EXHIBIT 1.1
4,750,000 Shares of Class A Common Stock
XXXXXXX ENTERPRISES, INC.
UNDERWRITING AGREEMENT
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June __, 1997
BEAR, XXXXXXX & CO. INC.
XXXXXXX, XXXXX & CO.
ABN AMRO CHICAGO CORPORATION
XXXXXXX RICE & COMPANY L.L.C.
As Representatives of the
several Underwriters named in
Schedule I attached hereto
c/o Bear, Xxxxxxx & Co. Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Xxxxxxx Enterprises, Inc., a Louisiana corporation (the "Company"),
proposes to issue and sell to the Underwriters named in SCHEDULE I hereto (the
"Underwriters") 4,250,000 shares of Class A Common Stock, no par value per
share, of the Company (the "Class A Common Stock") and Xxxxx X. Xxxxxxx, Xx.
(the "Selling Shareholder"), proposes to sell to the Underwriters an additional
500,000 shares of Class A Common Stock, which aggregate of 4,750,000 shares of
Class A Common Stock is herein referred to as the "Firm Shares." In addition,
for the sole purpose of covering over-allotments in connection with the sale of
the Firm Shares, the Company proposes to issue and sell to the Underwriters, at
the option of the Underwriters, up to an additional 712,500 shares of Class A
Common Stock (the "Additional Shares"). The Firm Shares and any Additional
Shares purchased by the Underwriters are herein referred to as the "Shares."
The Shares are more fully described in the Registration Statement referred to
below.
I. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
SHAREHOLDER.
A. The Company represents and warrants to, and agrees with, the
several Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement, and may have filed an
amendment or amendments thereto, on Form S-3 (No. 333-______), for the
registration of the Shares under the Securities Act of 1933, as amended
(the "Act"). The Company will not, without your prior consent, file any
other amendment thereto or make any change in the form of final prospectus
included therein prior to the time it is first filed pursuant to Rule
424(b) of the General Rules and Regulations of the Commission under the Act
(the "Regulations"). Such registration statement, including the prospectus,
financial statements, schedules, exhibits and all other documents filed as
a part thereof, as amended, when it shall become effective, is herein
called the "Registration Statement" and shall include information with
respect to the Shares and the offering permitted to be omitted from the
Registration Statement when it becomes effective pursuant to Rule 430A or
Rule 434 of the Regulations; and the prospectus, in the form
included as part of the Registration Statement, or, if different, in the
form first filed with the Commission pursuant to Rule 424(b) of the
Regulations, is herein called the "Prospectus." The term "preliminary
prospectus" as used herein means each prospectus included in the
Registration Statement or any amendments thereto, before it became
effective under the Act and any prospectus filed with the Commission
pursuant to Rule 424(a) of the Regulations. Any reference herein to the
Registration Statement, any preliminary prospectus or the Prospectus shall
be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3, which were filed under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), on or
before the effective date of the Registration Statement, the date of such
preliminary prospectus or the date of the Prospectus, as the case may be,
and any reference herein to the terms "amend", "amendment", or "supplement"
with respect to the Registration Statement, any preliminary prospectus or
the Prospectus shall be deemed to refer to and include (i) the filing of
any document under the Exchange Act after the effective date of the
Registration Statement, the date of such preliminary prospectus or the date
of the Prospectus, as the case may be, which is incorporated therein by
reference and (ii) any such document so filed.
(b) When the Registration Statement shall become effective, when any
amendment to the Registration Statement becomes effective, when the
Prospectus is first filed with the Commission pursuant to Rule 424(b) of
the Regulations, when any supplement to or amendment of the Prospectus is
filed with the Commission, when any document filed under the Exchange Act
is filed, and at all times subsequent thereto and including the Closing
Date and the Additional Closing Date, if any (as hereinafter respectively
defined), and during such longer period as the Prospectus may be required
to be delivered in connection with sales by the Underwriters or a dealer,
the Registration Statement and the Prospectus and any amendments thereof
and supplements thereto complied or will comply in all material respects
with the applicable provisions of the Act and the Exchange Act and the
respective rules and regulations thereunder and will contain all statements
that are required to be stated therein in accordance with the Act and the
Regulations, and does not or will not contain an untrue statement of a
material fact and will not omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, and no event will have occurred that should have been set forth
in an amendment or supplement to the Registration Statement or Prospectus
that has not then been set forth in such an amendment or supplement. When
any related preliminary prospectus was first filed with the Commission
(whether filed as part of the registration statement for the registration
of the Shares or any amendment thereto or pursuant to Rule 424(a) of the
Regulations) and when any amendment thereof or supplement thereto was first
filed with the Commission, such preliminary prospectus and any amendments
thereof and supplements thereto complied in all material respects with the
applicable provisions of the Act and the Exchange Act and the respective
rules and regulations thereunder and did not contain an untrue statement of
a material fact and did not omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading. No representation and warranty is made in this subsection (b),
however, with respect to any information contained in or omitted from the
Registration Statement or the Prospectus or any related preliminary
prospectus or any amendment thereof or supplement thereto in reliance upon
and in conformity with information furnished in writing to the Company by
or on behalf of any Underwriter through you as herein stated, or by or on
behalf of the Selling Shareholder insofar as it relates to such Selling
Shareholder, in each case expressly for use in connection with the
preparation thereof. The documents incorporated by reference in the
Registration Statement and the Prospectus, when they were first filed with
the Commission, complied in all material respects with the applicable
provisions of the Exchange Act and the rules and regulations of the
Commission thereunder.
(c) Neither the Commission nor the Blue Sky or securities authority
of any jurisdiction has issued a stop order suspending the effectiveness of
the Registration Statement, preventing or suspending the use of any
preliminary prospectus, the Prospectus, the Registration Statement, or any
amendment or supplement thereto, refusing to permit the effectiveness of
the Registration Statement, or suspending the registration or qualification
of the Shares, nor, to the knowledge of the Company, has any of such
authorities instituted or threatened to institute any proceedings with
respect to a stop order.
(d) To the best knowledge of the Company, Coopers & Xxxxxxx L.L.P.,
who have certified the financial statements and supporting schedules, if
any, included in the Registration Statement or incorporated by reference,
are independent public accountants with regard to the Company as required
by the Act and the Regulations.
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(e) Subsequent to the respective dates as of which information is
given in the Registration Statement and the Prospectus, except as set forth
in the Registration Statement and the Prospectus, there has not been any
material adverse change or any development involving a material adverse
change, in the business, properties, financial condition, results of
operations or prospects of the Company and its subsidiaries taken as a
whole, whether or not arising from transactions in the ordinary course of
business, and since the date of the latest balance sheet presented or
incorporated by reference in the Registration Statement and the Prospectus,
neither the Company nor any of its subsidiaries has incurred or undertaken
any liabilities or obligations, direct or contingent, which are material to
the Company and its subsidiaries taken as a whole, except for liabilities
or obligations that were incurred or undertaken in the ordinary course of
business or are reflected in the Registration Statement and the Prospectus.
