration Statement as first filed with the Commission and of
each amendment to it, including all exhibits, and to furnish to you and
each Underwriter designated by you such number of conformed copies of
the Registration Statement as so filed and of each amendment to it,
without exhibits, as you may reasonably request.
(d) Not to file any amendment or supplement to the
Registration Statement, whether before or after the time when it becomes
effective, or to make any amendment or supplement to the Prospectus
(including the issuance or filing of any term sheet within the
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meaning of Rule 434) of which you shall not previously have been advised
or to which you shall reasonably object; and to prepare and file with
the Commission, promptly upon your reasonable request, any amendment to
the Registration Statement or supplement to the Prospectus (including
the issuance or filing of any term sheet within the meaning of Rule 434)
which may be necessary or advisable in connection with the distribution
of the Shares by you, and to use its commercially reasonable best
efforts to cause the same to become promptly effective.
(e) Prior to 10:00 A.M., New York City time, on the second
business day after the date of this Agreement and from time to time
thereafter for such period as in the opinion of counsel for the
Underwriters a prospectus is required by law to be delivered in
connection with sales by an Underwriter or a dealer, to furnish to each
Underwriter and dealer as many copies of the Prospectus (and of any
amendment or supplement to the Prospectus) as such Underwriter or dealer
may reasonably request.
(f) If during the period specified in paragraph (e) any event
shall occur as a result of which, in the opinion of counsel for the
Underwriters it becomes necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading in any material respect, or if it is necessary to amend or
supplement the Prospectus to comply with any law, forthwith to prepare
and file with the Commission an appropriate amendment or supplement to
the Prospectus so that the statements in the Prospectus, as so amended
or supplemented, will not in the light of the circumstances when it is
so delivered, be misleading in any material respect, or so that the
Prospectus will comply with law, and to furnish to each Underwriter and
to such dealers as you shall specify, such number of copies thereof as
such Underwriter or dealers may reasonably request.
(g) Prior to any public offering of the Shares, to cooperate
with you and counsel for the Underwriters in connection with the
registration or qualification of the Shares for offer and sale by the
several Underwriters and by dealers under the state securities or Blue
Sky laws of such jurisdictions as you may request, to continue such
qualification in effect so long as required for distribution of the
Shares and to file such as may be necessary in order to effect such
registration or qualification provided, however, that the Company shall
not be obligated (i) to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified, (ii) to take any action
that would subject it to taxation in any jurisdiction or (iii) to
execute a consent to service of process under the laws of any
jurisdiction (except service of process with respect to the offering and
sale of the Shares).
(h) To make generally available to its stockholders as soon as
reasonably practicable an earnings statement covering a period of at
least twelve months after the effective date of the Registration
Statement (which availability must in any event commence no later than
90 days after the end of such twelve month period) which shall
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satisfy the provisions of Section 11(a) of the Act, and to advise you in
writing when such statement has been so made available.
(i) During the period of five years after the date of this
Agreement, (i) to mail as soon as reasonably practicable after the end
of each fiscal year to the record holders of its Common Stock a
financial report of the Company and its subsidiaries on a consolidated
basis (and a similar financial report of all unconsolidated
subsidiaries, if any), all such financial reports to include a
consolidated balance sheet, a consolidated statement of operations, a
consolidated statement of cash flows and a consolidated statement of
stockholders' equity as of the end of and for such fiscal year, together
with comparable information as of the end of and for the preceding year,
certified by independent certified public accountants, and (ii) to mail
and make generally available as soon as practicable after the end of
each quarterly period (except for the last quarterly period of each
fiscal year) to such holders who request them, a consolidated balance
sheet, a consolidated statement of operations and a consolidated
statement of cash flows (and similar financial reports of all
unconsolidated subsidiaries, if any) as of the end of and for such
period, and for the period from the beginning of such year to the close
of such quarterly period, together with comparable information for the
corresponding periods of the preceding year.
(j) During the period referred to in paragraph (i), to furnish
to you as soon as available a copy of each report or other publicly
available information of the Company mailed to the holders of Common
Stock or filed with the Commission and such other publicly available
information concerning the Company and its subsidiaries as you may
reasonably request.
(k) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, to pay all
costs, expenses, fees and taxes incident to (i) the preparation,
printing, filing and distribution under the Act of the Registration
Statement (including financial statements and exhibits), each
preliminary prospectus and all amendments and supplements to any of them
prior to or during the period specified in paragraph (e), (ii) the
printing and delivery of the Prospectus and all amendments or
supplements to it during the period specified in paragraph (e), (iii)
the printing or reproduction and delivery of this Agreement, the
Preliminary and Supplemental Blue Sky Memoranda and all other
agreements, memoranda, correspondence and other documents printed and
delivered in connection with the offering of the Shares (including in
each case any disbursements of counsel for the Underwriters relating to
such printing, reproduction and delivery), (iv) the registration or
qualification of the Shares for offer and sale under the securities or
Blue Sky laws of the several states and Canadian provinces (including in
each case the fees and disbursements of counsel for the Underwriters
relating to such registration or qualification and memoranda relating
thereto), (v) filings and clearance with the National Association of
Securities Dealers, Inc. in connection with the offering, (vi) the
listing of the Additional Shares on the National Association of
Securities Dealers Automated Quotation system ("NASDAQ") National
Market, (vii) furnishing such
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copies of the Registration Statement, the Prospectus and all amendments
and supplements thereto as may be requested in accordance with the
provisions of this Agreement for use in connection with the offering or
sale of the Shares by the Underwriters or by dealers to whom Shares may
be sold and (viii) the performance by the Company and the Selling
Shareholder of their other obligations under this Agreement. The
Company and the Selling Shareholder may agree as between themselves and
without limiting the rights of the Underwriters under this Agreement as
to the respective amount of such costs, expenses, fees and taxes for
which each of them will be responsible.
(l) To use its commercially reasonable efforts to maintain the
inclusion of such Common Stock in the NASDAQ National Market (or on a
national securities exchange) for a period of five years after the
effective date of the Registration Statement.
(m) To use its commercially reasonable efforts to do and
perform all things required or necessary to be done and performed under
this Agreement by the Company prior to the Closing Date or any Option
Closing Date, as the case may be, and to satisfy all conditions
precedent to the delivery of the Shares.
