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DRAFT OF 8-27-97
UNIFAB INTERNATIONAL, INC.
(A LOUISIANA CORPORATION)
COMMON STOCK
UNDERWRITING AGREEMENT
DATED: SEPTEMBER __, 1997
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UNIFAB INTERNATIONAL, INC.
UNDERWRITING AGREEMENT
September __, 1997
▇▇▇▇▇▇ ▇▇▇▇▇▇ & COMPANY, INC.
▇▇▇▇▇▇▇▇ INC.
As Representatives of the Several
Underwriters Named in Schedule A hereto
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
UNIFAB International, Inc., a Louisiana corporation (the "Company"), proposes
to issue and sell to the underwriters named in Schedule A (collectively, the
"Underwriters") an aggregate of 1,100,000 shares of Common Stock, $0.01 par
value per share (the "Common Stock"), of the Company (the "Firm Company
Shares"), and ▇▇▇▇▇▇▇▇▇ Incorporated, a Delaware corporation (the "Selling
Shareholder") proposes to sell to the Underwriters an aggregate of 1,715,000
shares of Common Stock (the "Firm Selling Shareholder Shares" and, together
with the Firm Company Shares, the "Firm Shares"). The Firm Shares are to be
sold to each Underwriter, acting severally and not jointly, in such amounts as
are set forth in Schedule A opposite the name of such Underwriter.
The Company also grants to the Underwriters, severally and not jointly, the
option described in Section 4 to purchase, on the same terms as the Firm
Shares, up to 422,250 additional shares of Common Stock (the "Option Shares")
solely to cover over-allotments. The Firm Shares, together with all or any
part of the Option Shares, are collectively herein called the "Shares."
Section 1. Representations and Warranties of the Sellers. The
Company and Universal Fabricators Incorporated, a Delaware corporation
("Universal Fabricators" and, together with the Company, the "Sellers"),
represent and warrant to and agree with each of the Underwriters that:
a. A registration statement on Form S-1 (File No. 333-31609)
with respect to the Shares, including a preliminary form of prospectus,
has been prepared by the Company in conformity with the requirements of
the Securities Act of 1933, as amended (the "1933 Act"), and the
applicable rules and regulations (the "1933 Act Regulations") of the
Securities and Exchange Commission (the "Commission"), and has been filed
with the Commission; and such amendments to such registration statement
as may have been required prior to the date hereof have been filed with
the Commission, and such amendments have been similarly prepared. Copies
of such registration statement and amendment or amendments and of each
related preliminary prospectus, and the exhibits, financial statements
and schedules, as finally
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amended and revised, have been delivered to you. The Company has
prepared in the same manner, and proposes so to file with the Commission,
one of the following: (i) prior to effectiveness of such registration
statement, a further amendment thereto, including the form of final
prospectus, (ii) if the Company does not rely on Rule 434 of the 1933 Act
Regulations, a final prospectus in accordance with Rules 430A and 424(b)
of the 1933 Act Regulations, or (iii) if the Company relies on Rule 434
of the 1933 Act Regulations, a term sheet relating to the Shares that
shall identify the preliminary prospectus that it supplements containing
such information as is required or permitted by Rules 434, 430A and
424(b) of the 1933 Act Regulations. The Company also may file a related
registration statement with the Commission pursuant to Rule 462(b) of the
1933 Act Regulations for the purpose of registering certain additional
shares of Common Stock, which registration statement will be effective
upon filing with the Commission. As filed, such amendment, any
registration statement filed pursuant to Rule 462(b) of the 1933 Act
Regulations and any term sheet and form of final prospectus, or such
final prospectus, shall include all Rule 430A Information (as defined
below) and, except to the extent that you shall agree in writing to a
modification, shall be in all respects in the form furnished to you prior
to the date and time that this Agreement was executed and delivered by
the parties hereto, or, to the extent not completed at such date and
time, shall contain only such specific additional information and other
changes (beyond that contained in the latest preliminary prospectus and
in addition to the Rule 430A Information) as the Company shall have
previously advised you in writing would be included or made therein.
The term "Registration Statement" as used in this Agreement shall
mean such registration statement at the time such registration statement
becomes effective and, in the event any post-effective amendment thereto
becomes effective prior to the Closing Time (as hereinafter defined),
shall also mean such registration statement as so amended; provided,
however, that such term shall also include all Rule 430A Information
contained in any Prospectus and any Term Sheet (as hereinafter defined)
and deemed to be included in such registration statement at the time such
registration statement becomes effective as provided by Rule 430A of the
1933 Act Regulations. The term "Preliminary Prospectus" shall mean any
preliminary prospectus referred to in the preceding paragraph and any
preliminary prospectus included in the Registration Statement at the time
it becomes effective that omits Rule 430A Information. The term
"Prospectus" as used in this Agreement shall mean (a) if the Company
relies on Rule 434 of the 1933 Act Regulations, the Term Sheet relating
to the Shares that is first filed pursuant to Rule 424(b)(7) of the 1933
Act Regulations, together with the Preliminary Prospectus identified
therein that such Term Sheet supplements or (b) if the Company does not
rely on Rule 434 of the 1933 Act Regulations, the prospectus relating to
the Shares in the form in which it is first filed with the Commission
pursuant to Rule 424(b) of the 1933 Act Regulations or, if no filing
pursuant to Rule 424(b) of the 1933 Act Regulations is required, shall
mean the form of final prospectus included in the Registration Statement
at the time such Registration Statement becomes effective. The term
"Rule 430A Information" means information with respect to the Shares and
the offering thereof permitted pursuant to Rule 430A of the 1933 Act
Regulations to be omitted from the Registration Statement when it becomes
effective. The term "462(b) Registration Statement" means any
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registration statement filed with the Commission pursuant to Rule 462(b)
of the 1933 Act Regulations (including the Registration Statement and any
Preliminary Prospectus or Prospectus incorporated therein at the time
such registration statement becomes effective). The term "Term Sheet"
means any term sheet that satisfies the requirements of Rule 434 of the
1933 Act Regulations. Any reference to the "date" of a Prospectus that
includes a Term Sheet shall mean the date of such Term Sheet.
b. No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and no
proceedings for that purpose have been instituted or threatened by the
Commission or the state securities or blue sky authority of any
jurisdiction, and each Preliminary Prospectus and any amendment or
supplement thereto, at the time of filing thereof, conformed in all
material respects to the requirements of the 1933 Act and the 1933 Act
Regulations, and did 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, in light of the circumstances
under which they were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter or the Selling
Shareholder expressly for use in the Registration Statement or any 462(b)
Registration Statement.
c. When the Registration Statement and any 462(b)
Registration Statement shall become effective, or any Term Sheet that is
part of the Prospectus is filed with the Commission pursuant to Rule 434,
when the Prospectus is first filed pursuant to Rule 424(b) of the 1933
Act Regulations, when any amendment to the Registration Statement or any
462(b) Registration Statement becomes effective, and when any supplement
to the Prospectus or any Term Sheet is filed with the Commission and at
the Closing Time and Date of Delivery (as hereinafter defined), (i) the
Registration Statement, the 462(b) Registration Statement, the
Prospectus, the Term Sheet and any amendments thereof and supplements
thereto will conform in all material respects with the applicable
requirements of the 1933 Act and the 1933 Act Regulations, and (ii)
neither the Registration Statement, the 462(b) Registration Statement,
the Prospectus, any Term Sheet nor any amendment or supplement thereto
will contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or
omissions made in reliance upon and in conformity with information
furnished in writing to the Company by an Underwriter or the Selling
Shareholder expressly for use in the Registration Statement or any 462(b)
Registration Statement.
d. The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the state of
Louisiana with all requisite corporate power and authority to own, lease
and operate its properties and to conduct its business as described in
the Registration Statement and the Prospectus, in each case after giving
effect to the transactions contemplated by that certain Transition
Agreement dated
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August ______, 1997 by and among the Company, Universal Partners, Inc.,
Universal Fabricators Incorporated, the Selling Shareholder and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ (the "Transition Agreement"). The Company is duly qualified to
transact business as a foreign corporation and is in good standing in
each of the jurisdictions in which the ownership or leasing of its
properties or the nature or conduct of its business as described in the
Registration Statement and the Prospectus, after giving effect to the
transactions contemplated by the Registration Statement and the
Prospectus, requires such qualification, except where the failure to do
so would not have a material adverse effect on the condition (financial
or other), business, properties, net worth or results of operations of
the Company and the Subsidiaries (as hereinafter defined) taken as a
whole.
e. All of the Company's subsidiaries, including the
corporations that will become subsidiaries upon consummation of the
transactions contemplated by the Transition Agreement, are named on an
exhibit to the Registration Statement (each a "Subsidiary" and
collectively the "Subsidiaries"). Each of the Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the state of its incorporation with all requisite
corporate power and authority to own, lease and operate its properties
and conduct its business as described in the Registration Statement and
the Prospectus. Each such entity is duly qualified to do business and is
in good standing as a foreign corporation in each other jurisdiction in
which the ownership or leasing of its properties or the nature or conduct
of its business as described in the Registration Statement and the
Prospectus conducted requires such qualification, except where the
failure to do so would not have a material adverse effect on the
condition (financial or other), business, properties, net worth or
results of operations of such Subsidiaries.
f. The Sellers have full corporate right, power and authority
to enter into this Agreement and the Transition Agreement and to
consummate the transactions contemplated by this Agreement and the
Transition Agreement, and the Company has full corporate right, power and
authority to issue, sell and deliver the Shares as provided herein. This
Agreement has been duly authorized, executed and delivered by the Sellers
and constitutes a valid and binding agreement of the Sellers, enforceable
in accordance with its terms, except to the extent that enforceability
may be limited by bankruptcy, insolvency, moratorium, reorganization or
other laws of general applicability relating to or affecting creditors'
rights, or by general principles of equity whether considered at law or
at equity and except to the extent enforcement of the indemnification
provisions set forth in Section 8 of this Agreement may be limited by
federal or state securities laws or the public policy underlying such
laws. The Transition Agreement has been duly authorized, executed and
delivered by the Sellers and constitutes a valid and binding agreement of
each of the Sellers, enforceable in accordance with its terms, except to
the extent that enforceability may be limited by bankruptcy, insolvency,
moratorium, reorganization or other laws of general applicability
relating to or affecting creditors' rights, or by general principles of
equity whether considered at law or at equity.
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g. Each consent, approval, authorization, order, license,
certificate, permit, registration, designation or filing by or with any
governmental agency or body necessary for the valid authorization,
issuance, sale and delivery of the Shares, the execution, delivery and
performance of this Agreement and the Transition Agreement and the
consummation by the Sellers of the transactions contemplated hereby and
thereby has been made or obtained and is in full force and effect,
except, with respect to this Agreement, as may be required under
applicable state securities laws.
h. Neither the issuance, sale and delivery by the Company of
the Shares, nor the execution, delivery and performance of this Agreement
or the Transition Agreement, nor the consummation of the transactions
contemplated hereby or thereby will conflict with or result in a breach
or violation of any of the terms and provisions of, or (with or without
the giving of notice or the passage of time or both) constitute a default
under the charter or bylaws of the Sellers or the Subsidiaries,
respectively, or under any indenture, mortgage, deed of trust, loan
agreement, note, lease or other agreement or instrument to which the
Sellers or the Subsidiaries, respectively, is a party or to which any of
the respective properties or other assets of the Sellers or the
Subsidiaries, respectively, is subject, or any applicable statute,
judgment, decree, order, rule or regulation of any court or governmental
agency or body applicable to any of the foregoing or any of their
respective properties, or result in the creation or imposition of any
lien, charge, claim or encumbrance upon any property or asset of the
Sellers or the Subsidiaries, respectively.Each consent, approval,
authorization, order, license, certificate, permit, registration,
designation or filing by or with any governmental agency or body
necessary for the valid authorization, issuance, sale and delivery of the
Shares, the execution, delivery and performance of this Agreement and the
Transition Agreement and the consummation by the Sellers of the
transactions contemplated hereby and thereby has been made or obtained
and is in full force and effect, except, with respect to this Agreement,
as may be required under applicable state securities laws.
i. The Shares to be issued and sold to the Underwriters
hereunder have been validly authorized by the Company. When issued and
delivered against payment therefor as provided in this Agreement, the
Shares will be duly and validly issued, fully paid and nonassessable. No
preemptive rights of shareholders exist with respect to any of the Shares
which have not been satisfied or waived. No person or entity holds a
right to require or participate in the registration under the 1933 Act of
the Shares pursuant to the Registration Statement which has not been
satisfied or waived; and, except as set forth in the Prospectus, no
person holds a right to require registration under the 1933 Act of any
shares of Common Stock of the Company or shares of capital stock of any
of the Subsidiaries at any other time which has not been satisfied or
waived.