(f) The Company has all necessary corporate power and authority to
execute and deliver this Agreement and perform its obligations hereunder;
this Agreement and the transactions contemplated herein have been duly and
validly authorized, executed and delivered by the Company and is a valid
and binding obligation of the Company, enforceable against the Company in
accordance with its terms, except to the extent that rights to indemnity
hereunder may be limited by federal or state securities laws or the public
policy underlying such laws and except to the extent that enforcement may
be limited by bankruptcy, insolvency, reorganization or similar laws
affecting creditors' rights generally and subject to general principles of
equity.
(g) The execution, delivery, and performance of this Agreement and
the consummation of the transactions contemplated hereby will not (i)
conflict with or result in a breach of any of the terms and provisions of,
or constitute a default (or an event which with notice or lapse of time, or
both, would constitute a default) or require consent under, or result in
the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any of its subsidiaries, pursuant to
the terms of any agreement, instrument, franchise, license or permit to
which the Company or any of its subsidiaries is a party or by which any of
such corporations or their respective properties or assets may be bound, or
(ii) violate or conflict with any provision of the Articles of
Incorporation or Bylaws of the Company or any of its subsidiaries or any
judgment, decree, order, statute, rule or regulation of any court or any
public, governmental or regulatory agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their respective
properties or assets. No consent, approval, authorization, order,
registration, filing, qualification, license or permit of or with any court
or any public, governmental or regulatory agency or body having
jurisdiction over the Company or any of its subsidiaries or any of their
respective properties or assets is required for the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby, including the issuance, sale and delivery of the
Shares to be issued, sold and delivered by the Company hereunder, except
the registration under the Act of the Shares and such consents, approvals,
authorizations, orders, registrations, filings, qualifications, licenses
and permits as may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters.
(h) All of the outstanding shares of capital stock of the Company are
duly and validly authorized and issued, are fully paid and nonassessable
and were not issued in violation of or subject to any preemptive rights.
The Company had, at January 31, 1997, an authorized and outstanding
capitalization as set forth in the Registration Statement and the
Prospectus. The Shares to be sold by the Company, when delivered and sold
in accordance with this Agreement will be duly and validly issued and
outstanding, fully paid and nonassessable, and will not have been issued in
violation of or subject to any preemptive rights. None of such Shares when
delivered will be subject to any lien, claim, encumbrance, restriction or
any other claim of any third party. The Class A Common Stock, the Firm
Shares and the Additional Shares conform to the descriptions thereof
contained or incorporated by reference in the Registration Statement and
the Prospectus.
(i) Each of the Company and its subsidiaries has been duly organized
and is validly existing as a corporation in good standing under the laws of
its jurisdiction of incorporation. Each of the Company and its subsidiaries
is duly qualified and in good standing as a foreign corporation in each
jurisdiction in which the character or location of its properties (owned,
leased or licensed) or the nature or conduct of its business makes such
qualification necessary, except for those failures to be so qualified or in
good standing which will not in the aggregate have a material adverse
effect on the business, properties, financial condition, results of
operations or prospects of the Company and its subsidiaries taken as a
whole. Each of the Company and its subsidiaries has all requisite power and
authority, and all necessary consents, approvals, authorizations, orders,
registrations,
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qualifications, licenses and permits of and from any public, regulatory or
governmental agencies and bodies, to own, lease and operate its properties
and conduct its business as now being conducted and as described in the
Registration Statement and the Prospectus, and no such consent, approval,
authorization, order, registration, qualification, license or permit
contains a materially burdensome restriction not adequately disclosed in
the Registration Statement and the Prospectus.
(j) Neither the Company nor any of its subsidiaries (i) is in
violation of its corporate charter or bylaws, (ii) is in default under any
lease, license, indenture, mortgage, deed of trust, note, bank loan or
other evidence of indebtedness or any other agreement, understanding or
instrument to which the Company or any such subsidiary is a party or by
which the Company or any such subsidiary or any property of the Company or
any of such subsidiary may be bound or affected, which default may have a
material adverse effect on the business, properties, financial condition,
results of operations or prospects of the Company and its subsidiaries
taken as a whole, or (iii) is in violation of any law, ordinance,
governmental rule or regulation or court decree to which it may be subject
and has not failed to obtain any license, permit, certificate, franchise or
other governmental authorization or permit necessary to the ownership of
its property or to the conduct of its business, which violation or failure
may have a material adverse effect on the business, properties, financial
condition, results of operations or prospects of the Company and its
subsidiaries taken as a whole.
(k) Except as described in the Registration Statement and the
Prospectus, and any documents incorporated by reference therein (including
the notes to the financial statements included or incorporated by reference
therein), there are no outstanding warrants or options to purchase any
shares of the capital stock of the Company and there are no preemptive or
other rights to subscribe for or to purchase, and no restrictions upon, any
Class A Common Stock pursuant to the Company's Articles of Incorporation or
Bylaws or any agreement or other instrument to which the Company is a party
or by which it is bound.
(l) There is no litigation or proceeding pending or, to the knowledge
of the Company and the Selling Shareholder, threatened, before or by any
court or government agency, authority or body, or any arbitrator against
the Company or any of its subsidiaries that (i) may have a material adverse
effect on the business, properties, financial condition, results of
operations or prospects of the Company and its subsidiaries taken as a
whole, or (ii) is required to be disclosed in the Registration Statement or
the Prospectus and is not so disclosed and adequately summarized therein.
(m) The financial statements (including the related notes and
supporting schedules) included in the Registration Statement and the
preliminary prospectus or the Prospectus, or incorporated by reference
therein, present fairly in accordance with generally accepted accounting
principles the financial condition and results of operations of the
entities purported to be shown thereby, at the dates and for the periods
indicated, and have been prepared in conformity with generally accepted
accounting principles applied on a consistent basis throughout the periods
involved.
(n) No relationship, direct or indirect, exists between or among the
Company or any of its subsidiaries, on the one hand, and the directors,
officers or shareholders of the Company or any of its subsidiaries, on the
other hand, which is required by the Act or by the Regulations to be
described in the Registration Statement and the Prospectus that is not so
described or is not adequately described.
(o) There are no contracts or other documents that are required to be
filed as exhibits to the Registration Statement by the Act or by the
Regulations that have not been filed as exhibits to the Registration
Statement, or that are required to be summarized in the Prospectus that are
not so summarized or are not adequately summarized.
(p) No person has the right to request or require the Company or any
of its subsidiaries to register any capital stock for offering and sale
under the Act whether by reason of the filing of the Registration Statement
with the Commission or the issue and sale of the Shares or otherwise.
(q) The Company has not taken and shall not take, directly or
indirectly, any action designed to cause or result in, or that has
constituted or that might reasonably be expected to constitute, the
stabilization or manipulation of the price of the shares of Class A Common
Stock to facilitate the sale or resale of the Shares.
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(r) The Class A Common Stock is quoted on the Nasdaq National Market.