6. Representations and Warranties of the Company. The Company
represents and warrants to each Underwriter that:
(a) The Registration Statement has or will become effective;
no stop order suspending the effectiveness of the Registration Statement
is or will be in effect, and no proceedings for such purpose are pending
before or threatened by the Commission.
(b) (i) The Registration Statement, when it becomes or became
effective, will or did not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, (ii) the Registration
Statement and the Prospectus comply and, as amended or supplemented, if
applicable, will comply in all material respects with the Act and (iii)
the Prospectus does not contain and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, except that the representations and warranties set forth in
this paragraph (b) do not apply to statements or omissions in the
Registration Statement or the Prospectus (or any supplement or amendment
to them) based upon information relating to any Underwriter furnished to
the Company in writing by such Underwriter through you expressly for use
therein.
(c) Any term sheet and prospectus subject to completion
provided by the Company to the Underwriters for use in connection with
the offering and sale of the Shares pursuant to Rule 434 under the Act
together are not materially different from the
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prospectus included in the Registration Statement (exclusive of any
information deemed to be a part thereof by virtue of Rule 434(d)).
(d) Except for those matters amended or included in the
Prospectus, the preliminary prospectus filed as part of the Registration
Statement or filed thereafter as part of a subsequent amendment or
pursuant to Rule 424 of the Act complied when so filed in all material
respects with the Act; and did not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(e) The Company and each of its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing
under the laws of its jurisdiction of incorporation and has the
corporate power and authority to carry on its business as it is
currently being conducted and to own, lease and operate its properties,
and each is duly qualified and is in good standing as a foreign
corporation authorized to do business in each jurisdiction in which the
nature of its business or its ownership or leasing of property requires
such qualification, except where the failure to be so qualified would
not have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(f) All of the outstanding shares of capital stock of, or
other ownership interests in, each of the Company's subsidiaries have
been duly authorized and validly issued and are fully paid and
non-assessable, and at the Closing will be owned by the Company, free
and clear of any security interest, claim, lien, encumbrance or adverse
interest of any nature.
(g) All the outstanding shares of capital stock of the Company
(including the Shares to be sold by the Selling Shareholder) have been
duly authorized and validly issued and are fully paid, non-assessable
and were not issued in violation of or subject to any preemptive or
other similar rights to subscribe for or purchase the same; and the
Additional Shares, if any, to be issued and sold by the Company
hereunder have been duly authorized and, when issued and delivered to
the Underwriters against payment therefor as provided by this Agreement,
will be validly issued, fully paid and non-assessable, and the issuance
of such Additional Shares will not be subject to any preemptive or
similar rights.
(h) The authorized capital stock of the Company, including the
Common Stock, conforms as to legal matters in all material respects to
the description thereof contained in the Prospectus.
(i) Neither the Company nor any of its subsidiaries is in
violation of its respective charter or by-laws or in default in the
performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness
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or in any other agreement, indenture or instrument material to the
conduct of the business of the Company and its subsidiaries, taken as a
whole, to which the Company or any of its subsidiaries is a party or by
which it or any of its subsidiaries or their respective property is
bound, except for any such violation or default that would not have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(j) The execution, delivery and performance of this Agreement,
compliance by the Company with all the provisions hereof and the
consummation of the transactions contemplated hereby will not require
any consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body
(except as such may be required under (i) the Act, (ii) the Exchange
Act, or (iii) the securities or Blue Sky laws of the various states) and
will not conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the charter or by-laws of the Company
or any of its subsidiaries or any agreement, indenture or other
instrument to which it or any of its subsidiaries is a party or by which
it or any of its subsidiaries or their respective property is bound, or
violate or conflict with any existing laws, administrative regulations
or rulings or court decrees applicable to the Company, any of its
subsidiaries or their respective property.
(k) Except as otherwise set forth in the Prospectus, there are
no material legal or governmental proceedings pending to which the
Company or any of its subsidiaries is a party or of which any of their
respective property is the subject, and, to the best of the Company's
knowledge, no such proceedings are threatened or contemplated. No
contract or document of a character required to be described in the
Registration Statement or the Prospectus or to be filed as an exhibit to
the Registration Statement is not so described or filed as required.
(l) Neither the Company nor any of its subsidiaries has
violated any existing foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), nor any federal or state law relating to
discrimination in the hiring, promotion or pay of employees nor any
applicable federal or state wages and hours laws, nor any provisions of
the Employee Retirement Income Security Act or the rules and regulations
promulgated thereunder, which in each case might result in any material
adverse change in the business, prospects, financial condition or
results of operation of the Company and its subsidiaries, taken as a
whole.
(m) Except as disclosed in the Prospectus, the Company and
each of its subsidiaries has such permits, licenses, franchises and
authorizations of governmental or regulatory authorities ("permits"),
including, without limitation, under any applicable Environmental Laws,
as are necessary to own, lease and operate its respective properties and
to conduct its business, except where the failure to have such permits
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; the
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Company and each of its subsidiaries has fulfilled and performed all of
its material obligations with respect to such permits and no event has
occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material
impairment of the rights of the holder of any such permit, except where
such revocation, termination or impairment would not have a material
adverse effect on the Company and its subsidiaries, taken as a whole;
and, except as described in the Prospectus, such permits contain no
restrictions that are materially burdensome to the Company or any of its
subsidiaries.
(n) Except as otherwise set forth in the Prospectus or such as
are not material to the business, prospects, financial condition or
results of operation of the Company and its subsidiaries, taken as a
whole, the Company and each of its subsidiaries has good and defensible
title, free and clear of all liens, claims, encumbrances and
restrictions except liens for taxes not yet due and payable, to all
property and assets described in the Registration Statement as being
owned by it. All leases to which the Company or any of its subsidiaries
is a party are valid and binding and no default has occurred or is
continuing thereunder, which might result in any material adverse change
in the business, prospects, financial condition or results of operation
of the Company and its subsidiaries taken as a whole, and the Company
and its subsidiaries enjoy peaceful and undisturbed possession under all
such leases to which any of them is a party as lessee with such
exceptions as do not materially interfere with the use made by the
Company or such subsidiary.