j. Upon consummation of the transactions contemplated by the
Transition Agreement (the "Transactions"), the Company's authorized,
issued and outstanding capital stock will be as disclosed in the
Prospectus. All of the issued shares of capital stock of the Company
have been and all such shares to be issued in connection with the
Transactions will
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be, when issued in accordance with the terms of the Transition Agreement,
the Agreement and Plan of Stock Exchange and the Share Exchange Agreement
provided for therein (the "Transaction Agreements"), duly authorized and
validly issued, fully paid and nonassessable and conform to the
description of the Company's capital stock contained in the Prospectus.
k. All of the issued shares of capital stock of each of the
Subsidiaries have been duly authorized and validly issued, are fully paid
and nonassessable and, upon consummation of the Transactions, will be
owned directly or indirectly through another Subsidiary by the Company
free and clear of all liens, security interests, pledges, charges,
encumbrances, defects, shareholders' agreements, voting trusts, equities
or claims of any nature whatsoever. Other than the Subsidiaries, the
Company does not own, directly or indirectly, any capital stock or other
equity securities of any other corporation or any ownership interest in
any partnership, joint venture or other association.
l. Except as disclosed in the Prospectus and except for
rights that will terminate upon the consummation of the Transactions as
contemplated by the Transition Agreement, there are no outstanding (i)
securities or obligations of the Company or any of its Subsidiaries
convertible into or exchangeable for any capital stock of the Company or
any such Subsidiary, (ii) warrants, rights or options to subscribe for or
purchase from the Company or any such Subsidiary any such capital stock
or any such convertible or exchangeable securities or obligations, or
(iii) obligations of the Company or any such Subsidiary to issue any
shares of capital stock, any such convertible or exchangeable securities
or obligation, or any such warrants, rights or options.
m. The Company and its Subsidiaries have good and marketable
title, or a valid and renewable leasehold interest to all real property,
if any, and good title to all personal property owned by it, in each case
free and clear of all liens, security interests, pledges, charges,
encumbrances, mortgages and defects, except such as are disclosed in the
Prospectus or such as do not materially and adversely affect the value of
such property and do not interfere with the use made or proposed to be
made of such property by the Company and its Subsidiaries; and any real
property and buildings held under lease by the Company or any
Subsidiaries are held under valid, existing and enforceable leases, with
such exceptions as are disclosed in the Prospectus or are not material
and do not interfere with the use made or proposed to be made of such
property and buildings by the Company or such Subsidiary.
n. The financial statements of the Company, Universal
Fabricators and the consolidated Subsidiaries of Universal Fabricators
included in the Registration Statement and Prospectus present fairly the
financial position of the Company, Universal Fabricators and the
consolidated Subsidiaries of Universal Fabricators as of the dates
indicated and the results of operations and cash flows for the Company
and its consolidated Subsidiaries for the periods specified, all in
conformity with generally accepted accounting principles applied on a
consistent basis. The financial statement schedules included in the
Registration Statement and the amounts in the Prospectus under the
captions "Prospectus Summary -- Summary Financial
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and Operating Data" and "Selected Financial and Operating Data" fairly
present the information shown therein and have been compiled on a basis
consistent with the financial statements included in the Registration
Statement and the Prospectus. The unaudited pro forma financial
information (including the related notes) included in the Prospectus or
any Preliminary Prospectus complies as to form in all material respects
to the applicable accounting requirements of the 1933 Act and the 1933
Act Regulations, and management of the Company believes that the
assumptions underlying the pro forma adjustments are reasonable. Such pro
forma adjustments have been properly applied to the historical amounts in
the compilation of the information and such information fairly presents,
with respect to the Company, Universal Fabricators and the consolidated
Subsidiaries of Universal Fabricators, the financial position, results of
operations and other information purported to be shown therein at the
respective dates and for the respective periods specified.
▇. ▇▇▇▇▇ & Young LLP, who have examined and are reporting
upon the audited financial statements and schedules included in the
Registration Statement, are, and were during the periods covered by their
reports included in the Registration Statement and the Prospectus,
independent public accountants within the meaning of the 1933 Act and the
1933 Act Regulations.
p. Neither the Company nor any of its Subsidiaries has
sustained, since March 31, 1997, any material loss or interference with
its business from fire, explosion, flood, hurricane, accident or other
calamity, whether or not covered by insurance, or from any labor dispute
or arbitrators' or court or governmental action, order or decree; and,
since the respective dates as of which information is given in the
Registration Statement and the Prospectus, and except as otherwise stated
in the Registration Statement and Prospectus, there has not been (i) any
material change in the capital stock, long-term debt, obligations under
capital leases or short-term borrowings of the Company or its
Subsidiaries, or (ii) any material adverse change, or any development
which could reasonably be seen as involving a prospective material
adverse change, in or affecting the business, prospects, properties,
assets, results of operations or condition (financial or other) of the
Company or its Subsidiaries.
q. Neither the Company nor any of its Subsidiaries is in
violation of its charter, or by-laws, and no default exists, and no event
has occurred, nor state of facts exists, which, with notice or after the
lapse of time to cure or both, would constitute a default in the due
performance and observance of any obligation, agreement, term, covenant,
consideration or condition contained in any indenture, mortgage, deed of
trust, loan agreement, note, lease or other agreement or instrument to
which any such entity is a party or to which any such entity or any of
its properties is subject. Neither the Company nor any of its
Subsidiaries is in violation of, or in default with respect to, any
statute, rule, regulation, order, judgment or decree, except as may be
properly described in the Prospectus or such as in the aggregate do not
now have and will not in the future have a material adverse effect on the
financial position, results of operations or business of each such
entity, respectively.
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r. There is not pending or threatened, any action, suit,
proceeding, inquiry or investigation against the Company, its
Subsidiaries or any of the officers and directors of the Company or its
Subsidiaries or to which the properties, assets or rights of the Company
or its Subsidiaries are subject, before or brought by any court or
governmental agency or body or board of arbitrators that is required to
be described in the Registration Statement or the Prospectus but is not
described as required.
s. The descriptions in the Registration Statement and the
Prospectus of the contracts, leases and other legal documents therein
described present fairly the information required to be shown, and there
are no contracts, leases, or other documents of a character required to
be described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement which are not described
or filed as required.
t. Except as disclosed in the Prospectus, the Company and
each of its Subsidiaries own, possess or have obtained all material
permits, licenses, franchises, certificates, consents, orders, approvals
and other authorizations of governmental or regulatory authorities or
other entities as are necessary to own or lease, as the case may be, and
to operate its properties and to carry on its business as presently
conducted, or as contemplated in the Prospectus to be conducted, and
neither the Company nor any of its Subsidiaries has received any notice
of proceedings relating to revocation or modification of any such
licenses, permits, franchises, certificates, consents, orders, approvals
or authorizations.
u. The Company and each of its Subsidiaries owns or possesses
adequate license or other rights to use all patents, trademarks, service
marks, trade names, copyrights, software and design licenses, trade
secrets, manufacturing processes, other intangible property rights and
know-how (collectively "Intangibles") necessary to entitle the Company
and each of its Subsidiaries to conduct its business as described in the
Prospectus, and neither the Company nor any of its Subsidiaries has
received notice of infringement of or conflict with (and knows of no such
infringement of or conflict with) asserted rights of others with respect
to any Intangibles which could materially and adversely affect the
business, prospects, properties, assets, results of operations or
condition (financial or otherwise) of the Company or any of its
Subsidiaries.
v. The Company's and the Subsidiaries' respective systems of
internal accounting controls are sufficient to meet the broad objectives
of internal accounting control insofar as those objectives pertain to the
prevention or detection of errors or irregularities in amounts that would
be material in relation to the Company's or the Subsidiaries' financial
statements; and neither the Company, the Subsidiaries, nor any employee
or agent thereof has made any payment of funds of the Company or the
Subsidiaries nor received or retained any funds, and no funds of the
Company or the Subsidiaries have been set aside to be used for any
payment, in each case in violation of any law, rule or regulation.
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w. The Company and the Subsidiaries have filed on a timely
basis all necessary federal, state, local and foreign income and
franchise tax returns required to be filed through the date hereof and
have paid all taxes shown as due thereon; and no tax deficiency has been
asserted against the Company, nor does any such entity know of any tax
deficiency which is likely to be asserted against any such entity which
if determined adversely to any such entity, could materially adversely
affect the business, prospects, properties, assets, results of operations
or condition (financial or otherwise) of the Company. All tax liabilities
are adequately provided for on the respective books of the Company.
x. The Company and its Subsidiaries maintain insurance
(issued by insurers of recognized financial responsibility) of the types
and in the amounts generally deemed adequate for its business and,
consistent with insurance coverage maintained by similar companies in
similar businesses, including, but not limited to, insurance covering
real and personal property owned or leased by the Company and its
Subsidiaries against theft, damage, destruction, acts of vandalism and
all other risks customarily insured against, all of which insurance is in
full force and effect.
y. Neither the Sellers, the Subsidiaries, nor their officers,
directors or affiliates have taken, nor will take, directly or
indirectly, any action that is designed to, or that might reasonably be
expected to, cause or result in or constitute the stabilization or
manipulation of any security of the Company or to facilitate the sale or
resale of the Shares.
z. Neither the Company nor any of its Subsidiaries is, will
become as a result of the transactions contemplated hereby, or will
conduct its business in a manner which would cause it to become, "an
investment company,"or a company "controlled" by an "investment
company,"within the meaning of the Investment Company Act of 1940, as
amended.
aa. Each of the Sellers has full corporate power and authority
to enter into the Transition Agreement. The Transition Agreement has
been duly authorized, executed and delivered by the Sellers and
constitutes a valid and binding agreement of the Sellers, enforceable in
accordance with its terms, except to the extent that enforceability may
be limited by bankruptcy, insolvency, moratorium, reorganization or other
laws of general applicability relating to or affecting creditors' rights,
or by general principles of equity whether considered at law or at
equity. Neither the execution, delivery and performance of the
Transition Agreement by the any of the Sellers, nor the consummation of
the transactions contemplated thereby, will conflict with or result in a
breach or violation of any of the terms and provisions of, or (with or
without the giving of notice or the passage of time or both) constitute a
default under the charter or bylaws of the Sellers or under any
indenture, mortgage, deed of trust, loan agreement, note, lease or other
agreement or instrument to which any of the Sellers is a party or to
which any of the respective properties or other assets of the Sellers is
subject; or any applicable statute, judgment, decree, order, rule or
regulation of any court or governmental agency or body applicable to any
of the foregoing or any of their
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respective properties; or result in the creation or imposition of any
lien, charge, claim or encumbrance upon any property or asset of any of
the Sellers.
Section 2. Representations and Warranties of Universal Partners,
Inc.Universal Partners, Inc., a Louisiana coporation ("Universal Partners"),
represents and warrants to, and agrees with, each of the several Underwriters
that:
a. Universal Partners has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the
state of Louisiana with all requisite corporate power and authority to
own, lease and operate its properties and to conduct its business.
b. Universal Partners has full corporate right, power and
authority to enter into this Agreement, the Transition Agreement and the
Agreement and Plan of Share Exchange Agreement and to consummate the
transactions contemplated by this Agreement, the Transition Agreement and
the Agreement and Plan of Stock Exchange. This Agreement has been duly
authorized, executed and delivered by Universal Partners and constitutes
a valid and binding agreement of Universal Partners, enforceable in
accordance with its terms, except to the extent that enforceability may
be limited by bankruptcy, insolvency, moratorium, reorganization or other
laws of general applicability relating to or affecting creditors' rights,
or by general principles of equity whether considered at law or at equity
and except to the extent enforcement of the indemnification provisions
set forth in Section 9 of this Agreement may be limited by federal or
state securities laws or the public policy underlying such laws. The
Transition Agreement has been duly authorized, executed and delivered by
Universal Partners and constitutes a valid and binding agreement of
Universal Partners, enforceable in accordance with its terms, except to
the extent that enforceability may be limited by bankruptcy, insolvency,
moratorium, reorganization or other laws of general applicability
relating to or affecting creditors' rights, or by general principles of
equity whether considered at law or at equity. The Agreement and Plan of
Stock Exchange has been duly authorized, executed and delivered by
Universal Partners and constitutes a valid and binding agreement of
Universal Partners, enforceable in accordance with its terms, except to
the extent that enforceability may be limited by bankruptcy, insolvency,
moratorium, reorganization or other laws of general applicability
relating to or affecting creditors' rights, or by general principles of
equity whether considered at law or at equity.
c. Each consent, approval, authorization, order, license,
certificate, permit, registration, designation or filing by or with any
governmental agency or body necessary for the valid execution, delivery
and performance of this Agreement , the Transition Agreement and the
Agreement and Plan of Stock Exchange and the consummation by Universal
Partners of the transactions contemplated hereby and thereby has been
made or obtained and is in full force and effect, except, with respect to
this Agreement, as may be required under applicable state securities
laws.