(s) The Company is not, and upon consummation of the transactions
contemplated hereby will not be, subject to registration as an "investment
company" under the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(t) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
B. The Selling Shareholder represents and warrants to, and agrees
with, the several Underwriters that:
(a) The execution, delivery and performance of this Agreement by the
Selling Shareholder and the consummation of the transactions contemplated
hereby will not (i) conflict with or result in the breach of any of the
terms and provisions of, or constitute a default (or an event which with
notice or lapse of time, or both, would constitute a default) or require
consent under, or result in the creation or imposition of any lien, charge
or encumbrance upon any property or assets of the Selling Shareholder
pursuant to the terms of any agreement, instrument, franchise, license or
permit to which the Selling Shareholder is a party or by which the Selling
Shareholder or any of the Selling Shareholder's property or assets may be
bound, or (ii) violate or conflict with any judgment, decree, order,
statute, rule or regulation of any court or any public, governmental or
regulatory agency or body having jurisdiction over the Selling Shareholder
or the Selling Shareholder's property or assets.
(b) The Selling Shareholder has, and at the time of delivery of the
Shares to be sold by the Selling Shareholder the Selling Shareholder will
have, full legal right, power, authority and capacity, and, except as
required under the Act and state securities and Blue Sky laws, all
necessary consents, approvals, authorizations, orders, registrations,
filings, qualifications, licenses and permits of and from all public,
regulatory or governmental agencies and bodies, as are required for the
execution, delivery and performance of this Agreement, and the consummation
of the transactions contemplated hereby, including the sale, assignment,
transfer and delivery of the Shares to be sold, assigned, transferred and
delivered by the Selling Shareholder hereunder.
(c) This Agreement has been duly and validly authorized, executed and
delivered by the Selling Shareholder and is a valid and binding obligation
of the Selling Shareholder, enforceable against the Selling Shareholder in
accordance with its terms, except to the extent that rights to indemnity
hereunder may be limited by applicable federal or state securities laws or
the public policy underlying such laws and except to the extent that
enforcement may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally and subject to general
principles of equity.
(d) The Selling Shareholder has good, valid and marketable title to
the Shares to be sold by the Selling Shareholder pursuant to this
Agreement, free and clear of all liens, encumbrances, claims, security
interests, restrictions on transfer, shareholders' agreements, voting
trusts and other defects in title whatsoever, with full power to deliver
such Shares hereunder, and, upon the delivery of and payment for such
Shares as herein contemplated, each of the Underwriters will receive good,
valid and marketable title to the Shares purchased by it from the Selling
Shareholder, free and clear of all liens, encumbrances, claims, security
interests, restrictions on transfer, shareholders' agreements, voting
trusts and other defects in title whatsoever.
(e) The Selling Shareholder has not taken and shall not take,
directly or indirectly, any action designed to cause or result in, or that
might reasonably be expected to constitute the stabilization or
manipulation of the price of the shares of Class A Common Stock to
facilitate the sale or resale of the Shares.
(f) When the Registration Statement shall become effective, when any
amendment to the Registration Statement becomes effective, when the
Prospectus is first filed with the Commission pursuant to Rule 424(b) of
the Regulations, when any amendment of or supplement to the Prospectus is
filed with the Commission and at all times subsequent thereto and including
the Closing Date, and during such longer periods as the Prospectus may be
required to be delivered in connection with sales by the Underwriter or a
dealer, such parts of the Registration Statement and the Prospectus and any
amendments thereof and supplements thereto as
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relate to the Selling Shareholder and are based upon information furnished
in writing to the Company by or on behalf of the Selling Shareholder
expressly for use therein will not contain an untrue statement of a
material fact and will not omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading, and no event will have occurred that should have been set forth
in an amendment or supplement to the Registration Statement or Prospectus
that has not then been set forth in such an amendment or supplement; and
when any related preliminary prospectus was first filed with the Commission
(whether filed as part of the registration statement for the registration
of the Shares or any amendment thereto or pursuant to Rule 424(a) of the
Regulations) and when any amendment thereof or supplement thereto was first
filed with the Commission, such parts of such preliminary prospectus and
any amendments thereof and supplements thereto as relate to the Selling
Shareholder and are based on information furnished in writing to the
Company by or on behalf of the Selling Shareholder expressly for use
therein did not contain an untrue statement of a material fact and did not
omit to state any material fact required to be stated therein or necessary
in order to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(g) The information pertaining to such Selling Shareholder under the
caption "Selling Shareholder" in the Prospectus is complete and accurate.
2. PURCHASE, SALE AND DELIVERY OF THE SHARES.
(a) On the basis of the representations, warranties, covenants and
agreements herein contained, but subject to the terms and conditions herein
set forth, the Company hereby agrees to sell 4,250,000 of the Firm Shares,
and the Selling Shareholder hereby agrees to sell 500,000 of the Firm
Shares, to the several Underwriters, and each Underwriter, severally and
not jointly, agrees to purchase the number of shares of the Firm Shares set
opposite that Underwriter's name in SCHEDULE I hereto, at $_____ per share.
Each Underwriter shall be obligated to purchase from the Company, and the
Selling Shareholder, that number of the Firm Shares which represents the
same proportion of the number of the Firm Shares to be sold by the Company
as the number of shares of the Firm Shares set forth opposite the name of
such Underwriter in SCHEDULE I represents of the total number of shares of
the Firm Shares to be purchased by all of the Underwriters pursuant to this
Agreement. The respective purchase obligations of the Underwriters with
respect to the Firm Shares shall be rounded among the Underwriters to avoid
fractional shares, as the Representatives may determine.
Delivery of certificates, and payment of the purchase price, for the
Firm Shares shall be made at the offices of Bear, Xxxxxxx & Co. Inc., 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other location as may be
mutually acceptable. Such delivery and payment shall be made at 10:00
a.m., New York time, on the third or fourth business day (as permitted
under Rule 15c6-1 of the Exchange Act) following the determination of the
initial public offering price pursuant to this SECTION 2 (unless such time
and date are postponed in accordance with the provisions of SECTION 9
hereof), or at such other time as shall be agreed upon by you, the Selling
Shareholder and the Company. The time and date of such delivery and
payment are herein called the "Closing Date." Delivery of the certificates
for the Firm Shares shall be made to you for the respective accounts of the
several Underwriters against payment by the several Underwriters through
the Representatives of the purchase price for the Firm Shares to the order
of the Company and the Selling Shareholder by certified or official bank
checks payable in New York Clearing House next-day funds.
Certificates for the Firm Shares shall be registered in such name or
names and in such authorized denominations as you may request in writing at
least two full business days prior to the Closing Date. The Company and
the Selling Shareholder will permit you to examine and package such
certificates for delivery at least one full business day prior to the
Closing Date.