(o) The Company and each of its subsidiaries maintains
reasonably adequate insurance.
(p) Price Waterhouse LLP are independent public accountants
with respect to the Company as required by the Act.
(q) The financial statements, together with related schedules
and notes forming part of the Registration Statement and the Prospectus
(and any amendment or supplement thereto), present fairly in all
material respects the consolidated financial position, results of
operations and changes in financial position of the Company and its
subsidiaries on the basis stated in the Registration Statement at the
respective dates or for the respective periods to which they apply; such
statements and related schedules and notes have been prepared in
accordance with generally accepted accounting principles consistently
applied throughout the periods involved, except as disclosed therein;
and the other financial and statistical information and data set forth
in the Registration Statement and the Prospectus (and any amendment or
supplement thereto) is, in all material respects, accurately presented
and prepared on a basis consistent with such financial statements and
the books and records of the Company.
(r) The election by the Company, and the consent to such
election by its stockholders (and, if applicable, by the spouses of such
stockholders), to cause the
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Company to be taxed as an S corporation as provided in Section 1362 of
the Internal Revenue Code of 1986, as amended (and the predecessor Code)
(the "Code"), was valid and effective at all times from October 1, 1992
through December 4, 1995, and neither the Internal Revenue Service nor
any other person or entity has challenged or indicated a present
intention to challenge the prior status of the Company as an S
corporation during any portion of such period; the Company has incurred
no liability for taxes under Section 1374 or 1375 of the Code during or
for any year in such period; and the Company has validly adopted a
fiscal year as provided in Sections 444 and 1378 of the Code and Revenue
Procedure 83-25, 1983-1, C.B. 689.
(s) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(t) No holder of any security of the Company other than the
Selling Shareholder has any right that has not been waived to require
registration of shares of Common Stock or any other security of the
Company in the Registration Statement.
(u) The Firm Shares are listed on the NASDAQ National Market.
The Company has filed an application to list the Additional Shares on
the NASDAQ National Market and has received notification that the
listing has been approved, subject to notice of issuance of the
Additional Shares.
(v) Except as otherwise disclosed in the Registration
Statement, as of the date set forth therein, there were no outstanding
subscriptions, rights, warrants, options, calls, convertible securities,
commitments of sale or liens related to or entitling any person to
purchase or otherwise to acquire from the Company any shares of the
capital stock of, or other ownership interest in, the Company or any
subsidiary thereof.
(w) Except as disclosed in the Prospectus, there are no
material business relationships or related party transactions required
to be disclosed or incorporated by reference therein by Item 404 of
Regulation S-K of the Commission.
(x) The Company and each of its subsidiaries maintains a
system of internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to maintain
asset accountability; (iii) access to assets is permitted only in
accordance with management's general or specific authorization; and (iv)
the recorded accountability for assets is compared with the existing
assets at reasonable intervals and appropriate action is taken with
respect to any differences.
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(y) All material tax returns required to be filed by the
Company and each of its subsidiaries in any jurisdiction have been
filed, other than those filings being contested in good faith, and all
material taxes, including withholding taxes, penalties and interest,
assessments, fees and other charges due pursuant to such returns or
pursuant to any assessment received by the Company or any of its
subsidiaries have been paid, other than those being contested in good
faith and for which adequate reserves have been provided or the failure
of which to file or to be paid would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole.
7. Representations and Warranties of the Selling Shareholder. The
Selling Shareholder represents and warrants to each Underwriter that:
(a) The Selling Shareholder is the sole record owner of the
Shares to be sold by such Selling Shareholder under this Agreement; upon
delivery of the Shares to be sold by the Selling Shareholder under this
Agreement and payment of the purchase price therefor as contemplated by
this Agreement, assuming the Underwriters have purchased the Shares for
value in good faith and without notice of any adverse claim or actual
knowledge of a restriction on transfer, the Underwriters will have
acquired all rights of such Selling Shareholder in the Shares free of
any adverse claim, any lien in favor of the Company and any restrictions
on transfer imposed by the Company. The owner of the Shares, if other
than such Selling Shareholder, is precluded from asserting against the
Underwriters the ineffectiveness of any unauthorized endorsement or
instruction, assuming the Underwriters purchased the Shares for value in
good faith and without notice of any adverse claim.
(b) Upon delivery of and payment for the Shares to be sold by
the Company pursuant to this Agreement, good and marketable title to
such Shares will pass to the Underwriters, free and clear of all
restrictions on transfer, liens, encumbrances, security interests and
claims whatsoever other than pursuant to the Shareholders' Agreement,
which, with respect to the Firm Shares, will be terminated concurrently
therewith.
(c) The Selling Shareholder has, and on the Closing Date will
have, full legal right and authority to enter into this Agreement, and
to sell, assign, transfer and deliver such Shares in the manner provided
herein, and this Agreement has been duly authorized, executed and
delivered by the Selling Shareholder and this Agreement is a valid and
binding agreement of the Selling Shareholder enforceable in accordance
with its terms, except as rights to indemnity and contribution hereunder
may be limited by applicable law or public policy grounds, and except as
enforcement (i) may be limited by bankruptcy, insolvency, reorganization
or other similar laws affecting creditors' rights generally and (ii) is
subject to general principles of equity and public policy (regardless of
whether such enforceability is considered in a proceeding in equity or
at law).
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(d) Other than as contemplated by this Agreement, the Selling
Shareholder has not taken, and will not take, directly or indirectly,
any action designed to, or which might reasonably be expected to, cause
or result in stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Shares pursuant
to the distribution contemplated by this Agreement, and other than as
permitted by the Act, the Selling Shareholder has not distributed and
will not distribute any prospectus or other offering material in
connection with the offering and sale of the Shares.
(e) The execution, delivery and performance of this Agreement
by the Selling Shareholder, compliance by the Selling Shareholder with
all the provisions hereof and the consummation of the transactions
contemplated hereby will not require any consent, approval,
authorization or other order of any court, regulatory body,
administrative agency or other governmental body (except as such may be
required under (i) the Act, (ii) the Exchange Act of 1934, or (iii) the
securities or Blue Sky laws of the various states) and will not conflict
with or constitute a breach of any of the terms or provisions of, or a
default under, or any agreement, indenture or other instrument to which
the Selling Shareholder is a party or by which the Selling Shareholder
or property of the Selling Shareholder is bound, or violate or conflict
with any laws, administrative regulation or ruling or court decree
applicable to the Selling Shareholder or property of the Selling
Shareholder.