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d. Neither the execution, delivery and performance of this
Agreement, the Transition Agreement or the Agreement and Plan of Stock
Exchange, nor the consummation of the transactions contemplated hereby or
thereby will conflict with or result in a breach or violation of any of
the terms and provisions of, or (with or without the giving of notice or
the passage of time or both) constitute a default under the charter or
bylaws of Universal Partners or under any indenture, mortgage, deed of
trust, loan agreement, note, lease or other agreement or instrument to
which Universal Partners is a party or to which any of the properties or
other assets of Universal Partners is subject, or any applicable statute,
judgment, decree, order, rule or regulation of any court or governmental
agency or body applicable to any of the foregoing or any of its
properties, or result in the creation or imposition of any lien, charge,
claim or encumbrance upon any property or asset of Universal Partners.
Each consent, approval, authorization, order, license, certificate,
permit, registration, designation or filing by or with any governmental
agency or body necessary for the valid execution, delivery and
performance of this Agreement, the Transition Agreement and the Agreement
and Plan of Share Exchange and the consummation by Universal Partners of
the transactions contemplated hereby and thereby has been made or
obtained and is in full force and effect, except, with respect to this
Agreement, as may be required under applicable state securities laws.
Section 3. Representations and Warranties of the Selling Shareholder.
The Selling Shareholder represents and warrants to, and agrees with, each of
the several Underwriters and the Company that:
a. The Selling Shareholder has full right, power and
authority to enter into this Agreement and the Transition Agreement and
to sell, assign, transfer and deliver to the Underwriters the Firm
Selling Shareholder Shares to be sold by the Selling Shareholder
hereunder; and the execution and delivery of this Agreement and the
Transition Agreement have been duly authorized by all necessary action of
the Selling Shareholder.
b. The Selling Shareholder has duly executed and delivered
this Agreement and the Transition Agreement, and each constitutes the
valid and binding agreement of the Selling Shareholder enforceable
against the Selling Shareholder in accordance with its terms, subject, as
to enforcement, to applicable bankruptcy, insolvency, reorganization and
moratorium laws and other laws relating to or affecting the enforcement
of creditors' rights generally and to general equitable principles.
c. No consent, approval, authorization, order or declaration
of or from, or registration, qualification or filing with, any court or
governmental agency or body is required for the sale of the Firm Selling
Shareholder Shares to be sold by the Selling Shareholder or the
consummation of the Transactions contemplated by this Agreement or the
Transition Agreement, except the registration of such Firm Selling
Shareholder Shares under the 1933 Act (which, if the Registration
Statement is not effective as of the time of execution hereof, shall be
obtained as provided in this Agreement) and such as may be required under
state
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securities or blue sky laws in connection with the offer, sale and
distribution of such Firm Selling Shareholder Shares by the
Underwriters.
d. The sale of the Firm Selling Shareholder Shares to be
sold by the Selling Shareholder and the performance of this Agreement and
the Transition Agreement and the consummation of the transactions herein
and therein contemplated will not conflict with, or (with or without the
giving of notice or the passage of time or both) result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which the Selling Shareholder is a party
or to which any of its properties or assets is subject, nor will such
action conflict with or violate any provision of the charter or bylaws or
other governing instruments of the Selling Shareholder, if any, or any
statute, rule or regulation or any order, judgment or decree of any court
or governmental agency or body having jurisdiction over the Selling
Shareholder or any of the Selling Shareholder's properties or assets.
e. The Selling Shareholder has good and valid title to the
shares of common stock of Universal Fabricators to be exchanged for the
Firm Selling Shareholder Shares pursuant to the Transition Agreement, and
at the Closing Time (as defined in Section 3 hereof) the Selling
Shareholder will have, good and valid title to the Firm Selling
Shareholder Shares, free and clear of all liens, security interests,
pledges, charges, encumbrances, defects, shareholders' agreements, voting
trusts, equities or claims of any nature whatsoever; and, upon delivery
of such Firm Selling Shareholder Shares against payment therefor as
provided herein, good and valid title to such Firm Selling Shareholder
Shares, free and clear of all liens, security interests, pledges,
charges, encumbrances, defects, shareholders' agreements, voting trusts,
equities or claims of any nature whatsoever, will pass to the several
Underwriters.
f. The Selling Shareholder has not taken, and will not take,
directly or indirectly, any action that is designed to, or that might
reasonably be expected to, cause or result in or constitute the
stabilization or manipulation of any security of the Company or to
facilitate the sale or resale of the Shares.
In order to document the Underwriters' compliance with the reporting and
withholding provisions of the Internal Revenue Code of 1986, as amended, with
respect to the transactions herein contemplated, the Selling Shareholder agrees
to deliver to you prior to or at the Closing Time (as hereinafter defined) a
properly completed and executed United States Treasury Department form W-9 (or
other applicable form or statement specified by Treasury Department regulations
in lieu thereof).
Section 4. Sale and Delivery of the Shares to the Underwriters;
Closing.
On the basis of the representations and warranties herein contained, and
subject to the terms and conditions herein set forth, the Company agrees to
issue and sell to each of the Underwriters the Firm Company Shares, and the
Selling Shareholder agrees to sell to each of the Underwriters the
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Firm Selling Shareholder Shares, and each Underwriter agrees, severally and not
jointly, to purchase from the Company and the Selling Shareholder the number of
Firm Shares set forth opposite the name of such Underwriter in Schedule A (the
proportion which each Underwriter's share of the total number of the Firm
Shares bears to the total number of Firm Shares is hereinafter referred to as
such Underwriter's "underwriting obligation proportion"), at a purchase price
of $__________ per share.
a. In addition, on the basis of the representations and
warranties herein contained, and subject to the terms and conditions
herein set forth, the Company hereby grants an option to the Underwriters
to purchase, severally and not jointly, up to an additional 422,250
Option Shares at the same purchase price as shall be applicable to the
Firm Shares. The option hereby granted will expire if not exercised
within the thirty (30) day period after the date of the Prospectus by
giving written notice to the Company. The option granted hereby may be
exercised in whole or in part (but not more than once) by you, as
representatives of the Underwriters, only for the purpose of covering
over-allotments that may be made in connection with the offering and
distribution of the Firm Shares. The notice of exercise shall set forth
the number of Option Shares as to which the several Underwriters are
exercising the option, and the time and date of payment and delivery
thereof. Such time and date of delivery (the "Date of Delivery") shall be
determined by you but shall not be later than three full business days
after the exercise of such option, nor in any event prior to the Closing
Time. If the option is exercised as to all or any portion of the Option
Shares, the Option Shares as to which the option is exercised shall be
purchased by the Underwriters, severally and not jointly, in their
respective underwriting obligation proportions.
b. Payment of the purchase price for and delivery of
certificates in definitive form representing the Firm Shares shall be
made at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other place as shall be agreed upon
by the Company, the Selling Shareholder and you, at 10:00 a.m., either
(i) on the third full business day after the execution of this Agreement,
or (ii) at such other time not more than ten full business days
thereafter as you, the Selling Shareholder and the Company shall
determine (unless, in either case, postponed pursuant to the term
hereof), (such date and time of payment and delivery being herein called
the "Closing Time"). In addition, in the event that any or all of the
Option Shares are purchased by the Underwriters, payment of the purchase
price for and delivery of certificates in definitive form representing
the Option Shares shall be made at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ &
Company, Inc. in the manner set forth above, or at such other place as
the Company and you shall determine, on the Date of Delivery as specified
in the notice from you to the Company. Payment for the Firm Company
Shares and the Option Shares shall be made to the Company and payment
shall be made to the Selling Shareholder for the Firm Selling Shareholder
Shares by wire transfer in same-day funds to the accounts designated to
the Underwriters in writing by the Company and the Selling Shareholder,
as appropriate (or in such other manner as you, the Company and the
Selling Shareholder shall agree) against delivery to you for the
respective accounts of the Underwriters of the Shares to be purchased by
them.
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c. The certificates representing the Shares to be purchased
by the Underwriters shall be in such denominations and registered in such
names as you may request in writing at least two full business days
before the Closing Time or the Date of Delivery, as the case may be. The
certificates representing the Shares will be made available at the
offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc. or at such other place as ▇▇▇▇▇▇
▇▇▇▇▇▇ & Company, Inc. may designate for examination and packaging not
later than 10:00 a.m. at least one full business day prior to the Closing
Time or the Date of Delivery as the case may be.
d. After the Registration Statement becomes effective, you
intend to offer the Shares to the public as set forth in the Prospectus,
but after the initial public offering of such Shares you may in your
discretion vary the public offering price.
Section 5. Certain Covenants of the Company. The Company covenants
and agrees with the Selling Shareholder and each Underwriter as follows:
a. The Company will use its best efforts to cause the
Registration Statement to become effective (if not yet effective at the
date and time that this Agreement is executed and delivered by the
parties hereto). If the Company elects to rely upon Rule 430A of the 1933
Act Regulations or the filing of the Prospectus is otherwise required
under Rule 424(b) of the 1933 Act Regulations, the Company will comply
with the requirements of Rule 430A and will file the Prospectus, properly
completed, pursuant to the applicable provisions of Rule 424(b), or a
Term Sheet pursuant to and in accordance with Rule 434, within the time
period prescribed. If the Company elects to rely upon Rule 462(b) of the
1933 Act Regulations, the Company shall file a 462(b) Registration
Statement with the Commission in compliance with Rule 462(b) by 10:00
p.m., Washington, D.C. time on the date of this Agreement, and the
Company shall at the time of filing either pay to the Commission the
filing fee for the Rule 462(b) Registration Statement or give irrevocable
instructions for the payment of such fee. The Company will notify you
immediately, and confirm the notice in writing, (i) when the Registration
Statement, 462(b) Registration Statement or any post-effective amendment
to the Registration Statement, shall have become effective, or any
supplement to the Prospectus or any amended Prospectus shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of
any request by the Commission to amend the Registration Statement or
462(b) Registration Statement or amend or supplement the Prospectus or
for additional information, and (iv) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or any 462(b) Registration Statement or of any order preventing or
suspending the use of any Preliminary Prospectus or the suspension of the
qualification of the Shares for offering or sale in any jurisdiction, or
of the institution or threatening of any proceeding for any such
purposes. The Company will use every reasonable effort to prevent the
issuance of any such stop order or of any order preventing or suspending
such use and, if any such order is issued, to obtain the withdrawal
thereof at the earliest possible moment.