(b) In addition, the Company hereby grants to the several
Underwriters the option to purchase up to 712,500 Additional Shares at the
same purchase price per share to be paid by the several Underwriters to the
Company for the Firm Shares as set forth in this SECTION 2, for the sole
purpose of covering over-allotments in the sale of Firm Shares by the
several Underwriters. This option may be exercised at any time (but not
more than once), in whole or in part, on or before the thirtieth day
following the date of the Prospectus, by written notice by you to the
Company. Such notice shall set forth the aggregate number of Additional
Shares as to which the option is being exercised and the date and time, as
reasonably determined by you, when the Additional Shares are to be
delivered (such date and time being herein sometimes referred to as the
"Additional
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Closing Date"); provided, however, that the Additional Closing Date shall
not be earlier than the Closing Date or earlier than the second full
business day after the date on which the option shall have been exercised
nor later than the eighth full business day after the date on which the
option shall have been exercised (unless such time and date are postponed
in accordance with the provisions of SECTION 9 hereof). Certificates for
the Additional Shares shall be registered in such name or names and in such
authorized denominations as you may request in writing at least two full
business days prior to the Additional Closing Date. The Company will permit
you to examine and package such certificates for delivery at least one full
business day prior to the Additional Closing Date.
The number of Additional Shares to be sold to each Underwriter shall
be the number that bears the same relationship to the aggregate number of
Additional Shares being purchased by the Underwriters, as the number of
Firm Shares set forth opposite the name of such Underwriter in SCHEDULE I
hereto (or such number increased as set forth in SECTION 9 hereof), bears
to the aggregate number of Firm Shares being purchased hereby, subject,
however, to such adjustments to eliminate any fractional shares as you in
your sole discretion shall make.
Payment for the Additional Shares shall be made by certified or
official bank check or checks, in New York Clearing House next-day funds,
payable to the order of the Company at the offices of Bear, Xxxxxxx & Co.
Inc., 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other location as
may be mutually acceptable, upon delivery of the certificates for the
Additional Shares to you for the respective accounts of the Underwriters.
3. OFFERING. Upon your authorization of the release of the Firm Shares,
the several Underwriters propose to offer the Shares for sale to the public upon
the terms set forth in the Prospectus.
4. COVENANTS OF THE COMPANY AND THE SELLING SHAREHOLDER.
A. The Company covenants and agrees with the several Underwriters
that:
(a) The Company will use its best efforts to cause the Registration
Statement and any amendment thereof to become effective as promptly as
possible and will notify you immediately (i) when the Registration
Statement and any amendments thereto become effective, (ii) of any request
by the Commission for any amendment of or supplement to the Registration
Statement or the Prospectus or for any additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or any post-effective amendment thereto or of
the initiation, or the threatening, of any proceedings therefor, (iv) of
the receipt of any comments from the Commission, and (v) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Shares for sale in any jurisdiction or the initiation
or threatening of any proceeding for that purpose. If the Commission shall
propose or enter a stop order at any time, the Company will make every
reasonable effort to prevent the issuance of any such stop order and, if
issued, to obtain the lifting of such order as soon as possible. The
Company will not file any amendment to the Registration Statement or any
amendment of or supplement to the Prospectus before or after the effective
date of the Registration Statement to which you shall reasonably object in
writing after being timely furnished in advance a copy thereof.
(b) If at any time when a prospectus relating to the Shares is
required to be delivered under the Act any event shall have oc curred as a
result of which the Prospectus as then amended or supplemented includes an
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading, or if it shall be necessary at any time to amend or supplement
the Prospectus or Registration Statement to comply with the Act or the
Regulations, or to file under the Exchange Act so as to comply therewith
any document incorporated by reference in the Registration Statement or the
Prospectus or in any amendment thereof or supplement thereto, the Company
will notify you promptly and prepare and file with the Commission an
appropriate amendment or supplement (in form and substance satisfactory to
you) that will correct such statement or omission or which will effect such
compliance and will use its best efforts to have any amendment to the
Registration Statement declared effective as soon as possible.
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(c) The Company will promptly deliver to you two signed copies of the
Registration Statement, including exhibits and all documents incorporated
by reference therein, and all amendments thereto, and the Company will
promptly deliver to each of the several Underwriters such number of copies
of any preliminary prospectus, the Prospectus, the Registration Statement,
and all amendments of and supplements to such documents, if any, and all
documents incorporated by reference in the Registration Statement and the
Prospectus or any amendment thereof or supplement thereto, without
exhibits, as you may reasonably request.
(d) The Company will endeavor in good faith, in cooperation with you,
at or prior to the time the Registration Statement becomes effective, to
qualify the Shares for offering and sale under the securities laws relating
to the offering or sale of the Shares in such jurisdictions as you may
designate and to maintain such qualification in effect for so long as
required for the distribution thereof.
(e) The Company will make generally available (within the meaning of
Section 11(a) of the Act) to its security holders and to you as soon as
practicable, but not later than 45 days after the end of the 12-month
period beginning after the date the Prospectus is filed with, or mailed for
filing to, the Commission pursuant to Rule 424(b), an earnings statement
(which need not be audited but which shall satisfy the provisions of
Section 11(a) of the Act) covering a period of at least 12 consecutive
months beginning after the effective date of the Registration Statement.
(f) During a period of 90 days from the date of the Prospectus, the
Company will not, without your prior written consent, issue, sell, offer or
agree to sell, or otherwise dispose of, directly or indirectly, any Class A
Common Stock (or any securities convertible into, exercisable for or
exchangeable for Class A Common Stock), and the Company will obtain the
under taking of each of its officers and directors and such of its
shareholders as have been heretofore designated by you not to engage in any
of the aforementioned transactions on their own behalf, other than the
Company's sale of Shares hereunder, the Company's issuance of Common Stock
upon the exercise of presently outstanding stock options, grants of
employee options pursuant to the Company's employee stock purchase plan and
in connection with acquisitions.
(g) During a period of three years from the effective date of the
Registration Statement, the Company will furnish to the Representatives
copies of (i) all reports to its shareholders, and (ii) all reports,
financial statements and proxy or information statements filed by the
Company with the Commission or any national securities exchange or
quotation system upon which the Class A Common Stock may be listed.
(h) The Company will not take, directly or indirectly, any action
that might reasonably be expected to cause or result in (i) stabilization
of the price of the Class A Common Stock to facilitate the sale or resale
of the Class A Common Stock, or (ii) manipulation of the price of the Class
A Common Stock.
(i) The Company will take, and will cause its subsidiaries to take,
such action as may be necessary to comply with the rules and regulations of
the Nasdaq National Market in respect of the offering of the Shares.
(j) The Company will apply the proceeds from the sale of the Shares
as set forth under "Use of Proceeds" in the Prospectus and will take such
steps as shall be necessary to ensure that neither the Company nor any
subsidiary shall become an "investment company" within the meaning of such
term under the Investment Company Act, and the rules and regulations
thereunder.
B. The Selling Shareholder covenants and agrees with the several
Underwriters that during a period of 90 days from the date of the Prospectus,
such Selling Shareholder will not, without your prior written consent, sell,
offer or agree to sell, or otherwise dispose of, directly or indirectly, any
Class A Common Stock (or any securities convertible into, exercisable for or
exchangeable for Class A Common Stock).