(f) Such parts of the Registration Statement under the caption
"Principal and Selling Shareholders" which specifically relate to the
Selling Shareholder do not, and will not on the Closing Date (and any
Option Closing Date, if applicable), contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of
circumstances under which they were made, not misleading.
(g) At any time during the period described in paragraph 5(e)
hereof, if there is any change in the information referred to in
paragraph 7(f) above, except as contemplated in the Prospectus, the
Selling Shareholder will immediately notify you of such change.
(h) To the best knowledge of the Selling Shareholder, the
representations and warranties of the Company contained in Section 6
hereof are true and correct; the Selling Shareholder has reviewed and is
familiar with the Registration Statement as filed with the Commission
and any preliminary prospectuses contained therein and has no knowledge
of any material fact, condition or information not disclosed in such
preliminary prospectus which has adversely affected or could adversely
affect the condition, financial or otherwise, or the earnings, business
affairs, or business prospects of the Company and its subsidiaries
considered as one enterprise; to the best knowledge of the Selling
Shareholder, such preliminary prospectuses do not contain any untrue
statement of a material fact or omit to state any material fact
necessary to make the statements therein not misleading.
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8. Indemnification. (a) The Company and the Selling
Shareholder, jointly and severally, agree to indemnify and hold harmless each
Underwriter, its directors, its officers and each person, if any, who controls
any Underwriter within the meaning of Section 15 of the Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages,
liabilities and judgments (including, without limitation, any reasonable legal
or other expenses incurred in connection with investigating or defending any
matter, including any action, that could give rise to any such losses, claims,
damages, liabilities or judgments) caused by any untrue statement or alleged
untrue statement of a material fact contained in the Registration Statement or
the Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto) or any preliminary prospectus, or caused
by any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
judgments are caused by any such untrue statement or omission or alleged untrue
statement or omission based upon information relating to any Underwriters
furnished in writing to the Company by or on behalf of such Underwriter through
you expressly for use therein; provided, however, that the foregoing indemnity
agreement with respect to any preliminary prospectus shall not inure to the
benefit of any Underwriters who failed to deliver a Prospectus (as then amended
or supplemented, provided by the Company to the several Underwriters in the
requisite quantity and on a timely basis to permit proper delivery on or prior
to the Closing Date) to the person asserting any losses, claims, damages and
liabilities and judgments caused by any untrue statement or alleged untrue
statement of a material fact contained in any preliminary prospectus, or caused
by any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, if such material misstatement or omission or alleged material
misstatement or omission was cured in such Prospectus and such Prospectus was
required by law to be delivered at or prior to the written confirmation of sale
to such person. Notwithstanding the foregoing, the aggregate liability of the
Selling Shareholder pursuant to this Section 8(a) shall be limited to an amount
equal to the total proceeds (before deducting underwriting discounts and
commissions and expenses) received by the Selling Shareholder from the
Underwriters for the sale of the Selling Shareholder's Shares hereunder. The
Company and the Selling Shareholder may agree as between themselves and without
limiting the rights of the Underwriters under this Agreement as to the
respective amount of such liability for which each of them will be responsible.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who sign
the Registration Statement, each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
the Selling Shareholder and each person, if any, who controls such Selling
Shareholder within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act to the same extent as the foregoing indemnity from the Company and
the Selling Shareholder to such Underwriter but only with reference to
information relating to such Underwriter furnished in writing to the Company by
such Underwriter through you expressly for use in the Registration Statement,
the Prospectus or any preliminary prospectus.
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(c) In case any action shall be commenced involving any person
in respect of which indemnity may be sought pursuant to Section 8(a) or 8(b)
(the "indemnified party"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "indemnifying party") in
writing and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 8(a) and 8(b), the Underwriter shall not be
required to assume the defense of such action pursuant to this Section 8(c),
but may employ separate counsel and participate in the defense thereof, but the
fees and expenses of such counsel, except as provided below, shall be at the
expense of such Underwriter). Any indemnified party shall have the right to
employ separate counsel in any such action and participate in the defense
thereof, but the fees and expenses of such counsel shall be at the expense of
the indemnified party unless (i) the employment of such counsel shall have been
specifically authorized in writing by the indemnifying party, (ii) the
indemnifying party shall have failed to assume the defense of such action or
employ counsel reasonably satisfactory to the indemnified party within a
reasonably prompt period following the receipt of notification in writing from
the indemnified parties or (iii) the named parties to any such action
(including any impleaded parties) include both the indemnified party and the
indemnifying party, and the indemnified party shall have been advised by such
counsel that there may be one or more legal defenses available to it which are
different from or additional to those available to the indemnifying party (in
which case the indemnifying party shall not have the right to assume the
defense of such action on behalf of the indemnified party). In any such case,
the indemnifying party shall not, in connection with any one action or separate
but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for (i) the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all Underwriters, their officers and
directors and all persons, if any, who control any Underwriter within the
meaning of either Section 15 of the Act or Section 20 of the Exchange Act, (ii)
the reasonable fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) for the Company, its directors, its officers
who sign the Registration Statement and all persons, if any, who control the
Company within the meaning of either such Section and (iii) the reasonable fees
and expenses of more than one separate firm of attorneys (in addition to any
local counsel) for the Selling Shareholder and all persons, if any, who control
the Selling Shareholder within the meaning of either such Section, and all such
reasonable fees and expenses shall be reimbursed as they are incurred. In the
case of any such separate firm for the Underwriters, their officers and
directors and such control persons of any Underwriters, such firm shall be
designated in writing by Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation.