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b. The Company will not at any time file or make any
amendment to the Registration Statement, or any amendment or supplement
(i) to the Prospectus, if the Company has not elected to rely upon Rule
430A, (ii) if the Company has elected to rely upon Rule 430A, to either
the Prospectus included in the Registration Statement at the time it
becomes effective or to the Prospectus filed in accordance with Rule
424(b) or any Term Sheet filed in accordance with Rule 434, or (iii) if
the Company has elected to rely upon Rule 462(b), to any 462(b)
Registration Statement in any case if you shall not have previously been
advised and furnished a copy thereof a reasonable time prior to the
proposed filing, or if you or counsel for the Underwriters shall object
to such amendment or supplement.
c. The Company has furnished or will furnish to you, at its
expense, as soon as available, three copies of the Registration Statement
as originally filed and of all amendments thereto, whether filed before
or after the Registration Statement becomes effective, copies of all
exhibits and documents filed therewith and signed copies of all consents
and certificates of experts, as you may reasonably request, and has
furnished or will furnish to each Underwriter, one conformed copy of the
Registration Statement as originally filed and of each amendment thereto.
d. The Company will deliver to each Underwriter, at the
Company's expense, from time to time, as many copies of each Preliminary
Prospectus as such Underwriter may reasonably request, and the Company
hereby consents to the use of such copies for purposes permitted by the
1933 Act. The Company will deliver to each Underwriter, at the Company's
expense, as soon as the Registration Statement shall have become
effective and thereafter from time to time as requested during the period
when the Prospectus is required to be delivered under the 1933 Act, such
number of copies of the Prospectus (as supplemented or amended) as each
Underwriter may reasonably request. The Company will comply to the best
of its ability with the 1933 Act and the 1933 Act Regulations so as to
permit the completion of the distribution of the Shares as contemplated
in this Agreement and in the Prospectus. If the delivery of a prospectus
is required at any time prior to the expiration of nine months after the
time of issue of the Prospectus or any Term Sheet in connection with the
offering or sale of the Shares and if at such time any events shall have
occurred as a result of which the Prospectus or any Term Sheet as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in light of the circumstances under which they were
made when such Prospectus or any Term Sheet is delivered not misleading,
or, if for any reason it shall be necessary during such same period to
amend or supplement the Prospectus or any Term Sheet in order to comply
with the 1933 Act or the 1933 Act Regulations, the Company will notify
you and upon your request prepare and furnish without charge to each
Underwriter and to any dealer in securities as many copies as you may
from time to time reasonably request of an amended Prospectus or any Term
Sheet or a supplement to the Prospectus or any Term Sheet or an amendment
or supplement to any such incorporated document which will correct such
statement or omission or effect such compliance, and in case any
Underwriter is required to deliver a prospectus in connection with sales
of any of the Shares at any time nine months or
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more after the time of issue of the Prospectus or any Term Sheet, upon
your request but at the expense of such Underwriter, the Company will
prepare and deliver to such Underwriter as many copies as you may request
of an amended or supplemented Prospectus or any Term Sheet complying with
Section 10(a)(3) of the 1933 Act.
e. The Company will use its best efforts to qualify the
Shares for offering and sale under the applicable securities laws of such
states and other jurisdictions as you may designate and to maintain such
qualifications in effect for as long as may be necessary to complete the
distribution of the Shares; provided, however, that the Company shall not
be obligated to file any general consent to service of process or to
qualify as a foreign corporation in any jurisdiction in which it is not
so qualified or to make any undertakings in respect of doing business in
any jurisdiction in which it is not otherwise so subject. The Company
will file such statements and reports as may be required by the laws of
each jurisdiction in which the Shares have been qualified as above
provided.
f. The Company will make generally available to its security
holders as soon as practicable, but in any event not later than the end
of the fiscal quarter first occurring after the first anniversary of the
"effective date of the Registration Statement" (as defined in Rule 158(c)
of the 1933 Act Regulations), an earnings statement (in reasonable detail
but which need not be audited) complying with the provisions of Section
11(a) of the 1933 Act and Rule 158 thereunder and covering a period of at
least 12 months beginning after the effective date of the Registration
Statement.
g. The Company will use the net proceeds received by it from
the sale of the Shares in the manner specified in the Prospectus under
the caption "Use of Proceeds."
h. During a period of five years after the date hereof, the
Company will furnish to you: (i) if and at the time it furnishes such
reports to its securityholders, statements of operations of the Company
for each of the first three quarters of each fiscal year in the form
furnished to the Company's securityholders; (ii) concurrently with
furnishing to its securityholders, a balance sheet of the Company as of
the end of such fiscal year, together with statements of operations, of
cash flows and of securityholders' equity of the Company for such fiscal
year, accompanied by a copy of the certificate or report thereon of
independent public accountants; (iii) as soon as they are available,
copies of all reports (financial or otherwise) mailed to securityholders;
(iv) as soon as they are available, copies of all reports and financial
statements furnished to or filed with the Commission, any securities
exchange or the National Association of Securities Dealers, Inc. (the
"NASD"); (v) every material press release in respect of the Company or
its affairs which is released by the Company; and (vi) any additional
information of a public nature concerning the Company or its business
that you may reasonably request. During such five-year period, the
foregoing financial statements shall be on a consolidated basis to the
extent that the accounts of the Company are consolidated with any
subsidiaries, and shall be accompanied by similar financial statements
for any significant subsidiary that is not so consolidated.
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i. During the period beginning from the date hereof and
continuing to and including the date 180 days after the date of the
Prospectus, the Company will not, without the prior written consent of
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc., offer, pledge, issue, sell, contract to
sell, grant any option for the sale of, or otherwise dispose of, or
announce any offer, pledge, sale, grant of any option to purchase or
otherwise acquire, directly or indirectly, any shares of Common Stock or
securities convertible into, exercisable for or exchangeable for, shares
of Common Stock, except as provided in the Transition Agreement, Section
3 of this Agreement or pursuant to the Company's Long-Term Incentive Plan
(as specified in the Prospectus under the caption "Management") or in
connection with the acquisition of businesses or assets by the Company or
a subsidiary of the Company.
j. The Company will maintain a transfer agent and, if
necessary under the jurisdiction of incorporation of the Company, a
registrar (which may be the same entity as the transfer agent) for its
Common Stock.
k. The Company will cause the Shares to be listed, subject to
notice of issuance, on the Nasdaq National Market and will use its best
efforts to maintain the listing of the Shares on the Nasdaq National
Market.
l. The Company is familiar with the Investment Company Act of
1940, as amended, and the rules and regulations thereunder, and has in
the past conducted its affairs, and will in the future conduct its
affairs, in such a manner so as to ensure that the Company was not and
will not be an "investment company" or an entity "controlled" by an
"investment company" within the meaning of the Investment Company Act of
1940, as amended.
m. The Company will not, and will use its best efforts to
cause its officers, directors and affiliates not to, in violation of
Regulation M of the 1934 Act Regulations (i) take, directly or indirectly
prior to termination of the underwriting syndicate contemplated by this
Agreement, any action designed to stabilize or manipulate the price of
any security of the Company, or which may cause or result in, or which
might in the future reasonably be expected to cause or result in, the
stabilization or manipulation of the price of any security of the
Company, to facilitate the sale or resale of any of the Shares, (ii)
sell, bid for, purchase or pay anyone any compensation for soliciting
purchases of the Shares or (iii) pay or agree to pay to any person any
compensation for soliciting any order to purchase any other securities of
the Company.
n. If at any time during the 30-day period after the
Registration Statement becomes effective, any rumor, publication or event
relating to or affecting the Company shall occur as a result of which in
your reasonable opinion the market price of the Common Stock has been or
is likely to be materially affected (regardless of whether such rumor,
publication or event necessitates a supplement to or amendment of the
Prospectus) and after written notice from you advising the Company to the
effect set forth above, the Company agrees to consult
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with you concerning the substance and dissemination of a press release or
other public statement responding to or commenting on such rumor,
publication or event.
Section 6. Covenants of the Selling Shareholder. The Selling
Shareholder covenants and agrees with each of the Underwriters that the Selling
Shareholder will not, in violation of Regulation M of the 1934 Act Regulations,
(i) take, directly or indirectly, prior to the termination of the underwriting
syndicate contemplated by this Agreement, any action designed to cause or to
result in, or that might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of any of the Shares, (ii) sell, bid for,
purchase or pay anyone any compensation for soliciting purchases of, the Shares
or (iii) pay to or agree to pay any person any compensation for soliciting
another to purchase any other securities of the Company.
Section 7. Payment of Expenses. The Sellers will pay and bear all
costs, fees and expenses incident to the performance of its obligations under
this Agreement (excluding fees and expenses of counsel for the Underwriters,
except as specifically set forth below), including (a) the preparation,
printing and filing of the Registration Statement (including financial
statements and exhibits), as originally filed and as amended, the Preliminary
Prospectuses, the Prospectus and any Term Sheet and any amendments or
supplements thereto, and the cost of furnishing copies thereof to the
Underwriters, (b) the preparation, printing and distribution of this Agreement,
the certificates representing the Shares, the Blue Sky Memoranda and any
instruments relating to any of the foregoing, (c) the issuance and delivery of
the Shares to the Underwriters, including any transfer taxes payable upon the
sale of the Shares to the Underwriters (other than transfer taxes on resales by
the Underwriters), (d) the fees and disbursements of the Sellers' counsel and
accountants, (e) the qualification of the Shares under the applicable
securities laws in accordance with the terms of this Agreement, including
filing fees and fees and disbursements of counsel for the Underwriters in
connection therewith and in connection with the preparation of the Blue Sky
Memoranda, (f) all costs, fees and expenses in connection with the notification
to the Nasdaq National Market of the proposed issuance of the Shares, (g)
filing fees relating to the review of the offering by the NASD, (h) the
transfer agent's and registrar's fees and all miscellaneous expenses referred
to in Part II of the Registration Statement, (i) costs related to travel and
lodging incurred by the Sellers and their representatives relating to meetings
with and presentations to prospective purchasers of the Shares reasonably
determined by the Underwriters to be necessary or desirable to effect the sale
of the Shares to the public, and (j) all other costs and expenses incident to
the performance of the Sellers' obligations hereunder (including costs incurred
in closing the purchase of the Option Shares, if any) that are not otherwise
specifically provided for in this section. The Sellers, upon your request, will
provide funds in advance for filing fees in connection with "blue sky"
qualifications.
If the sale of the Shares provided for herein is not consummated because
any condition to the obligations of the Underwriters set forth in Section 7
hereof is not satisfied, because of any termination pursuant to Section 10
hereof or because of any refusal, inability or failure on the part of the
Company to perform any agreement herein or comply with any provision hereof
other than by reason of default by any of the Underwriters, the Sellers will
reimburse the Underwriters severally
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on demand for all reasonable out-of-pocket expenses, including fees and
disbursements of Underwriters' counsel, reasonably incurred by the Underwriters
in reviewing the Registration Statement and the Prospectus, and in
investigating and making preparations for the marketing of the Shares, provided
that the Sellers will not be required to pay more than $150,000 in the
aggregate pursuant to this paragraph.
Section 8. Conditions of Underwriters' Obligations. The obligations
of the Underwriters to purchase and pay for (i) the Firm Shares that they have
respectively agreed to purchase pursuant to this Agreement (and any Option
Shares as to which the option granted in Section 4 has been exercised and the
Date of Delivery determined by you is the same as the Closing Time) at the
Closing Time and (ii) the Option Shares at the Date of Delivery of the Option
Shares, are subject to the accuracy of the representations and warranties of
the Sellers and the Selling Shareholder contained herein as of the Closing Time
or the Date of Delivery, as the case may be, and to the accuracy of the
representations and warranties of the Sellers and the Selling Shareholder
contained in certificates of any officer of the Company and the Selling
Shareholder delivered pursuant to the provisions hereof, to the performance by
the Sellers and the Selling Shareholder of their obligations hereunder, and to
the following further conditions:
a. The Registration Statement shall have become effective not
later than 5:30 p.m. on the date of this Agreement or, with your consent,
at a later time and date not later, however, than 5:30 p.m. on the first
business day following the date hereof, or at such later time or on such
later date as you may agree to in writing; if the Company has elected to
rely upon Rule 462(b), the 462(b) Registration Statement shall have
become effective by 10:00 p.m., Washington, D.C. time, on the date of
this Agreement; and at the Closing Time, no stop order suspending the
effectiveness of the Registration Statement or any 462(b) Registration
Statement shall have been issued under the 1933 Act, and no proceedings
for that purpose shall have been instituted or shall be pending or, to
your knowledge or the knowledge of the Company, shall be contemplated by
the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the satisfaction
of counsel for the Underwriters. If the Company has elected to rely upon
Rule 430A, a Prospectus or a Term Sheet containing the Rule 430A
Information shall have been filed with the Commission in accordance with
Rule 424(b) (or a post- effective amendment providing such information
shall have been filed and declared effective in accordance with the
requirements of Rule 430A).
b. At the Closing Time, you shall have received a favorable
opinion of Jones, Walker, Waechter, Poitevent, Carrere & ▇▇▇▇▇▇▇, L.L.P.,
counsel for the Company, dated as of the Closing Time, together with
signed or reproduced copies of such opinion for each of the other
Underwriters, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
i. The Company has been duly incorporated and is
validly existing as a corporation in good standing
under the laws of the State of
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Louisiana with the corporate power and authority to
own, lease and operate its properties and to
conduct its business as described in the
Registration Statement and the Prospectus. The
Company is qualified to transact business as a
foreign corporation and is in good standing in each
of the jurisdictions in which the ownership or
leasing of the Company's properties or the nature
or conduct of its business requires such
qualification, except where the failure to do so
would not have a material adverse effect on the
condition (financial or other), business,
properties, net worth or results of operations of
the Company and the Subsidiaries taken as a whole.
ii. Each of the Subsidiaries has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the state of its
incorporation. Each such entity has all requisite
corporate power and authority to own, lease and
operate its properties and conduct its business as
described in the Registration Statement and the
Prospectus. Each such entity is duly qualified to
do business and is in good standing as a foreign
corporation in each other jurisdiction in which the
ownership or leasing of its properties or the
nature or conduct of its business requires such
qualification, except where the failure to do so
would not have a material adverse effect on the
condition (financial or other), business,
properties, net worth or results of operations of
the Company and the Subsidiaries taken as a whole.
iii. The Company has the corporate power and authority
to enter into this Agreement, to issue, sell and
deliver the Shares as provided herein and to
consummate the transactions contemplated herein.