5. PAYMENT OF EXPENSES. Whether or not the transactions contemplated in
this Agreement are consummated or this Agreement is terminated, the Company and
the Selling Shareholder hereby severally agree to pay all costs and expenses
incident to the performance of the obligations of the Company and the Selling
Shareholder hereunder, including those in connection with (i) preparing,
printing, duplicating, filing and distributing the Registration Statement, as
originally filed, and all amendments thereof (including all exhibits thereto),
any preliminary prospectus, the Prospectus
-8-
and any amendments thereof or supplements thereto, the underwriting documents
(including this Agreement and the Agreement Among Underwriters) and all other
documents related to the public offering of the Shares (including those sup
plied to the Underwriters in quantities as hereinabove stated), (ii) the
issuance, transfer and delivery of the Shares to the Underwriters, including any
transfer or other taxes payable thereon, (iii) the qualification of the Shares
under state or foreign securities or Blue Sky laws, including the costs of
printing and mailing a preliminary and final "Blue Sky Survey" and the fees of
counsel for the Underwriters and such counsel's disbursements in relation
thereto, and (iv) the review of the terms of the public offering of the Shares
by the National Association of Securities Dealers, Inc.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
several Underwriters to purchase and pay for the Firm Shares and the Additional
Shares, as provided herein, shall be subject to the accuracy of the
representations and warranties of the Company and the Selling Shareholder herein
contained, as of the date hereof and as of the Closing Date (or in the case of
the Additional Shares as of the Additional Closing Date), to the absence from
any certificates, opinions, written statements or letters furnished to you or to
Jenkens & Xxxxxxxxx, a Professional Corporation ("Underwriters' Counsel"),
pursuant to this SECTION 6 of any misstatement or omission, to the performance
by the Company and the Selling Shareholder of their respective obligations
hereunder, and to the following additional conditions:
(a) The Registration Statement shall have become effective not later
than 5:30 p.m., New York time, on the day following the date of this
Agreement or at such later time and date as shall have been consented to in
writing by you, and, at or prior to the Closing Date and the Additional
Closing Date, as the case may be, no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
thereof shall have been issued and no proceedings therefor shall have been
initiated or threatened by the Commission.
(b) At the Closing Date and the Additional Closing Date, you shall
have received the opinion of Jones, Walker, Waechter, Poitevent, Carrere &
Xxxxxxx, L.L.P., counsel for the Company, dated the Closing Date, or the
Additional Closing Date, as the case may be, addressed to the Underwriters
and in form and substance satisfactory to Underwriters' Counsel, to the
effect that:
(i) Each of the Company and its subsidiaries listed on SCHEDULE
II hereto (the "Significant Subsidiaries"), has been duly organized
and is validly existing as a corporation in good standing under the
laws of its jurisdiction of incorporation. Each of the Company and
the Significant Subsidiaries is duly qualified and in good standing as
a foreign corporation in each jurisdiction in which the character or
location of its properties (owned, leased or licensed) or the nature
or conduct of its business makes such qualification necessary, except
for those failures to be so qualified or in good standing that will
not in the aggregate have a material adverse effect on the business,
properties, financial condition, results of operations or prospects of
the Company and its subsidiaries, taken as a whole. Each of the
Company and the Significant Subsidiaries has all requisite corporate
authority to own, lease and license its respective properties and
conduct its business as now being conducted and as described in the
Registration Statement and the Prospectus. Except as otherwise
indicated in SCHEDULE II, all of the issued and outstanding capital
stock of each Significant Subsidiary of the Company is held of record
by the Company.
(ii) The Company has authorized capital stock as set forth in the
Registration Statement and the Prospectus. All of the outstanding
shares of capital stock of the Company are duly and validly authorized
and issued, are fully paid and nonassessable and were not issued in
violation of or subject to any preemptive rights. The Shares to be
delivered on the Closing Date, or Additional Closing Date, as the case
may be, have been duly and validly authorized and, when delivered in
accordance with this Agreement, will be duly and validly issued, fully
paid and nonassessable and will not have been issued in violation of
or subject to any preemptive rights. Each of the Underwriters will
receive good, valid and marketable title to the Firm Shares and the
Additional Shares being sold by the Company here under, free and
clear of all liens, encumbrances, claims, security interests,
restrictions on transfer, shareholders' agreements, voting trusts and
other defects of title whatsoever.
(iii) The capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof
incorporated by reference in the Registration Statement and the
Prospectus; the certificates for the Shares are in proper form under
Louisiana law.
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(iv) The Class A Common Stock is listed on the Nasdaq National
Market.
(v) Such counsel does not know of any contracts or other
documents that are required to be filed as exhibits to the
Registration Statement by the Act or by the Regulations that have not
been filed as exhibits to the Registration Statement, or that are
required to be summarized in the Prospectus that are not so
summarized.
(vi) To the best of such counsel's knowledge, the Company is not
in violation of its corporate charter or bylaws and neither the
Company nor any of its Significant Subsidiaries is in default under
(and no event has occurred which with notice, lapse of time, or both,
would constitute a breach of, or a default under), any agreement,
license, mortgage, deed of trust, bank loan, credit agreement,
indenture or instrument filed as an exhibit to the Registration
Statement, which default would have a material adverse affect on the
business, properties, financial condition, results of operations or
prospects of the Company and its subsidiaries taken as a whole.
(vii) The Company has all necessary corporate power to execute
and deliver this Agreement and to perform its obligations (including
the issuance, sale and delivery of the Shares to be sold by the
Company) hereunder.
(viii) This Agreement has been duly and validly authorized,
executed and delivered by the Company and is a valid and binding obligation
of the Company, enforceable against the Company in accordance with its
terms, except to the extent that rights to indemnity hereunder may be
limited by federal or state securities laws or the public policy underlying
such laws and except to the extent that enforcement may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally and subject to general principles of equity.
(ix) To the best of such counsel's knowledge, there is no
litigation or governmental or other action, suit, proceeding or
investigation before any court or before or by any public, regulatory or
governmental agency or body pending or threatened against, or involving the
properties or business of, the Company or, to the best knowledge of such
counsel, any of its Significant Subsidiaries, which, if resolved against
the Company or such subsidiary, individually or, to the extent involving
related claims or issues, in the aggregate, is of a character required to
be disclosed in the Registration Statement and the Prospectus, which has
not been properly disclosed therein.