In the case of any such separate firm for the Company and such directors,
officers and control persons of the Company, such firm shall be designated in
writing by the Company. In the case of any such separate firm for the Selling
Shareholder and such control persons of the Selling Shareholder, such firm
shall be designated in writing by the Selling Shareholder. The indemnifying
party shall indemnify and hold harmless the indemnified party from and against
any and all losses, claims, damages, liabilities and judgments by reason of any
settlement of any action (i) effected with its written consent or (ii)
-15-
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effected without its written consent if the settlement is entered into more
than twenty business days after the indemnifying party shall have received a
request from the indemnified party for reimbursement for the fees and expenses
of counsel (in any case where such fees and expenses are at the expense of the
indemnifying party) and, prior to the date of such settlement, the indemnifying
party shall have failed to comply with such reimbursement request. No
indemnifying party shall, without the prior written consent of the indemnified
party (provided that (a) in the case of indemnity sought pursuant to Section
8(a), such consent may be given on behalf of the indemnified parties by
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, and (b) in the case of
indemnity sought pursuant to Section 8(b), such consent may be given on behalf
of the indemnified parties by the Company), effect any settlement or compromise
of, or consent to the entry of judgment with respect to, any pending or
threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from
all liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party. No
indemnifying party will be liable for the costs and expenses of any settlement
of any pending or threatened action effected by the indemnified party without
the consent of the indemnifying party.
(d) To the extent the indemnification provided for in this
Section 8 is unavailable to an indemnified party or insufficient in respect of
any losses, claims, damages, liabilities or judgments referred to therein, then
each indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Shareholder on the one hand and the Underwriters on the
other hand from the offering of the Shares or (ii) if the allocation provided
by clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause
(i) above but also the relative fault of the Company and the Selling
Shareholder and the Underwriters in connection with the statements or omissions
which resulted in such losses, claims, damages, liabilities or judgments, as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Shareholder and the Underwriters shall
be deemed to be in the same proportion as the total net proceeds from the
offering (after deducting underwriting discounts and commissions, but before
deducting expenses) received by the Company and the Selling Shareholder, and
the total underwriting discounts and commissions received by the Underwriters,
bear to the total price to the public of the Shares, in each case as set forth
in the table on the cover page of the Prospectus. The relative fault of the
Company and the Selling Shareholder and 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 to state a material fact relates
to information supplied by the Company, the Selling Shareholder or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
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The Company, the Selling Shareholder and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this
Section 8(d) were determined by pro rata allocation (even if the Underwriters
were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred
to in the immediately preceding paragraph. The amount paid or payable by an
indemnified party as a result of the losses, claims, damages, liabilities or
judgments referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 8, no Underwriter shall be required to contribute
any amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. 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. The Underwriters' obligations to contribute pursuant to
this Section 8(d) are several in proportion to the respective number of Shares
purchased by each of the Underwriters hereunder and not joint. The obligations
of the Selling Shareholder to contribute to this Section 8(d) shall be subject
to the limitation contained in paragraph 8(a) above with respect to the maximum
aggregate liability of the Selling Shareholder under or in connection with this
Agreement.
(e) The remedies provided for in this Section 8 are not
exclusive and shall not limit any rights or remedies which may otherwise be
available to any indemnified party at law or in equity.
(f) The Selling Shareholder hereby designates Eagle USA
Airfreight, Inc., a Texas corporation, 0000 Xxxxxxxx, Xxxxxxx, Xxxxx 00000, as
its authorized agent, upon which process may be served in any action, suit or
proceeding which may be instituted in any state or federal court in the State
of New York by any Underwriter, any director or officer of any Underwriter or
any person controlling an Underwriter asserting a claim for indemnification or
contribution under or pursuant to this Section 8, and the Selling Shareholder
and the Company will accept the jurisdiction of such court in such action, and
waive, to the fullest extent permitted by applicable law, any defense based
upon lack of personal jurisdiction or venue. A copy of any such process shall
be sent or given to the Company and/or the Selling Shareholder, as appropriate,
at the address for notices specified in Section 12 hereof.
9. Conditions of Underwriters' Obligations. The several obligations
of the Underwriters to purchase the Firm Shares under this Agreement are
subject to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company
contained in this Agreement shall be true and correct on the Closing
Date with the same force and effect as if made on and as of the Closing
Date.
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(b) The Registration Statement shall have become effective not
later than 5:00 P.M. (and in the case of a Registration Statement filed
under Rule 462(b) of the Act, not later than 10:00 P.M.), New York City
time, on the date of this Agreement or at such later date and time as
you may approve in writing, and at the Closing Date no stop order
suspending the effectiveness of the Registration Statement shall have
been issued and no proceedings for that purpose shall have been
commenced or shall be pending before or contemplated by the Commission.
(c) (i) Since the date of the latest balance sheet included in
the Registration Statement and the Prospectus, there shall not have been
any material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or in
the earnings except as disclosed in the Prospectus, affairs, business or
prospects, whether or not arising in the ordinary course of business, of
the Company, (ii) except as disclosed in the Prospectus, since the date
of the latest balance sheet included in the Registration Statement and
the Prospectus there shall not have been any change, or any development
involving a prospective material adverse change, in the capital stock or
in the long-term debt of the Company from that set forth in the
Registration Statement and Prospectus, (iii) the Company and its
subsidiaries shall have no liability or obligation, direct or
contingent, which is material to the Company and its subsidiaries, taken
as a whole, other than those reflected in the Registration Statement and
the Prospectus and (iv) on the Closing Date you shall have received a
certificate dated the Closing Date, signed by Xxxxx X. Xxxxx and Xxxxxxx
X. Xxxxxx, in their capacities as the President and Secretary of the
Company, confirming the matters set forth in paragraphs (a), (b), and
(c) of this Section 9.
(d) All the representations and warranties of the Selling
Shareholder contained in this Agreement shall be true and correct on the
Closing Date with the same force and effect as if made on and as of the
Closing Date and you shall have received a certificate to such effect,
dated the Closing Date, from the Selling Shareholder.