This Agreement has been duly authorized, executed
and delivered by the Company and, assuming due
authorization, execution and delivery by the
Underwriters, constitutes a valid and binding
agreement of the Company, enforceable in accordance
with its terms, except to the extent enforceability
may be limited by bankruptcy, insolvency,
moratorium, reorganization or other laws affecting
creditors' rights or by general principles of
equity whether considered at law or in equity and
except to the extent that enforcement of the
indemnification provisions set forth in Section 8
of this Agreement may be limited by federal or
state securities laws or the public policy
underlying such laws and except that no opinion
need be expressed as to the effect of the first
sentence of Section 15 of this Agreement as to the
laws of the State of Tennessee.
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iv. Each of the Company, Universal Partners and
Universal Fabricators has the corporate power and
authority to enter into the Transition Agreement
and to consummate the transactions contemplated
therein. The Transition Agreement has been duly
authorized, executed and delivered by each of the
Company, Universal Partners and Universal
Fabricators and, assuming due authorization,
execution and delivery by the Selling Shareholder
and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, constitutes a valid and
binding agreement of the Company, Universal
Partners and Universal Fabricators, enforceable in
accordance with its terms, except to the extent
enforceability may be limited by bankruptcy,
insolvency, moratorium, reorganization or other
laws affecting creditors' rights or by general
principles of equity whether considered at law or
in equity.
v. Each consent, approval, authorization, order,
license, certificate, permit, registration,
designation or filing by or with any governmental
agency or body necessary for the valid
authorization, issuance, sale and delivery of the
Shares, the execution, delivery and performance of
this Agreement and the Transition Agreement and the
consummation by the Company of the transactions
contemplated hereby and thereby, has been made or
obtained and is in full force and effect, except
such as may be necessary under state securities
laws or required by the NASD in connection with the
purchase and distribution of the Shares by the
Underwriters, as to which such counsel need express
no opinion.
vi. Neither the issuance, sale and delivery by the
Company of the Shares, nor the execution, delivery
and performance of this Agreement or the Transition
Agreement, nor the consummation of the transactions
contemplated hereby or thereby did or will conflict
with or result in a breach or violation of any of
the terms and provisions of, or (with or without
the giving of notice or the passage of time or
both) constitute a default under, the charter or
by-laws of the Company or the Subsidiaries,
respectively, or, under any indenture, mortgage,
deed of trust, loan agreement, note, lease or other
agreement or instrument to which the Company,
Universal Partners or the Subsidiaries,
respectively, is a party or to which the Company,
Universal Partners or the Subsidiaries,
respectively, or any of its respective properties
or other assets, is subject; or, to such counsel's
knowledge, any applicable statute, judgment,
decree, order, rule or regulation of any court or
governmental agency or body; or to such counsel's
knowledge, result in the creation or imposition of
any lien,
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charge, claim or encumbrance upon any property or
asset of the Company, Universal Partners or the
Subsidiaries, respectively.
vii. The Common Stock conforms in all material respects
as to legal matters to the description thereof
contained in the Registration Statement and the
Prospectus under the heading "Description of
Capital Stock."
viii. The Shares to be issued and sold to the
Underwriters hereunder have been validly authorized
by the Company. When issued and delivered against
payment therefor as provided in this Agreement,
such shares will be validly issued, fully paid and
nonassessable. To such counsel's knowledge, no
preemptive rights of shareholders exist with
respect to any of the Shares which have not been
satisfied or waived. To such counsel's knowledge,
no person or entity holds a right to require or
participate in the registration under the 1933 Act
of the Shares pursuant to the Registration
Statement which has not been satisfied or waived;
and, except as set forth in the Prospectus, no
person holds a right to require registration under
the 1933 Act of any shares of Common Stock of the
Company at any other time which has not been
satisfied or waived. The form of certificates
evidencing the Shares complies with all applicable
requirements of Louisiana law.
ix. The Company has an authorized capitalization as set
forth in the Prospectus under the caption
"Capitalization."All of the issued shares of
capital stock of the Company have been duly
authorized and validly issued, are fully paid and
nonassessable. None of the issued shares of
capital stock of the Company has been issued or is
owned or held in violation of any preemptive rights
of shareholders. All offers and sales of capital
stock by the Company and Universal Fabricators in
connection with the transactions contemplated by
the Transition Agreement were duly registered under
the 1933 Act or were exempt from the registration
requirements of the 1933 Act by reason of Sections
3(b), 4(2) or 4(6) thereof and were duly registered
or the subject of an available exemption from the
registration requirements of the applicable state
securities or blue sky laws, provided, however,
that such counsel need not express any opinion with
respect to the registration or availability of an
exemption under applicable state securities or blue
sky laws for shares of Common Stock issued pursuant
to an underwritten public offering.
x. All of the issued shares of capital stock of each
of the Subsidiaries have been duly authorized and
validly issued, are fully paid and
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nonassessable and, to such counsel's knowledge
after due inquiry, are owned directly, or
indirectly through another Subsidiary, by the
Company free and clear of all liens, security
interests, pledges, charges encumbrances, defects,
shareholders' agreements, voting trusts, equities
or claims of any nature whatsoever. To such
counsel's knowledge after due inquiry, other than
the Subsidiaries, the Company does not own,
directly or indirectly, any capital stock or other
equity securities of any other corporation or any
ownership interest in any partnership, joint
venture or other association.
xi. Except as disclosed in the Prospectus, to such
counsel's knowledge after due inquiry, there are no
outstanding (i) securities or obligations of the
Company or any of its Subsidiaries convertible into
or exchangeable for any capital stock of the
Company or any such Subsidiary, (ii) warrants,
rights or options to subscribe for or purchase from
the Company or any such Subsidiary any such capital
stock or any such convertible or exchangeable
securities or obligations, or (iii) obligations of
the Company or any such Subsidiary to issue any
shares of capital stock, any such convertible or
exchangeable securities or obligation, or any such
warrants, rights or options.
xii. Any real property and buildings held under lease by
the Company or any Subsidiary are held under valid,
existing and enforceable leases, with such
exceptions as are disclosed in the Prospectus or
are not material and do not interfere with the use
made or proposed to be made of such property and
buildings by the Company or such Subsidiary.
xiii. Neither the Company nor any of its Subsidiaries is
in violation of its charter or by-laws, and, to
such counsel's knowledge after due inquiry, no
material default exists, and no event has occurred
nor state of facts exist which, with notice or
after the lapse of time to cure or both, would
constitute a material default in the due
performance and observance of any obligation,
agreement, term, covenant, or condition contained
in any indenture, mortgage, deed of trust, loan
agreement, note, lease or other agreement or
instrument to which the Company is a party or to
which the Company or any of its properties is
subject.
xiv. To such counsel's knowledge, there is not pending
or threatened any action, suit, proceeding, inquiry
or investigation against the Company, the
Subsidiaries or any of the officers and directors
of the Company or the Subsidiaries or to which the
properties, assets or
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rights of the Company or the Subsidiaries are
subject, before or brought by any court or
governmental agency or body or board of
arbitrators, that are required to be described in
the Registration Statement or the Prospectus but
are not described as required.
xv. The descriptions in the Registration Statement and
the Prospectus of the contracts, leases and other
legal documents therein described present fairly
the information required to be shown and there are
no contracts, leases or other documents known to
such counsel of a character required to be
described in the Registration Statement or the
Prospectus or to be filed as exhibits to the
Registration Statement which are not described or
filed as required.
xvi. The Common Stock has been approved for trading on
the Nasdaq National Market.
xvii. The Registration Statement and any 462(b)
Registration Statement have become effective under
the 1933 Act and, to the knowledge of such counsel,
no stop order suspending the effectiveness of the
Registration Statement or any 462(b) Registration
Statement has been issued and no proceeding for
that purpose has been instituted or is pending or
contemplated under the 1933 Act. Other than
financial statements and other financial and
operating data and schedules contained therein, as
to which counsel need express no opinion, the
Registration Statement, any 462(b) Registration
Statement, all Preliminary Prospectuses, the
Prospectus and any amendment or supplement thereto,
appear on their face to conform as to form in all
material respects with the requirements of the 1933
Act and the rules and regulations thereunder.
xviii. The Company is not, or solely as a result of the
consummation of the transactions contemplated
hereby will not become, an "investment company,"or
a company "controlled" by an "investment company,"
within the meaning of the Investment Company Act of
1940, as amended.
xix. The descriptions in the Prospectus of statutes,
regulations, legal or governmental proceedings are
accurate and present fairly a summary of the
information required to be shown under the 1933 Act
and the 1933 Act Regulations. The information in
the Prospectus under the caption "Shares Available
for Future Sale," to the extent that it constitutes
matters of law or legal conclusions, has been
reviewed by such counsel, is correct and presents
fairly the information required to be disclosed
therein under the 1933 Act and the 1933 Act
Regulations.
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Such counsel also shall state that they have no reason to
believe that the Registration Statement, any 462(b) Registration
Statement or any further amendment thereto made prior to the
Closing Time or the Date of Delivery, as the case may be, on its
effective date and as of the Closing Time or the Date of
Delivery, as the case may be, contained or contains 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 not misleading, or that the Prospectus, or
any amendment or supplement thereto made prior to the Closing
Time or the Date of Delivery, as the case may be, as of its issue
date and as of the Closing Time or the Date of Delivery, as the
case may be, contained or contains any untrue statement of a
material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading
(provided that such counsel need express no belief regarding the
financial statements and related schedules and other financial
data contained in the Registration Statement, any 462(b)
Registration Statement, any amendment thereto, or the Prospectus,
or any amendment or supplement thereto).
c. You shall have received an opinion, dated the Closing
Time, of ▇▇▇▇ ▇. ▇▇▇▇▇▇, Assistant General Counsel - Transactions, of
▇▇▇▇▇▇▇▇▇ Incorporated, counsel for the Selling Shareholder, in form and
substance satisfactory to you and your counsel, to the effect that:
i. This Agreement and the Transition Agreement have
been duly executed and delivered by or on behalf of
the Selling Shareholder; the sale of the Firm
Selling Shareholder Shares to be sold by the
Selling Shareholder at such Closing Time and the
performance of this Agreement and the Transition
Agreement and the consummation of the Transactions
herein and therein contemplated will not conflict
with or (with or without the giving of notice or
the passage of time or both) result in a breach or
violation of any of the terms or provisions of, or
constitute a default under, any indenture,
mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which the Selling
Shareholder is a party or to which any of its
properties or assets is subject, nor will such
action conflict with or violate any provision of
the charter or bylaws or other governing
instruments of the Selling Shareholder or any
statute, rule or regulation or any order, judgment
or decree of any court or governmental agency or
body having jurisdiction over the Selling
Shareholder or any of the Selling Shareholder's
properties or assets.
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ii. No consent, approval, authorization, order or
declaration of or from, or registration,
qualification or filing with, any court or
governmental agency or body is required for the
issue and sale of the Firm Selling Shareholder
Shares being sold by the Selling Shareholder or the
consummation of the Transactions contemplated by
this Agreement or the Transition Agreement, except
the registration of such Firm Selling Shareholder
Shares under the Act and such as may be required
under state securities or blue sky laws in
connection with the offer, sale and distribution of
such Shares by the Underwriters.
iii. The Selling Shareholder has good and valid title to
the shares of common stock of Universal Fabricators
to be exchanged for the Firm Selling Shareholder
Shares pursuant to the Transition Agreement, and
immediately prior to such Closing Time will have,
good and valid title to the Firm Selling
Shareholder Shares, free and clear of all liens,
security interests, pledges, charges, encumbrances,
defects, shareholders' agreements, voting trusts,
equities or claims of any nature whatsoever; and,
upon delivery of such Firm Selling Shareholder
Shares against payment therefor as provided herein,
good and valid title to such Firm Selling
Shareholder Shares, free and clear of all liens,
security interests, pledges, charges, encumbrances,
defects, shareholders' agreements, voting trusts,
equities or claims of any nature whatsoever, will
pass to the several Underwriters.