(x) The execution, delivery, and performance of this Agreement
and the consummation of the transactions contemplated hereby by the Company
will not (A) conflict with or result in a breach of any of the terms and
provisions of, or constitute a default (or an event which with notice or
lapse of time, or both, would constitute a default) or require consent
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
Significant Subsidiaries pursuant to the terms of any agreement or
instrument filed as an exhibit to the Registration Statement (or as an
exhibit to the Company's Annual Report on Form 10-K for the fiscal year
ended October 31, 1996 or Quarterly Reports on Form 10-Q for the quarters
ended January 31, 1997 and April 30, 1997, respectively) or any material
franchise, license or permit known to such counsel to which the Company or
any of its Significant Subsidiaries is a party or by which any of such
corporations or their respective properties or assets may be bound, or (B)
violate or conflict with any provision of the Articles of Incorporation or
Bylaws of the Company or any of its Significant Subsidiaries, or, to the
best knowledge of such counsel, any judgment, decree, order, statute, rule
or regulation of any court or any public, governmental or regulatory agency
or body having jurisdiction over the Company or any of its Significant
Subsidiaries or any of their respective properties or assets. To the best
knowledge of such counsel, no consent, approval, authorization, order,
registration, filing, qualification, license or permit of or with any court
or any public, governmental, or regulatory agency or body having
jurisdiction over the Company or any of its Significant Subsidiaries or any
of their respective properties or assets is required for the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated hereby, except for (1) such as may be required
under state securities or Blue Sky laws in connection with the purchase and
distribution of
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the Shares by the Underwriters (as to which such counsel need express no
opinion), and (2) such as have been made or obtained under the Act.
(xi) The Registration Statement and the Prospectus and any
amendments thereof or supplements thereto (other than the financial
statements and schedules and other financial and statistical data included
or incorporated by reference therein, as to which no opinion need be
rendered) comply as to form in all material respects with the requirements
of the Act and the Regulations. The documents filed under the Exchange Act
and incorporated by reference in the Registration Statement and the
Prospectus and in any amendment thereof or supplement thereto (other than
the financial statements and schedules and other financial and statistical
data included or incorporated by reference therein, as to which no opinion
need be rendered) comply as to form in all material respects with the
Exchange Act and the rules and regulations of the Commission thereunder.
(xii) The Registration Statement is effective under the Act,
and, to the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any post-effective amendment
thereof has been issued and no proceedings therefor have been initiated or
threatened by the Commission.
In addition, such counsel shall state that such counsel has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company and
representatives of the Underwriters at which the contents of the Registration
Statement and the Prospectus were discussed and, although such counsel is not
passing upon, and does not assume responsibility for and has not verified, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, on the basis of the foregoing (relying
as to materiality upon the opinions of officers and other representatives of the
Company) and without independent check or verification, nothing has come to the
attention of such counsel that leads it to believe that the Registration
Statement or any amendment thereto at the time such Registration Statement or
amendment became effective contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus or any
supplement thereto at the date of such Prospectus or such supplement, and at all
times up to and including the Closing Date or the Additional Closing Date, as
the case may be, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading (it being understood that such counsel need express no opinion
with respect to the financial statements and schedules and other financial and
statistical data included or incorporated by reference in the Registration
Statement or the Prospectus or in any amendments thereof or supplements
thereto).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
jurisdictions in which they are admitted, to the extent such counsel deems
proper and to the extent specified in such opinion, if at all, upon an opinion
or opinions (in form and substance reasonably satisfactory to Underwriters'
Counsel) of other counsel reasonably acceptable to Underwriters' Counsel,
familiar with the applicable laws; (B) as to matters of fact, to the extent they
deem prop er, on certificates of responsible officers of the Company and
certificates or other written statements of officers of departments of various
jurisdictions having custody of documents respecting the corporate existence or
good standing of the Company and its subsidiaries, provided that copies of any
such statements or certificates shall be delivered to Underwriters' Counsel. The
opinion of such counsel for the Company shall state that the opinion of any such
other counsel is in form satisfactory to such counsel and, in their opinion, you
and they are justified in relying thereon.
(c) At the Closing Date you shall have received the favorable opinion of
Xxxxxxx, Xxxxx & Cleveland, counsel for the Selling Shareholder, dated the
Closing Date, addressed to the Underwriters and in form and substance
satisfactory to Under writers' Counsel, to the effect that:
(i) This Agreement has been duly and validly authorized, executed and
delivered by the Selling Shareholder and is a valid and binding obligation of
the Selling Shareholder, enforceable against the Selling Shareholder in
accordance with its terms, except to the extent that rights to indemnity
hereunder may be limited by applicable federal or state securities laws or the
public policy underlying
-11-
such laws and except to the extent that enforcement may be limited by
bankruptcy, insolvency, reorganization or similar laws affecting creditors'
rights generally and subject to general principles of equity.
(ii) To the best knowledge of such counsel, the Selling Shareholder
has all requisite power and authority, and all necessary consents,
approvals, authorizations, orders, registrations, filings, qualifications,
licenses and permits of and from all courts and all public, governmental or
regulatory agencies and bodies as are required for the execution, delivery
and performance of this Agreement, and the consummation of the transactions
contemplated hereby, except for (1) such as may be required under state
securities or Blue Sky laws in connection with the purchase and
distribution of the Shares by the Underwriters (as to which such counsel
need express no opinion), and (2) such as have been made or obtained under
the Act.
(iii) Upon the delivery of and payment for the Shares to be sold by
the Selling Shareholder pursuant to this Agreement as herein contemplated,
each of the Underwriters who is not aware of any adverse claim with respect
thereto will receive good, valid and marketable title to the Shares
purchased by it from the Selling Shareholder, free and clear of all liens,
encumbrances, claims, security interests, restrictions on transfer,
shareholders' agreements, voting trusts and other defects in title
whatsoever.
(iv) The execution, delivery and performance of this Agreement by the
Selling Shareholder and the consummation of the transactions contemplated
hereby will not violate or conflict with, to the best knowledge of such
counsel, any judgment, decree, order, statute, rule or regulation of any
court or any public, governmental or regulatory agency or body having
jurisdiction over the Selling Shareholder or any of his properties or
assets.
(v) The Statements in the Prospectus under the caption "Selling
Shareholder," insofar as such statements constitute a summary of the
matters referred to therein, fairly present the information called for with
respect to such matters in all material respects.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
jurisdictions in which they are admitted, to the extent such counsel deems
proper and to the extent specified in such opinion, if at all, upon an opinion
or opinions (in form and substance reasonably satisfactory to Underwriters'
Counsel) of other counsel reasonably acceptable to Underwriters' Counsel,
familiar with the applicable laws; (B) as to matters of fact, to the extent they
deem prop er, on certificates of the Selling Shareholder, provided that copies
of any such statements or certificates shall be delivered to Underwriters'
Counsel. The opinions of such counsel for the Selling Shareholder shall state
that the opinion of any such other counsel is in form satisfactory to such
counsel and, in their opinion, you and they are justified in relying thereon.
(d) At the Closing Date and the Additional Closing Date, you shall have
received a certificate of the President and the Chief Financial Officer of the
Company, dated the Closing Date, or Additional Closing Date, as the case may be,
to the effect that the condition set forth in subsection (a) of this SECTION 6
has been satisfied, that as of the date hereof and as of the Closing Date, or
Additional Closing Date, as the case may be, the representations and warranties
of the Company set forth in SECTION 1 hereof are accurate, and that as of the
Closing Date, or the Additional Closing Date, as the case may be, the
obligations of the Company to be performed hereunder on or prior thereto have
been duly performed.