(e) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the
Closing Date, of Xxxxx & Xxxxx, L.L.P., counsel for the Company and the
Selling Shareholder, to the effect that:
(i) the Company and each of Eagle Freight Services,
Inc., a Texas corporation, and Eagle USA Transportation Services,
Inc., a Texas corporation (collectively, the "Texas
Subsidiaries"), has been duly incorporated, is validly existing
as a corporation in good standing under the laws of its
jurisdiction of incorporation and has all corporate power and
authority required to carry on its business as described in the
Prospectus;
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(ii) all of the outstanding shares of capital stock of,
or other ownership interests in, each of the Texas Subsidiaries
have been duly and validly authorized and issued and are fully
paid and non-assessable;
(iii) all the outstanding shares of Common Stock
(including the Shares to be sold by the Selling Shareholder) have
been duly authorized and validly issued and are fully paid, non-
assessable and to such counsel's knowledge, none of the
outstanding shares of Common Stock (including the Shares to be
sold by the Selling Shareholder) were issued in violation of or
subject to any preemptive rights or other similar rights to
subscribe for or purchase the same;
(iv) the Additional Shares, if any, to be issued and
sold by the Company hereunder have been duly authorized, and when
issued and delivered to the Underwriters against payment therefor
as provided by this Agreement, will have been validly issued and
will be fully paid and non-assessable, and the issuance of such
shares is not subject to any preemptive rights or other similar
rights to subscribe for or purchase the same;
(v) this Agreement has been duly authorized, executed
and delivered by each of the Company and the Selling Shareholder
and is a valid and binding agreement of each of the Company and
the Selling Shareholder enforceable in accordance with its terms
(except as rights to indemnity and contribution hereunder may be
limited by applicable law or public policy grounds, and except as
enforcement (i) may be limited by bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights
generally and (ii) is subject to general principles of equity and
public policy (regardless of whether such enforceability is
considered in a proceeding in equity or at law);
(vi) the Registration Statement has become effective
under the Act, and to such counsel's knowledge no stop order
suspending its effectiveness has been issued and no proceedings
for that purpose have been instituted or threatened by the
Commission;
(vii) the statements under the caption "Description of
Capital Stock" in the Prospectus and Item 15 of Part II of the
Registration Statement insofar as such statements constitute a
summary of documents or proceedings referred to therein, fairly
present in all material respects the information called for with
respect to such documents and proceedings;
(viii) the execution, delivery and performance of this
Agreement by the Company, compliance by the Company with all the
provisions hereof and the consummation by the Company of the
transactions contemplated hereby (i) will not require any
consent, approval, authorization or other order of any court,
regulatory
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body, administrative agency or other governmental body of the
United States of America or the State of Texas or, except for any
such consent, approval, authorization, or order, which, if not
obtained, would not prevent or adversely affect in any material
respect the performance of this Agreement or have a material
adverse effect on the Company and its subsidiaries, taken as a
whole, and except for such as have been made or obtained under
the Act and the Exchange Act and such as may be required under
applicable Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters and the clearance
of such offering with the NASD and (ii) will not conflict with or
constitute a breach of any of the terms or provisions of, or a
default under, (A) the charter or by-laws of the Company or any
of the Texas Subsidiaries and Eagle Freight Services, Inc., a
California corporation, or to such counsel's knowledge, any
agreement, indenture or other instrument to which the Company or
any of its subsidiaries is a party or by which the Company or any
of its subsidiaries or their respective properties are bound,
that is filed as an exhibit to the Registration Statement or
(iii) violate or conflict with any federal securities laws or, to
such counsel's knowledge, any other existing laws, administrative
regulations or rulings or court decrees of the United States of
America or the State of Texas which rulings or decrees
specifically name the Company or are directed at its property
(provided, however, that such counsel need express no opinion
with respect to compliance with any federal or state securities
or antifraud law, rule or regulation except as otherwise
specifically stated in the opinion of such counsel), except for
any such violation, breach or conflict referred to in clause (ii)
or (iii) above which would not prevent or adversely affect in any
material respect the performance of this Agreement or have a
material adverse effect on the Company and its subsidiaries,
taken as a whole;
(ix) the execution, delivery and performance of this
Agreement by the Selling Shareholder, compliance by the Selling
Shareholder with the provisions hereof and the consummation of
the transactions contemplated hereby (i) will not to such
counsel's knowledge require any consent, approval, authorization
or other order of any court, regulatory body, administrative
agency or other governmental body of the United States of America
or the State of Texas or, except for any such consent, approval,
authorization, or order, which, if not obtained, would not
prevent or adversely affect in any material respect the
performance of this Agreement or have a material adverse effect
on the Company and its subsidiaries, taken as a whole, and except
for such as have been made or obtained under the Act and the
Exchange Act and such as may be required under applicable Blue
Sky laws in connection with the purchase and distribution of the
Shares by the Underwriters and the clearance of such offering
with the NASD and (ii) will not conflict with or constitute a
breach of any of the terms or provisions of, or a default under,
(A) to such counsel's knowledge, any agreement, indenture or
other instrument to which the Selling Shareholder is a party or
by which the Selling Shareholder or his properties are bound,
that is filed as an exhibit to the Registration Statement or
(iii)
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violate or conflict with, to such counsel's knowledge, any
existing laws, administrative regulations or rulings or court
decrees of the United States of America or the State of Texas
which rulings or decrees specifically name the Selling
Shareholder or are directed at his property, except for any such
violation, breach or conflict referred to in clause (ii) or (iii)
above which would not prevent or adversely affect in any material
respect the performance of this Agreement by the Selling
Shareholder;
(x) the Selling Shareholder is the sole record owner of
the Shares to be sold by such Selling Shareholder under this
Agreement; upon delivery of the Shares to be sold by the Selling
Shareholder under this Agreement and payment of the purchase
price therefor as contemplated by this Agreement, assuming the
Underwriters have purchased the Shares for value in good faith
and without notice of any adverse claim or actual knowledge of a
restriction on transfer, the Underwriters will have acquired all
rights of such Selling Shareholder in the Shares free of any
adverse claim, any lien in favor of the Company and any
restrictions on transfer imposed by the Company. The owner of
the Shares, if other than such Selling Shareholder, is precluded
from asserting against the Underwriters the ineffectiveness of
any unauthorized endorsement or instruction, assuming the
Underwriters purchased the Shares for value in good faith and
without notice of any adverse claim;
(xi) such counsel does not know of any legal or
governmental proceeding pending or threatened to which the
Company or any of its subsidiaries is a party or to which any of
their respective property is subject which is required to be
described in the Registration Statement or the Prospectus and is
not so described, or of any contract or other document which is
required to be described in the Registration Statement or the
Prospectus or is required to be filed as an exhibit to the
Registration Statement which is not described or filed as
required;
(xii) the Company is not an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended;
(xiii) to the best of such counsel's knowledge, after due
inquiry, no holder of any security of the Company other than the
Selling Shareholder has any right to require registration in the
Registration Statement of shares of Common Stock or any other
security of the Company that has not been waived; and
(xiv) the Registration Statement (including any
Registration Statement filed under Rule 462(b) of the Act, if
any) and the Prospectus and any supplement or amendment thereto
(except for (i) the financial statements and schedules (including
the notes thereto and the auditors' reports thereon) included
therein, (ii) the other
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financial and statistical information included therein and (iii)
the exhibits thereto as to which no opinion need be expressed)
comply as to form in all material respects with the Act.