In rendering the opinions set forth in Sections 7(b) and
(c), such counsel may rely on the following:
(1) 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, upon
an opinion or opinions (in form and substance
reasonably satisfactory to Underwriters' counsel)
of other counsel familiar with the applicable laws,
and
(2) as to matters of fact, to the extent
they deem proper, on certificates of responsible
officers of the Company or the Selling Shareholder,
as appropriate, and certificates or other written
statements of officers or departments of various
jurisdictions having custody of documents
respecting the existence or good standing of the
Company or the Selling Shareholder, as appropriate,
provided that copies of all such opinions,
statements or certificates shall be delivered to
Underwriters' counsel. The opinion of counsel for
the Company or the Selling Shareholder, as
appropriate, shall state that
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the opinion of any other counsel, or certificate or
written statement, on which such counsel is relying
is in form satisfactory to such counsel and that
you and they are justified in relying thereon.
d. At the Closing Time, you shall have received a favorable
opinion from ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P., counsel for the Underwriters, dated
as of the Closing Time, with respect to the incorporation of the Company,
the issuance and sale of the Shares, the Registration Statement, the
Prospectus and other related matters as the Underwriters may reasonably
require, and the Company shall have furnished to such counsel such
documents as they may reasonably request for the purpose of enabling them
to pass on such matters.
e. At the Closing Time, (i) the Registration Statement, any
462(b) Registration Statement, and the Prospectus, as they may then be
amended or supplemented, shall contain all statements that are required
to be stated therein under the 1933 Act and the 1933 Act Regulations and
in all material respects shall conform to the requirements of the 1933
Act and the 1933 Act Regulations; the Company shall have complied in all
material respects with Rule 430A (if it shall have elected to rely
thereon), and neither the Registration Statement, any 462(b) Registration
Statement, nor the Prospectus, as they may then be amended or
supplemented, shall 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 not misleading, (ii) there shall not have
been, since the respective dates as of which information is given in the
Registration Statement, any material adverse change in the business,
prospects, properties, assets, results of operations or condition
(financial or otherwise) of the Company, whether or not arising in the
ordinary course of business, (iii) no action, suit or proceeding at law
or in equity shall be pending or, to the best of the Company's knowledge,
threatened against the Company that would be required to be set forth in
the Prospectus other than as set forth therein and no proceedings shall
be pending or, to the best knowledge of the Company, threatened against
the Company before or by any federal, state or other commission, board or
administrative agency wherein an unfavorable decision, ruling or finding
could materially adversely affect the business, prospects, assets,
results of operations or condition (financial or otherwise) of the
Company, other than as set forth in the Prospectus, (iv) the Company
shall have complied with all agreements and satisfied all conditions on
their part to be performed or satisfied at or prior to the Closing Time,
and (v) the representations and warranties of the Company set forth in
Section 1 shall be accurate as though expressly made at and as of the
Closing Time. At the Closing Time, you shall have received a certificate
executed by the President and Chief Financial Officer of the Company
dated as of the Closing Time, to such effect and with respect to the
following additional matters: (A) the Registration Statement has become
effective under the 1933 Act, and no stop order suspending the
effectiveness of the Registration Statement or preventing or suspending
the use of the Prospectus has been issued, and no proceedings for that
purpose have been instituted or are pending or, to the best of their
knowledge, threatened under the 1933 Act; and (B) they have reviewed the
Registration Statement and the Prospectus and, when the Registration
Statement and any 462(b) Registration Statement became effective and at
all times subsequent thereto up to the delivery
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of such certificate, the Registration Statement, any 462(b) Registration
Statement and the Prospectus and any amendments or supplements thereto
contained all statements and information required to be included therein
or necessary to make the statements therein not misleading and neither
the Registration Statement, any 462(b) Registration Statement, nor the
Prospectus nor any amendment or supplement thereto included 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, and, since the effective date of the Registration
Statement, there has occurred no event required to be set forth in an
amended or supplemented Prospectus that has not been so set forth. The
representations and warranties of the Selling Shareholder set forth
herein shall be accurate as though expressly made at and as of the
Closing Time. At the Closing Time, you shall have received a certificate
executed on behalf of the Selling Shareholder to such effect.
f. You shall have received from Ernst & Young LLP letters
dated, respectively, the date hereof (or, if the Registration Statement
has been declared effective prior to the execution and delivery of this
Agreement, dated such effective date and the date of this Agreement) and
the Closing Time and the Date of Delivery, in form and substance
satisfactory to you, to the effect set forth in Annex I hereto. In the
event that the letters referred to in this subsection set forth any
changes, decreases or increases in the items specified in paragraphs iii
and iv of Annex I, it shall be a further condition to the obligations of
the Underwriters that (i) such letters shall be accompanied by a written
explanation by the Company as to the significance thereof, unless the
Underwriters deem such explanation unnecessary, and (ii) such changes,
decreases or increases do not, in your sole judgment, make it
impracticable or inadvisable to proceed with the purchase, sale and
delivery of the Shares as contemplated by the Registration Statement, as
amended as of the date of such letter.
g. At the Closing Time, you shall have received from Ernst &
Young LLP a letter, in form and substance satisfactory to you and dated
as of the Closing Time, to the effect that they reaffirm the statements
made in the letter furnished pursuant to subsection (f) above, except
that the specified date referred to shall be a date not more than five
days prior to the Closing Time.
h. At the Closing Time, counsel for the Underwriters shall
have been furnished with all such documents, certificates and opinions as
they may request for the purpose of enabling them to pass upon the
issuance and sale of the Shares as contemplated in this Agreement and the
matters referred to in Section 7(d) and in order to evidence the accuracy
and completeness of any of the representations, warranties or statements
of the Company, the performance of any of the covenants of the Company,
or the fulfillment of any of the conditions herein contained; and all
proceedings taken by the Company at or prior to the Closing Time in
connection with the authorization, issuance and sale of the Shares as
contemplated in this Agreement shall be reasonably satisfactory in form
and substance to you and to counsel for the Underwriters. The Company
will furnish you with such number of conformed copies of such opinions,
certificates, letters and documents as you shall reasonably request.
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i. The NASD, upon review of the terms of the public offering
of the Shares, shall not have objected to such offering, such terms or
the Underwriters' participation in the same.
j. Subsequent to the date hereof, there shall not have
occurred any of the following: (i) there has occurred or accelerated any
outbreak of hostilities or other national or international calamity or
crisis or change in economic or political conditions the effect of which
on the financial markets of the United States is such as to make it, in
your judgment, impracticable to market the Shares or enforce contracts
for the sale of the Shares, or (ii) trading in any securities of the
Company has been suspended by the Commission or by the Nasdaq National
Market, or if trading generally on the New York Stock Exchange or in the
over-the-counter market has been suspended, or limitations on prices for
trading (other than limitations on hours or numbers of days of trading)
have been fixed, or maximum ranges for prices for securities have been
required, by such exchange or the NASD or by order of the Commission or
any other governmental authority, or (iii) there has been any downgrading
in the rating of any of the Company's debt securities or preferred stock
by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the 1933 Act), or (iv) a
banking moratorium has been declared by federal or New York or Tennessee
authorities, or (v) any federal or state statute, regulation, rule or
order of any court or other governmental authority has been enacted,
published, decreed or otherwise promulgated which in your reasonable
opinion materially adversely affects or will materially adversely affect
the business or operations of the Company, or (vi) any action has been
taken by any federal, state or local government or agency in respect of
its monetary or fiscal affairs which in your reasonable opinion has a
material adverse effect on the securities markets in the United States.
k. All of the Transactions contemplated by the Transition
Agreement shall have occurred as of the Closing Time relating to the Firm
Shares.
If any of the conditions specified in this Section 8 shall not have been
fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by you on notice to the Company at any time at or
prior to the Closing Time, and such termination shall be without liability of
any party to any other party, except as provided in Section 7. Notwithstanding
any such termination, the provisions of Section 9 shall remain in effect.
The several obligations of the Underwriters to purchase Option Shares
hereunder are subject to the satisfaction on and as of any Date of Delivery for
Option Shares of the conditions set forth in this Section 8, except that, if
any Date of Delivery for Option Shares is other than the Closing Time, the
certificates, opinions and letters referred to in paragraphs (b), (c) and (d)
shall be revised to reflect the sale of Option Shares.
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Section 9. Indemnification and Contribution.
a. The Sellers will jointly and severally indemnify and hold
harmless the Selling Shareholder and each Underwriter against any losses,
claims, damages or liabilities, joint or several, to which the Selling
Shareholder or any such Underwriter may become subject under the 1933
Act, or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) (i) arise out of or are based upon any
breach of any warranty or covenant of the Sellers herein contained, (ii)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in (A) any Preliminary Prospectus,
the Registration Statement, any 462(b) Registration Statement or the
Prospectus, or any amendment or supplement thereto, or (B) any
application or other document, or any amendment or supplement thereto,
executed by the Company or based upon written information furnished by or
on behalf of the Company filed in any jurisdiction in order to qualify
the Shares under the securities or blue sky laws thereof or filed with
the Commission or any securities association or securities exchange (each
an "Application"), or (iii) arise out of or are based upon the omission
or alleged omission to state in any Preliminary Prospectus, the
Registration Statement, any 462(b) Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any Application a
material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse the Selling
Shareholder and each Underwriter for any legal or other expenses
reasonably incurred by the Selling Shareholder or any such Underwriter in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Sellers shall not be
liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement, any 462(b)
Registration Statement or the Prospectus, or any such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Company by the Selling Shareholder or any Underwriter
expressly for use therein; provided, however, that such indemnity with
respect to any Preliminary Prospectus shall not inure to the benefit of
an Underwriter (or any person controlling an Underwriter) from whom the
person asserting any such loss, claim, damage or liability purchased
shares of the Common Stock if such person did not receive a copy of the
Prospectus (or of the Prospectus, as amended or supplemented) at or prior
to the written confirmation of the sale of such shares to such person
where such delivery is required by the 1933 Act, unless such failure to
deliver was a result of the Company's failure to deliver the Prospectus
in accordance with Section 5(d) of this Agreement, and if the untrue
statement or omission of a material fact contained in such Preliminary
Prospectus was corrected in the Prospectus (or in the Prospectus, as
amended or supplemented). In addition to their other obligations under
this Section 9(a), the Sellers agree that, as an interim measure during
the pendency of any such claim, action, investigation, inquiry or other
proceeding arising out of or based upon any statement or omission, or any
alleged statement or omission, described in this Section 9(a), they will
reimburse the Selling Shareholder and the Underwriters on a monthly basis
for all reasonable legal and other expenses incurred in connection with
investigating or defending any such claim, action, investigation, inquiry
or
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other proceeding, notwithstanding the absence of a judicial determination
as to the propriety and enforceability of the Sellers' obligations to
reimburse either the Selling Shareholder or the Underwriters, or both,
for such expenses and the possibility that such payments might later be
held to have been improper by a court of competent jurisdiction;
provided, however, that the obligation of the Sellers to make any such
reimbursements shall be subject to receipt from the Selling Shareholder
and the Underwriters, as the case may be, of an undertaking to return any
such reimbursements to the extent that it is determined by a court of
competent jurisdiction that such indemnification of either the Selling
Shareholder or the Underwriters, or both, by the Sellers is not
permitted. Any such interim reimbursement payments that are not made to
the Selling Shareholder or any Underwriter within 30 days of receipt of a
request for reimbursement, and all appropriate supporting documentation,
shall bear interest at the prime rate (or reference rate or other
commercial lending rate for borrowers of the highest credit standing)
published from time to time by The Wall Street Journal (the "Prime Rate")
from the date of such request. This indemnity agreement shall be in
addition to any liabilities that the Sellers may otherwise have. The
Sellers will not, without the prior written consent of the Selling
Shareholder and each Underwriter, settle or compromise or consent to the
entry of any judgment in any pending or threatened action or claim or
related cause of action or portion of such cause of action in respect of
which indemnification may be sought hereunder (whether or not the Selling
Shareholder or any Underwriter is a party to such action or claim),
unless such settlement, compromise or consent includes an unconditional
release of the Selling Shareholder and each Underwriter from all
liability arising out of such action or claim (or related cause of action
or portion thereof).