(e) At the Closing Date, you shall have received a certificate executed by
the Selling Shareholder, dated the Closing Date, to the effect that the
representations and warranties of such Selling Shareholder set forth in SECTION
1 hereof are accurate, and that as of the Closing Date, the obligations of such
Selling Shareholder to be performed hereunder on or prior thereto have been duly
performed.
(f) At the time this Agreement is executed, and at the Closing Date and
the Additional Closing Date, you shall have received a letter from Coopers &
Xxxxxxx L.L.P., independent public accountants for the Company, dated,
respectively, as of the date of this Agreement and as of the Closing Date, or
Additional
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Closing Date, as the case may be, addressed to the Underwriters and in form and
substance satisfactory to you, to the effect that: (i) they are independent
certified public accountants with respect to the Company within the meaning of
the Act and the applicable published rules and regulations of the Commission
thereunder and stating that the answer to Item 10 of the Registration Statement
is correct insofar as it relates to them; (ii) stating that, in their opinion,
the financial statements and schedules, if any, of the Company included or
incorporated by reference in the Registration Statement and the Prospectus and
covered by their opinion therein comply as to form in all material respects with
the applicable accounting requirements of the Act and the Exchange Act and the
applicable published rules and regulations of the Commission thereunder; (iii)
on the basis of procedures (but not an examination made in accordance with
generally accepted auditing standards) consisting of a reading of the latest
available interim consolidated financial statements of the Company and its
subsidiaries, a reading of the minutes of meetings and consents of the
shareholders and boards of directors of the Company and its subsidiaries and the
committees of such boards subsequent to the date of the most recent audited
consolidated balance sheet of the Company and its subsidiaries included or
incorporated by reference in the Registration Statement and the Prospectus,
inquiries of officers and other employees of the Company and its subsidiaries
who have responsibility for financial and accounting matters of the Company and
its subsidiaries with respect to transactions and events subsequent to the date
of the most recent audited consolidated balance sheet of the Company and its
subsidiaries included or incorporated by reference in the Registration Statement
and the Prospectus, and other specified procedures and inquiries to a date not
more than five days prior to the date of such letter, nothing has come to their
attention that would cause them to believe that: (A) the unaudited consolidated
financial statements and schedules, if any, of the Company included or
incorporated by reference in the Registration Statement and the Prospectus do
not comply as to form in all material respects with the applicable accounting
requirements of the Act and the Exchange Act and the applicable published rules
and regulations of the Commission thereunder or that such unaudited consolidated
financial statements are not fairly presented in conformity with generally
accepted accounting principles except to the extent certain footnote disclosures
have been omitted in accordance with applicable rules of the Commission under
the Exchange Act applied on a basis substantially consistent with that of the
audited consolidated financial statements included or incorporated by reference
in the Registration Statement and the Prospectus; (B) with respect to the period
subsequent to the date of the most recent consolidated balance sheet of the
Company and its subsidiaries included or incorporated by reference in the
Registration Statement and the Prospectus, there were, as of the date of the
most recent available monthly consolidated financial statements of the Company
and its subsidiaries, if any, and as of a specified date not more than five days
prior to the date of such letter, any changes in the capital stock or long-term
indebtedness of the Company or any decrease in the net current assets or
shareholders' equity of the Company, in each case as compared with the amounts
shown in the most recent balance sheet included or incorporated by reference in
the Registration Statement and the Prospectus, except for changes or decreases
that the Registration Statement and the Prospectus disclose have occurred or may
occur or which are set forth in such letter; or (C) that during the period from
the date following the date of the most recent consolidated balance sheet of the
Company and its subsidiaries included or incorporated by reference in the
Registration Statement and the Prospectus to the date of the most recent
available monthly consolidated financial statements of the Company and its
subsidiaries, if any, and to a specified date not more than five days prior to
the date of such letter, there was any decrease, as compared with the
corresponding period in the prior fiscal year, in total revenues, or total or
per share net income, except for decreases which the Registration Statement and
the Prospectus disclose have occurred or may occur or which are set forth in
such letter; and (iv) stating that they have compared specific dollar amounts,
numbers of shares, percentages of revenues and earnings, and other financial
information pertaining to the Company and its subsidiaries set forth in the
Registration Statement and the Prospectus, which have been specified by you
prior to the date of this Agreement, to the extent that such amounts, numbers,
percentages, and information may be derived from the general accounting and
financial records of the Company and its subsidiaries or from schedules
furnished by the Company, and excluding any questions requiring an
interpretation by legal counsel, with the results obtained from the application
of specified readings, inquiries, and other appropriate procedures specified by
you (which procedures do not constitute an examination in accordance with
generally accepted auditing standards) set forth in such letter, and found them
to be in agreement.
(g) All proceedings taken in connection with the sale of the Firm Shares
and the Additional Shares as herein contemplated shall be satisfactory in form
and substance to you and to Underwriters' Counsel, and the Underwriters shall
have received from said Underwriters' Counsel a favorable opinion, dated as of
the Closing Date, and the Additional Closing Date, as the case may be, with
respect to the issuance and sale of the Shares, the Registration Statement and
the Prospectus and such other related matters, as you may reasonably require,
-13-
and the Company and the Selling Shareholder shall have furnished to
Underwriters' Counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(h) Prior to the Closing Date and the Additional Closing Date the Company
and the Selling Shareholder shall have furnished to you such further
information, certificates and documents as you may reasonably request.
If any of the conditions specified in this SECTION 6 shall not have been
fulfilled when and as required by this Agreement, or if any of the certificates,
opinions, written statements or letters furnished to you or to Underwriters'
Counsel pursuant to this SECTION 6 shall not be in all material respects
reasonably satisfactory in form and substance to you and to Underwriters'
Counsel, all obligations of the Underwriters hereunder may be canceled by you
at, or at any time prior to, the Closing Date, and the obligations of the
Underwriters to purchase the Additional Shares may be canceled by you at, or at
any time prior to, the Additional Closing Date. Notice of such cancellation
shall be given to the Company and the Selling Shareholder in writing, or by
telephone, telex or telegraph, confirmed in writing.
7. INDEMNIFICATION.
(a) The Company agrees and the Selling Shareholder agrees to
indemnify and hold harmless each Underwriter, its officers, directors,
partners, employees, agents and counsel, and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Act or
Section 20(a) of the Exchange Act against any and all losses, liabilities,
claims, damages and expenses whatsoever as incurred (including but not
limited to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in
settlement of any claim or litigation), joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
Registration Statement for the registration of the Shares, as originally
filed or any amendment thereof, or any related preliminary prospectus or
the Prospectus, or in any supplement thereto or amendment thereof, or arise
out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading; provided, however, that the Company and
the Selling Shareholder will not be liable in any such case to the extent
but only to the extent that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein, in reliance
upon and in conformity with written information furnished to the Company by
or on behalf of any Underwriter through you expressly for use therein;
further, provided, however, that the indemnification obligation of the
Selling Shareholder shall be limited in amount to 67% of the total net
proceeds to the Selling Shareholder (before deducting expenses) received by
the Selling Shareholder from the sale by the Selling Shareholder of Shares
pursuant to this Agreement. This indemnity agreement will be in addition to
any liability that the Company and the Selling Shareholder may otherwise
have, including under this Agreement.