In rendering such opinion, such counsel may rely as to matters of
fact on certificates of officers of the Company, the Selling Shareholder and of
governmental officials, in which case their opinion is to state that they are
so doing. Such counsel shall also be entitled to state that its opinion is
limited to the laws of the United States of America and the State of Texas.
Such counsel shall also include, in a separate paragraph of its
opinion, statements to the following effect: Such counsel has participated in
conferences with officers and other representatives of the Company, the Selling
Shareholder, representatives of the independent public accountants of the
Company and your representatives at which the contents of the Registration
Statement and Prospectus and related matters were discussed. Although such
counsel is not passing upon, and does not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Prospectus, such counsel advises you that, on
the basis of the foregoing (relying as to materiality to a large extent upon
officers and other representatives of the Company and your representatives), no
facts have come to the attention of such counsel which lead such counsel to
believe that the Registration Statement (other than (i) the financial
statements and schedules (including the notes thereto and the auditors' reports
thereon) included therein, (ii) the other financial and statistical information
included therein and (iii) the exhibits thereto, as to which such counsel has
not been asked to comment), as of the time it became effective, contained any
untrue statement of a material fact or omitted to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading or that the Prospectus (other than (i) the financial statements
(including the notes thereto and the auditors' report thereon) including
therein and (ii) the other financial and statistical information included
therein, as to which such counsel has not been asked to comment), as of issue
date thereof, contained any untrue statement of a material fact or omitted or
omits to state any 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.
The opinion of Xxxxx & Xxxxx, L.L.P. described in paragraph (e) above
shall be rendered to you at the request of the Company and the Selling
Shareholder and shall so state therein.
(f) You shall have received on the Closing Date an opinion,
dated the Closing Date, of Xxxxxxxx & Knight, P.C., counsel for the
Underwriters, as to the matters referred to in clauses (v), (vi) (but
only with respect to the Company), (vii) and (viii) (but only with
respect to the statements under the captions "Description of Capital
Stock" and "Underwriting") and in the second to last subparagraph of the
foregoing paragraph (e). In giving such opinion with respect to the
matters covered by such subparagraph such counsel may state that their
opinion and belief are based upon their participation in the preparation
of the Registration Statement and Prospectus and any amendments or
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supplements thereto and review and discussion of the contents thereof,
but are without independent check or verification except as specified.
(g) You shall have received a letter on and as of the Closing
Date, in form and substance satisfactory to you, from Price Waterhouse,
independent public accountants, with respect to the financial statements
and certain financial information contained in the Registration
Statement and the Prospectus and substantially in the form and substance
of the letter delivered to you by Price Waterhouse on the date of this
Agreement.
(h) The Company and the Selling Shareholder shall not have
failed at or prior to the Closing Date to perform or comply with any of
the agreements herein contained and required to be performed or complied
with by the Company at or prior to the Closing Date.
The several obligations of the Underwriters to purchase any Additional Shares
hereunder are subject to the delivery to you on the applicable Option Closing
Date of such documents as you may reasonably request with respect to the good
standing of the Company, the due authorization and issuance of such Additional
Shares and other matters related to the issuance of such Additional Shares.
10. Effective Date of Agreement and Termination. This Agreement
shall become effective upon the execution and delivery of this Agreement by the
parties hereto.
This Agreement may be terminated at any time on or prior to the Closing
Date by you by written notice to the Company and the Selling Shareholder if any
of the following has occurred: (i) since the respective dates as of which
information is given in the Registration Statement and the Prospectus, except
as disclosed in the Prospectus, any adverse change or development involving a
prospective adverse change in the condition, financial or otherwise, of the
Company and its subsidiaries taken as a whole or the earnings, affairs, or
business prospects of the Company and its subsidiaries taken as a whole,
whether or not arising in the ordinary course of business, which would, in your
judgment, make it impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus, (ii) any outbreak or escalation of
hostilities or other national or international calamity or crisis or change in
economic conditions or in the financial markets of the United States or
elsewhere that, in your judgment, is material and adverse and, in your
judgment, makes it impracticable to market the Shares on the terms and in the
manner contemplated in the Prospectus, (iii) the suspension or material
limitation of trading in securities or other instruments on the New York Stock
Exchange, the American Stock Exchange, the Chicago Board of Options Exchange,
the Chicago Mercantile Exchange, the Chicago Board of Trade or the Nasdaq
National Market or limitation on prices for securities or other instruments on
any such exchange or the Nasdaq National Market, (iv) the suspension of trading
of any securities of the Company on any exchange or in the over-the-counter
market, (v) the enactment, publication, decree or other promulgation of any
federal or state statute, regulation, rule or order of any court or other
governmental authority which in your opinion materially and adversely
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affects, or will materially and adversely affect, the business, financial
condition or results of operations of the Company and its Subsidiaries, taken
as a whole, (v) the declaration of a banking moratorium by either federal or
New York State authorities or (vi) the taking of any action by any federal,
state or local government or agency in respect of its monetary or fiscal
affairs which in your opinion has a material adverse effect on the financial
markets in the United States.