The indemnity agreement in this Section 9(a) shall extend upon
the same terms and conditions to, and shall inure to the benefit of, each
of the officers and directors of the Selling Shareholder and each
Underwriter and each person, if any, who controls the Selling Shareholder
or any Underwriter within the meaning of the 1933 Act to the same extent
such indemnity agreement applies to the Selling Shareholder and the
Underwriters.
b. The Selling Shareholder will indemnify and hold harmless
the Sellers and each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which the Sellers or any Underwriter
may become subject under the 1933 Act, or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
(i) arise out of or are based upon any breach of any warranty or covenant
of the Selling Shareholder herein contained, (ii) arise out of or are
based upon any untrue statement or alleged untrue statement of a material
fact contained in (A) any Preliminary Prospectus, the Registration
Statement, any 462(b) Registration Statement or the Prospectus, or any
amendment or supplement thereto, or (B) any Application, or (iii) arise
out of or are based upon the omission or alleged omission to state in any
Preliminary Prospectus, the Registration Statement, any 462(b)
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any Application a material fact required to be stated therein
or necessary to make the statements therein not misleading, and will
reimburse the Sellers and each Underwriter for any legal or other
expenses reasonably incurred by either the Sellers or such Underwriter,
or both, in connection
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with investigating or defending any such loss, claim, damage, liability
or action; provided, however, that the Selling Shareholder shall not be
liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement, any 462(b)
Registration Statement, or the Prospectus, or any such amendment or
supplement, in reliance upon and in conformity with written information
furnished to the Sellers by any Underwriter expressly for use therein;
provided, further, however, that the Selling Shareholder shall be liable
hereunder in any case only to the extent of the total net proceeds from
the offering (before deducting expenses) received by the Selling
Shareholder from the Underwriters for the Firm Selling Shareholder Shares
sold by the Selling Shareholder hereunder, unless any such loss, claim,
damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in the
Registration Statement, any 462(b) Registration Statement or any
amendment or supplement thereto, any Preliminary Prospectus, the
Prospectus or any amendment or supplement thereto or any Application in
reliance upon and in conformity with written information furnished to any
of the Sellers by the Selling Shareholder expressly for use therein, in
which case such limitation of the liability of the Selling Shareholder
shall not apply. In addition to its other obligations under this
Section 9(b), the Selling Shareholder agrees that, as an interim measure
during the pendency of any such claim, action, investigation, inquiry or
other proceeding arising out of or based upon any statement or omission,
or any alleged statement or omission, described in this Section 9(b), the
Selling Shareholder will reimburse the Sellers and the Underwriters on a
monthly basis for all reasonable legal and other expenses incurred in
connection with investigating or defending any such claim, action,
investigation, inquiry or other proceeding, notwithstanding the absence
of a judicial determination as to the propriety and enforceability of the
Selling Shareholder's obligation to reimburse the Sellers or the
Underwriters for such expenses and the possibility that such payments
might later be held to have been improper by a court of competent
jurisdiction; provided, however, that the obligation of the Selling
Shareholder to make any such reimbursements shall be subject to receipt
from the Sellers and the Underwriters of an undertaking to return any
such reimbursements to the extent that it is determined by a court of
competent jurisdiction that such indemnification of the Sellers and the
Underwriters by the Selling Shareholder is not permitted. Any such
interim reimbursement payments that are not made to the Sellers or an
Underwriter within 30 days of receipt of a request for reimbursement, and
all appropriate supporting documentation, shall bear interest at the
Prime Rate from the date of such request. This indemnity agreement shall
be in addition to any liabilities that such Selling Shareholder may
otherwise have. The Selling Shareholder will not, without the prior
written consent of the Sellers and ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc., as
representative of the Underwriters, settle or compromise or consent to
the entry of any judgment in any pending or threatened action or claim or
related cause of action or portion of such cause of action in respect of
which indemnification may be sought hereunder (whether or not any of the
Sellers or any Underwriter is a party to such action or claim), unless
such settlement, compromise or consent includes an unconditional release
of the Sellers and each Underwriter from all liability arising out of
such action or claim (or related cause of action or portion thereof).
-32-
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The indemnity agreement in this Section 9(b) shall extend upon
the same terms and conditions to, and shall inure to the benefit of, each
of the officers and directors of the Sellers and each Underwriter and
each person, if any, who controls the Sellers and any Underwriter within
the meaning of the 1933 Act to the same extent such indemnity agreement
applies to the Sellers and the Underwriters.
c. Each Underwriter, severally but not jointly, will
indemnify and hold harmless the Sellers and the Selling Shareholder
against any losses, claims, damages or liabilities to which the Sellers
or the Selling Shareholder may become subject, under the 1933 Act, or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any breach of
any warranty or covenant by such Underwriter herein contained or any
untrue statement or alleged untrue statement of a material fact contained
in any Preliminary Prospectus, the Registration Statement, any 462(b)
Registration Statement or the Prospectus, or any amendment 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 such untrue statement or
alleged untrue statement or omission or alleged omission was made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or
any such amendment or supplement thereto in reliance upon and in
conformity with written information furnished to the Sellers by such
Underwriter expressly for use therein; and will reimburse the Sellers and
the Selling Shareholder for any legal or other expenses reasonably
incurred by either the Sellers or the Selling Shareholder, or both, in
connection with investigating or defending any such loss, claim, damage,
liability or action. In addition to its other obligations under this
Section 9(c), the Underwriters agree that, as an interim measure during
the pendency of any such claim, action, investigation, inquiry or other
proceeding arising out of or based upon any statement or omission, or any
alleged statement or omission, described in this Section 9(c), they will
reimburse the Sellers or the Selling Shareholder, or both, on a monthly
basis for all reasonable legal and other expenses incurred in connection
with investigating or defending any such claim, action, investigation,
inquiry or other proceeding, notwithstanding the absence of a judicial
determination as to the propriety and enforceability of their obligation
to reimburse either the Sellers or the Selling Shareholder, or both, for
such expenses and the possibility that such payments might later be held
to have been improper by a court of competent jurisdiction. Any such
interim reimbursement payments that are not made to the Sellers or the
Selling Shareholder within 30 days of receipt of a request for
reimbursement, and all appropriate documentation, shall bear interest at
the Prime Rate from the date of such request. This indemnity agreement
shall be in addition to any liabilities that the Underwriters may
otherwise have. No Underwriter will, without the prior written consent of
the Sellers and the Selling Shareholder, settle or compromise or consent
to the entry of judgment in any pending or threatened action or claim or
related cause of action or portion of such cause of action in respect of
which indemnification may be sought hereunder (whether or not the Sellers
or the Selling Shareholder is a party to such action or claim), unless
such settlement, compromise
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or consent includes an unconditional release of the Sellers and the
Selling Shareholder from all liability arising out of such action or
claim (or related cause of action or portion thereof).
The indemnity agreement in this Section 9(c) shall extend upon
the same terms and conditions to, and shall inure to the benefit of, each
of the officers and directors of the Sellers and the Selling Shareholder
and each person, if any, who controls the Sellers and the Selling
Shareholder within the meaning of the 1933 Act to the same extent such
indemnity agreement applies to the Sellers and the Selling Shareholder.
d. Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to
be made against the indemnifying party under such subsection, notify the
indemnifying party in writing of the commencement thereof; no
indemnification provided for in subsection (a), (b) or (c) shall be
available to any party who shall fail to give notice as provided in this
subsection (d) if the party to whom notice was not given was unaware of
the proceeding to which such notice would have related and was prejudiced
by the failure to give such notice, but the omission so to notify the
indemnifying party will not relieve the indemnifying party from any
liability that it may have to any indemnified party otherwise than under
Section 8. In case any such action shall be brought against any
indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party (which consent
shall not be unreasonably withheld), be counsel to the indemnifying
party), and, after notice from the indemnifying party to such indemnified
party of its election so to assume the defense thereof, the indemnifying
party shall not be liable to such indemnified party under such subsection
for any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable costs
of investigation, except that if the indemnified party has been advised
by counsel in writing that there are one or more defenses available to
the indemnified party which are different from or additional to those
available to the indemnifying party, then the indemnified party shall
have the right to employ separate counsel and in that event the
reasonable fees and expenses of such separate counsel for the indemnified
party shall be paid by the indemnifying party; provided, however, that if
the indemnifying party is the Company or the Selling Shareholder, then
the Company or the Selling Shareholder shall only be obligated to pay the
reasonable fees and expenses of a single law firm (and any reasonably
necessary local counsel) employed by all of the indemnified parties. The
indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
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e. It is agreed that any controversy arising out of the
operation of the interim reimbursement arrangements set forth in Section
9(a), (b) and (c) hereof, including the amounts of any requested
reimbursement payments, the method of determining such amounts and the
basis on which such amounts shall be apportioned among the indemnifying
parties, shall be settled by arbitration conducted pursuant to the Code
of Arbitration Procedure of the National Association of Securities
Dealers, Inc. Any such arbitration must be commenced by service of a
written demand for arbitration or a written notice of intention to
arbitrate, therein electing the arbitration tribunal. In the event the
party demanding arbitration does not make such designation of an
arbitration tribunal in such demand or notice, then the party responding
to said demand or notice is authorized to do so. Any such arbitration
will be limited to the operation of the interim reimbursement provisions
contained in Sections 9(a), (b) and (c) hereof and will not resolve the
ultimate propriety or enforceability of the obligation to indemnify for
expenses that is created by the provisions of Sections 9(a), (b) and (c).
f. In order to provide for just and equitable contribution in
circumstances under which the indemnity provided for in this Section 9 is
for any reason judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to
appeal or the denial of the right of appeal) to be unenforceable by the
indemnified parties although applicable in accordance with its terms, the
Sellers, the Selling Shareholder, and the Underwriters shall contribute
to the aggregate losses, liabilities, claims, damages and expenses of the
nature contemplated by such indemnity incurred by the Sellers, the
Selling Shareholder, and one or more of the Underwriters, as incurred, in
such proportions that (a) the Underwriters are responsible pro rata for
that portion represented by the percentage that the underwriting discount
appearing on the cover page of the Prospectus bears to the aggregate
public offering price (before deducting expenses) relating to all of the
Firm Shares appearing thereon, (b) the Sellers are responsible for that
portion represented by the percentage that the proceeds received by the
Sellers from the sale of the Firm Company Shares appearing on the cover
page of the Prospectus bears to the aggregate public offering price
(before deducting expenses) relating to all of the Firm Shares appearing
thereon and (c) the Selling Shareholder is responsible for that portion
represented by the percentage that the proceeds received by the Selling
Shareholder from the sale of the Firm Selling Shareholder Shares
appearing on the cover page of the Prospectus bears to the aggregate
public offering price (before deducting expenses) relating to all of the
Firm Shares appearing thereon, provided, however, that no person guilty
of fraudulent misrepresentations (within the meaning of Section 11(f) of
the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation; provided, further, that
if the allocation provided above is not permitted by applicable law, the
Sellers, the Selling Shareholder and the Underwriters shall contribute to
the aggregate losses in such proportion as is appropriate to reflect not
only the relative benefits referred to above but also the relative fault
of the Sellers, the Selling Shareholder and the Underwriters in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant
equitable considerations. Relative fault 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
-35-
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relates to information supplied by the Sellers, 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. The Sellers, the Selling Shareholder and the Underwriters
agree that it would not be just and equitable if contributions pursuant
to this Section 9(f) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other
method of allocation which does not take account of the equitable
considerations referred to above in this Section 9(f). The amount paid
or payable by a party as a result of the losses, claims, damages or
liabilities referred to above shall be deemed to include any legal or
other fees or expenses reasonably incurred by such party in connection
with investigating or defending such action or claim. Notwithstanding
the provisions of this Section 9(f), 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. The
obligations of the Sellers and the Selling Shareholder in this Section
9(f) to contribute are several, in proportion to the amount of the net
offering proceeds received by each, and not joint. The Underwriters'
obligations in this Section 9(f) to contribute are several in proportion
to their respective underwriting obligations and not joint. For purposes
of this Section 9(f), each person, if any, who controls an Underwriter
within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as such Underwriter, and each officer and director
of the Selling Shareholder and the Sellers, each officer of the Company
who signed the Registration Statement, and each person, if any, who
controls the Company, the Sellers or the Selling Shareholder, within the
meaning of Section 15 of the 1933 Act shall have the same rights to
contribution as the Company, the Sellers or the Selling Shareholder.
Section 10. Representations, Warranties and Agreements to Survive
Delivery. The representations, warranties, indemnities, agreements and other
statements of the Company, the Sellers and the Selling Shareholder, or their
respective officers set forth in or made pursuant to this Agreement will remain
operative and in full force and effect regardless of any investigation made by
or on behalf of the Sellers, the Selling Shareholder, or any Underwriter or
controlling person, and with respect to an Underwriter or the Sellers and the
Selling Shareholder, will survive delivery of and payment for the Shares or
termination of this Agreement.
Section 11. Effective Date of Agreement and Termination.
a. This Agreement shall become effective immediately as to
Sections 7 and 9 and, as to all other provisions, (i) if at the time of
execution of this Agreement the Registration Statement has not become
effective, at 10:00 a.m. New York, New York time, on the first full
business day following the effectiveness of the Registration Statement,
or (ii) if at the time of execution of this Agreement the Registration
Statement has been declared effective, at 10:00 a.m. New York, New York
time on the first full business day following the date of execution of
this Agreement; but this Agreement shall nevertheless become effective at
such earlier time
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after the Registration Statement becomes effective as you may determine
on and by notice to the Company or by release of any of the Shares for
sale to the public. For the purposes of this Section 11, the Shares
shall be deemed to have been so released upon the release of publication
of any newspaper advertisement relating to the Shares or upon the release
by you of telegrams (i) advising the Underwriters that the Shares are
released for public offering, or (ii) offering the Shares for sale to
securities dealers, whichever may occur first. By giving notice before
the time this Agreement becomes effective, you, as representative of the
several Underwriters, or the Company, may prevent this Agreement from
becoming effective, without liability of any party to any other party,
except that the Company shall remain obligated to pay costs and expenses
to the extent provided in Section 7 hereof.
b. You may terminate this Agreement, by notice to the
Company, at any time at or prior to the Closing Time (i) in accordance
with the penultimate paragraph of Section 8 of this Agreement, or (ii) if
there has been since the respective dates as of which information is
given in the Registration Statement, any material adverse change, or any
development involving a prospective material adverse change, in or
affecting the business, prospects, management, properties, assets,
results of operations or condition (financial or otherwise) of the
Company, whether or not arising in the ordinary course of business, or
(iii) if there has occurred or accelerated any outbreak of hostilities or
other national or international calamity or crisis or change in economic
or political conditions the effect of which on the financial markets of
the United States is such as to make it, in your judgment, impracticable
to market the Shares or enforce contracts for the sale of the Shares, or
(iv) if trading in any securities of the Company has been suspended by
the Commission or by the Nasdaq National Market or if trading generally
on the New York Stock Exchange or in the over-the-counter market has been
suspended, or limitations on prices for trading (other than limitations
on hours or numbers of days of trading) have been fixed, or maximum
ranges for prices for securities have been required, by such exchange or
the NASD or by order of the Commission or any other governmental
authority, or (v) if there has been any downgrading in the rating of any
of the Company's debt securities or preferred stock by any "nationally
recognized statistical rating organization" (as defined for purposes of
Rule 436(g) of the 1933 Act Regulations), or (vi) if a banking moratorium
has been declared by federal or New York or Tennessee authorities, or
(vii) any federal or state statute, regulation, rule or order of any
court or other governmental authority has been enacted, published,
decreed or otherwise promulgated which in your reasonable opinion
materially adversely affects or will materially adversely affect the
business or operations of the Company, or (viii) any action has been
taken by any federal, state or local government or agency in respect of
its monetary or fiscal affairs which in your reasonable opinion has a
material adverse effect on the securities markets in the United States.
c. If this Agreement is terminated pursuant to this Section
11, such termination shall be without liability of any party to any other
party, except to the extent provided in Section 7. Notwithstanding any
such termination, the provisions of Section 9 shall remain in effect.
-37-
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Section 12. Default by One or More of the Underwriters. If one or
more of the Underwriters shall fail at the Closing Time to purchase the Shares
that it or they are obligated to purchase pursuant to this Agreement (the
"Defaulted Securities"), you shall have the right, within 36 hours thereafter,
to make arrangements for one or more of the non- defaulting Underwriters, or
any other underwriters, to purchase all, but not less than all, of the
Defaulted Securities in such amounts as may be agreed upon and upon the terms
set forth in this Agreement; if, however, you have not completed such
arrangements within such 36-hour period, then:
a. If the aggregate number of Firm Shares which are Defaulted
Securities does not exceed 10% of the aggregate number of Firm Shares to
be purchased pursuant to this Agreement, the non-defaulting Underwriters
shall be obligated to purchase the full amount thereof in the proportions
that their respective underwriting obligation proportions bear to the
underwriting obligations of all non-defaulting Underwriters; and
b. If the aggregate number of Firm Shares which are Defaulted
Securities exceeds 10% of the aggregate number of Firm Shares to be
purchased pursuant to this Agreement, this Agreement shall terminate
without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section 12 shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default that does not result in a termination of
this Agreement, either you or the Company shall have the right to postpone the
Closing Time for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements, and the Company agrees promptly to file any
amendments to the Registration Statement or supplements to the Prospectus that
may thereby be made necessary. As used in this Agreement, the term
"Underwriter" includes any person substituted for an Underwriter under this
Section 12.
Section 13. Default by the Company. If the Company or the Selling
Shareholder shall fail at the Closing Time to sell and deliver the aggregate
number of Firm Shares that it is obligated to sell, then this Agreement shall
terminate without any liability on the part of any non-defaulting party, except
to the extent provided in Section 7 and except that the provisions of Section 9
shall remain in effect.
No action taken pursuant to this Section shall relieve the Company or the
Selling Shareholder from liability, if any, in respect to such default.
Section 14. Notices. All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered, mailed or transmitted by any standard form of telecommunication.
Notices to the Underwriters shall be directed c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company,
Inc., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇ (with
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a copy sent in the same manner to ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P., 4200 Texas Commerce
Tower, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇); and notices to the Company and the Selling Shareholder shall be
directed to them at, respectively, Jones, Walker, Waechter, Poitevent, Carrere
& ▇▇▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇ Incorporated, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attn: ▇▇▇▇ ▇. ▇▇▇▇▇▇ (with a copy sent in the
same manner to ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P., 4200 Texas Commerce Tower, ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇).
Section 15. Parties. This Agreement is made solely for the benefit of
and is binding upon the Underwriters, the Company and the Selling Shareholder,
to the extent provided in Section 9, any person controlling the Company or the
Selling Shareholder, or any of the Underwriters, the officers and directors of
the Company and the Selling Shareholder, and their respective executors,
administrators, successors and assigns and subject to the provisions of Section
9, no other person shall acquire or have any right under or by virtue of this
Agreement. The term "successors and assigns" shall not include any purchaser,
as such purchaser, from any of the several Underwriters of the Shares.
All of the obligations of the Underwriters hereunder are several and not
joint.
Section 16. Governing Law and Time. This Agreement shall be governed
by the laws of the State of Tennessee. Specified time of the day refers to
United States Eastern Time. Time shall be of the essence of this Agreement.
Section 17. Counterparts. This Agreement may be executed in one or
more counterparts and when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement.
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41
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, and upon the
acceptance hereof by ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc., on behalf of each of the
Underwriters, this instrument will become a binding agreement among the
Company, the Selling Shareholder, and the several Underwriters in accordance
with its terms. It is understood that your acceptance of this letter on behalf
of each of the Underwriters is pursuant to the authority set forth in the
Master Agreement among Underwriters, a copy of which shall be submitted to the
Company or the Selling Shareholder for examination, upon request, but without
warranty on your part as to the authority of the signers thereof.
Very truly yours,
UNIFAB INTERNATIONAL, INC.
By:
-------------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇▇ INCORPORATED
By:
-------------------------------------
Name:
Title:
UNIVERSAL FABRICATORS
INCORPORATED
By:
-------------------------------------
Name:
Title:
UNIVERSAL PARTNERS, INC.
By:
-------------------------------------
Name:
Title:
-40-
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The foregoing Agreement is hereby
confirmed and accepted as of the
date first written above:
▇▇▇▇▇▇ ▇▇▇▇▇▇ & COMPANY, INC.
▇▇▇▇▇▇▇▇ INC.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc.
By:
-----------------------------------
(Authorized Representative)
On behalf of each of the Underwriters
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SCHEDULE A
Number of
Firm Shares
Underwriter to be Purchased
----------- ---------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ & Company, Inc.
▇▇▇▇▇▇▇▇ Inc.
-----------
TOTAL 2,815,000
===========
44
SCHEDULE B
SELLING SHAREHOLDER
Number of
Firm Selling
Name Shareholder Shares
---- ------------------
▇▇▇▇▇▇▇▇▇ Incorporated 1,715,000
-----------------
TOTAL 1,715,000
=================
45
ANNEX I
Pursuant to Section 7(f) of the Underwriting Agreement, Ernst & Young
LLP shall furnish letters to the Underwriters to the effect that:
(i) they are independent public accountants with respect
to the Company and its consolidated subsidiaries within the meaning
the 1933 Act and the applicable published rules and regulations
thereunder;
(ii) in their opinion, the consolidated financial
statements and schedules audited by them and included in the
Prospectus, the Registration Statement and any 462(b) Registration
Statement comply as to form in all material respects with the
applicable accounting requirements of the 1933 Act and the related
published rules and regulations thereunder;
(iii) On the basis of limited procedures, not constituting
an audit in accordance with generally accepted auditing standards,
consisting of a reading of the unaudited financial statements and
other information referred to below, a reading of the latest available
interim financial statements of the Company and its subsidiaries,
inspection of the minute books of the Company and its subsidiaries
since the date of the latest audited financial statements included in
the Prospectus, inquiries of officials of the Company and its
subsidiaries responsible for financial accounting matters and such
other inquiries and procedures as may be specified in such letter,
nothing came to their attention that caused them to believe that:
(A) as of a specified date not more than 5 days
prior to the date of such letter, there were any changes in
the capital stock (other than the issuance of capital stock
upon exercise of options which were outstanding on the date of
the latest balance sheet included in the Prospectus) or any
increase in inventories or the long-term debt or short-term
debt of the Company and its Subsidiaries, or any decreases in
net current assets or net assets or other items specified by
the Underwriters, or any increases in any items specified by
the Underwriters, in each case as compared with amounts shown
in the latest balance sheet included in the Prospectus, except
in each case for changes, increases or decreases which the
Prospectus discloses have occurred or may occur or which are
described in such letter; and
(B) for the period from the date of the latest
financial statements included in the Prospectus to the
specified date referred to in Clause (C) there were any
decreases in net sales or operating income or the total or per
share amounts of net income or other items specified by the
Underwriters, or any increases in any items specified by the
Underwriters, in each case as compared with the comparable
period of the preceding year and with any other period of
corresponding length specified by the Underwriters, except in
each case for increases or decreases which the Prospectus
discloses have occurred or may occur which are described in
such letter; and
46
(iv) In addition to the audit referred to in their
report(s) included in the Prospectus and the limited procedures,
inspection of minute books, inquiries and other procedures referred to
in paragraph (iii) above, they have carried out certain specified
procedures, not constituting an audit in accordance with generally
accepted auditing standards, with respect to certain amounts,
percentages and financial information specified by the Underwriters
which are derived from the general accounting records of the Company
and its subsidiaries, included in the Registration Statement and the
Prospectus, or which appear in Part II of, or in exhibits and
schedules to, the Registration Statement specified by the
Underwriters, and have compared certain of such amounts, percentages
and financial information with the accounting records of the Company
and its subsidiaries and have found them to be in agreement; and
(v) On the basis of a reading of the unaudited pro forma
consolidated condensed financial statements included in the
Registration Statement and the Prospectus, carrying out certain
specified procedures that would not necessarily reveal matters of
significance with respect to the comments set forth in this paragraph
(v), inquiries of certain officials of the Company and its
consolidated Subsidiaries who have responsibility for financial and
accounting matters and proving the arithmetic accuracy of the
application of the pro forma adjustments to the historical amounts in
the unaudited pro forma consolidated condensed financial statements,
nothing came to their attention that caused them to believe that the
unaudited pro forma consolidated condensed financial statements do not
comply as to form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X or that the
pro forma adjustments have not been properly applied to the historical
amounts in the compilation of such statements.
References to the Registration Statement and the Prospectus in
this Annex I shall include any amendment or supplement thereto at the
date of such letter.
-2-