If on the Closing Date or on the applicable Option Closing Date, as the
case may be, any one or more of the Underwriters shall fail or refuse to
purchase the Firm Shares or Additional Shares, as the case may be, which it has
or they have agreed to purchase hereunder on such date and the aggregate number
of Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused
to purchase is not more than one-tenth of the total number of Shares to be
purchased on such date by all Underwriters, each non-defaulting Underwriter
shall be obligated severally, in the proportion which the number of Firm Shares
set forth opposite its name in Schedule I bears to the total number of Firm
Shares which all the non-defaulting Underwriters, as the case may be, have
agreed to purchase, or in such other proportion as you may specify, to purchase
the Firm Shares or Additional Shares, as the case may be, which such defaulting
Underwriter or Underwriters, as the case may be, agreed but failed or refused
to purchase on such date; provided that in no event shall the number of Firm
Shares or Additional Shares, as the case may be, which any Underwriter has
agreed to purchase pursuant to Section 2 hereof be increased pursuant to this
Section 10 by an amount in excess of one-ninth of such number of Firm Shares or
Additional Shares, as the case may be, without the written consent of such
Underwriter. If on the Closing Date or on an Option Closing Date, as the case
may be, any Underwriter or Underwriters shall fail or refuse to purchase Firm
Shares, or Additional Shares, as the case may be, and the aggregate number of
Firm Shares or Additional Shares, as the case may be, with respect to which
such default occurs is more than one-tenth of the aggregate number of Shares to
be purchased on such date by all Underwriters and arrangements satisfactory to
you and the Company for purchase of such Shares are not made within 48 hours
after such default, this Agreement will terminate without liability on the part
of any non-defaulting Underwriter and the Company and the Selling Shareholder.
In any such case which does not result in termination of this Agreement, either
you, the Company or the Selling Shareholder shall have the right to postpone
the Closing Date or the applicable Option Closing Date, as the case may be, but
in no event for longer than seven days, in order that the required changes, if
any, in the Registration Statement and the Prospectus or any other documents or
arrangements may be effected. Any action taken under this paragraph shall not
relieve any defaulting Underwriter from liability in respect of any default of
any such Underwriter under this Agreement.
11. Agreements of the Selling Shareholder. The Selling Shareholder
agrees with you and the Company:
(a) To pay or to cause to be paid all transfer taxes with
respect to the Shares to be sold by the Selling Shareholder (provided,
however, that you shall pay the New York State stock transfer tax, and
if you have promptly and properly filed all necessary notices
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and reports with respect thereto to obtain a rebate for such tax
payment, the Sellers shall reimburse you for associated carrying costs
if such tax payment is not rebated on the date of payment and for any
portion of such tax payment not rebated); and
(b) To take all commercially reasonable actions in cooperation
with the Company and the Underwriters to cause the Registration
Statement to become effective at the earliest possible time and to do
and perform all things required by this Agreement to be done and
performed by them under this Agreement prior to the Closing Date.
12. Miscellaneous. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Company, to Eagle USA
Airfreight, Inc., 0000 Xxxxxxxx, Xxxxxxx, Xxxxx 00000, (b) if to the Selling
Shareholder, to Xxxxx X. Xxxxx, c/o Eagle USA Airfreight, Inc., 0000 Xxxxxxxx,
Xxxxxxx, Xxxxx 00000, and (c) if to any Underwriter or to you, to you c/x
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Syndicate Department, or in any case to such other
address as the person to be notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Selling Shareholder, the Company, its
officers and directors and of the several Underwriters set forth in or made
pursuant to this Agreement shall remain operative and in full force and effect,
and will survive delivery of and payment for the Shares, regardless of (i) any
investigation, or statement as to the results thereof, made by or on behalf of
any Underwriter or by or on behalf of the Selling Shareholder, the Company, the
officers or directors of the Company or any controlling person of the Company,
(ii) acceptance of the Shares and payment for them hereunder and (iii)
termination of this Agreement.
If this Agreement shall be terminated by the Underwriters (other than
pursuant to Section 10 (ii), (iii) and (iv)) because of any failure or refusal
on the part of the Company or the Selling Shareholder to comply with the terms
or to fulfill any of the conditions of this Agreement, the Company and the
Selling Shareholder agree, jointly and severally, to reimburse the several
Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel) reasonably incurred by them in connection with the
proposed offering of the Shares. Notwithstanding any termination of this
Agreement, the Company shall be liable for all expenses which it has agreed to
pay pursuant to Section 5(k) hereof. The Sellers also agree, jointly and
severally, to reimburse the several Underwriters, their directors and officers
and any persons controlling any of the Underwriters for any and all fees and
expenses (including, without limitation, the fees disbursements of counsel)
incurred by them in connection with enforcing their rights hereunder
(including, without limitation, pursuant to Section 8 hereof) to the extent
such persons are found by a nonappealable order of a court of competent
jurisdiction to be successful on their claim as to which such expenses relate.
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon the Selling Shareholder, the
Company, the Underwriters, any
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controlling persons referred to herein, the Company's directors and the
Company's officers who sign the Registration Statement and their respective
successors and assigns, all as and to the extent provided in this Agreement,
and no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include a purchaser of
any of the Shares from any of the several Underwriters merely because of such
purchase.
THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE CHOICE OF LAWS
PROVISIONS THEREOF.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
Please confirm that the foregoing correctly sets forth the agreement
among the Company, the Selling Shareholder and the several Underwriters.
Very truly yours,
EAGLE USA AIRFREIGHT, INC.
By:
---------------------------
Title:
SELLING SHAREHOLDER
--------------------------------
Xxxxx X. Xxxxx
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
XXXXXX XXXXXXX & CO. INCORPORATED
XXXXXXX XXXXX & COMPANY, L.L.C.
XXXXXX XXXXXX XXXXXXXX & CO., INC.
Acting severally on behalf of themselves and
the several Underwriters named in Schedule I thereto
By: XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By: _________________________________
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SCHEDULE I
NUMBER OF
FIRM SHARES
Underwriters TO BE PURCHASED
------------ ---------------
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
Xxxxxx Xxxxxxx Xxxx Xxxxxx
Xxxxxxx Xxxxx & Company
Xxxxxx Xxxxxx Xxxxxxxx & Co., Inc.
----------
Total 1,500,000
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SCHEDULE II
SELLING SHAREHOLDER
Number of
Firm Shares
Name Being Sold
---- ----------
Xxxxx X. Xxxxx 1,500,000
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