(b) Each Underwriter severally, and not jointly, agrees to indemnify
and hold harmless the Company, the Selling Shareholder, each of the
directors of the Company, each of the officers of the Company who shall
have signed the Registration Statement, its employees, agents and counsel,
and each other person, if any, who controls the Company within the meaning
of Section 15 of the Act or Section 20(a) of the Exchange Act, against any
losses, liabilities, claims, damages and expenses whatsoever (including but
not limited to attorneys' fees and any and all expenses whatsoever incurred
in investigating, preparing or defending against any litigation, commenced
or threatened, or any claim whatsoever, and any and all amounts paid in
settlement of any claim or litigation), joint or several, to which they or
any of them may become subject under the Act, the Exchange Act or
otherwise, insofar as such losses, liabilities, claims, damages or expenses
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
registration statement for the registration of the Shares, as originally
filed or any amendment thereof, or any related preliminary prospectus or
the Prospectus, or in any amendment thereof or supplement thereto, or arise
out of or are based upon the omission or alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to
the extent, that any such loss, liability, claim, damage or expense arises
out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in
-14-
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter through you expressly for use
therein; provided, however, that in no case shall any Underwriter be liable
or responsible for any amount in excess of the underwriting discount
applicable to the Shares purchased by such Underwriter hereunder. This
indemnity will be in addition to any liability which any Underwriter may
otherwise have including under this Agreement. The Company and the Selling
Shareholder acknowledge that the statements set forth in the last paragraph
of the cover page and in the first six paragraphs under the caption
"Underwriting" in the Prospectus constitute the only information furnished
in writing by or on behalf of any Underwriter expressly for use in the
Registration Statement relating to the Shares as originally filed, or in
any amendment thereof, any related preliminary prospectus or the Prospectus
or in any amendment thereof or supplement thereto, as the case may be.
(c) Promptly after receipt by an indemnified party under subsection
(a) or (b) above of notice of the commencement of any action, such
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under such subsection, notify each party
against whom indemnification is to be sought in writing of the commencement
thereof (but the failure so to notify an indemnifying party shall not
relieve it from any liability which it may have under this SECTION 7 except
to the extent that it has been prejudiced in any material respect by such
failure or from any liability which it may have otherwise). In case any
such action is brought against any indemnified party, and it notifies an
indemnifying party of the commencement thereof, the indemnifying party will
be entitled to participate therein, and to the extent it may elect by
written notice delivered to the indemnified party promptly after receiving
the aforesaid notice from such indemnified party, to assume the defense
thereof with counsel satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties shall have
the right to employ its or their own counsel in any such case, but the fees
and expenses of such counsel shall be at the expense of such indemnified
party or parties unless (i) the employment of such counsel shall have been
authorized in writing by one of the indemnifying parties in connection with
the defense of such action, (ii) the indemnifying parties shall not have
employed counsel to have charge of the defense of such action within a
reasonable time after notice of commencement of the action, or (iii) such
indemnified party or parties shall have reasonably concluded that there may
be defenses available to it or them that are different from or additional
to those available to one or all of the indemnifying parties (in which case
the indemnifying parties shall not have the right to direct the defense of
such action on behalf of the indemnified party or parties), in any of which
events such fees and expenses shall be borne by the indemnifying parties.
Anything in this subsection to the contrary notwithstanding, an
indemnifying party shall not be liable for any settlement of any claim or
action effected without its written consent; provided, however, that such
consent was not unrea sonably withheld.
8. CONTRIBUTION. In order to provide for contribution in circumstances in
which the indemnification provided for in SECTION 7 hereof is for any reason
held to be unavailable from any indemnifying party or is insufficient to hold
harmless a party indemnified thereunder, the Company, the Selling Shareholder
and the Underwriters shall contribute to the aggregate losses, claims, damages,
liabilities and expenses of the nature contemplated by such indemnification
provisions as incurred (including any investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claims asserted, but after deducting in the case of
losses, claims, damages, liabilities and expenses suffered by the Company and
the Selling Shareholder any contribution received by the Company or such Selling
Shareholder from persons, other than the Underwriters, who may also be liable
for contribution, including persons who control the Company within the meaning
of Section 15 of the Act or Section 20(a) of the Exchange Act, officers of the
Company who signed the Registration Statement and directors of the Company) to
which the Company, the Selling Shareholder and one or more of the Underwriters
may be subject, in such proportions as is appropriate to reflect the relative
benefits received by the Company, the Selling Shareholder and the Underwriters
from the offering of the Shares or, if such allocation is not permitted by
applicable law or indemnification is not available as a result of the
indemnifying party not having received notice as provided in SECTION 7 hereof,
in such proportion as is appropriate to reflect not only the relative benefits
referred to above but also the relative fault of the Company, the Selling
Shareholder and the Underwriters in connection with the statements or omissions
that resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations; provided, however, that the
contribution obligation of the Selling Shareholder shall be limited in amount to
67% of the total net proceeds to the Selling Shareholder (before deducting
expenses) received by the Selling Shareholder from the sale by the Selling
Shareholder of Shares pursuant to this Agreement. The relative benefits received
by the Company, the Selling Shareholder and the Underwriters shall be deemed to
be in the same proportion as (x) the total proceeds from the offering (net of
underwriting discounts and commissions but before deducting expenses) received
by the Company and (y) the total
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proceeds from the offering (net of underwriting discounts and commissions but
before deducting expenses) received by the Selling Shareholder and (z) the
underwriting discounts and commissions received by the Underwriters,
respectively, in each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company, the Selling Shareholder and of
the Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, the Selling Shareholder or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Selling
Shareholder and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this SECTION 8 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to above. The Company and the Selling
Shareholder shall be jointly and severally liable for the amounts to be
contributed by either of them pursuant to the provisions of this SECTION 8.
Notwithstanding the provisions of this SECTION 8, (i) in no case shall any
Underwriter be liable or responsible for any amount in excess of the
underwriting discount applicable to the Shares purchased by such Underwriter
hereunder, and (ii) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this SECTION 8, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act shall have
the same rights to contribution as such Underwriter, and each person, if any,
who controls the Company within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act, each officer of the Company who shall have signed the
Registration Statement and each director of the Company shall have the same
rights to contribution as the Company, subject in each case to clauses (i) and
(ii) of this SECTION 8. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties under this SECTION 8, notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this SECTION 8 or otherwise. No party
shall be liable for contribution with respect to any action or claim settled
without its consent; provided, however, that such consent was not unreasonably
withheld.
9. DEFAULT BY AN UNDERWRITER.
(a) If any Underwriter or Underwriters shall default in its or their
obligation to purchase Firm Shares or Additional Shares hereunder, and if
the Firm Shares or Additional Shares with respect to which such default
relates do not (after giving effect to arrangements, if any, made by you
pursuant to subsection (b) below) exceed in the aggregate 10% of the number
of shares of Firm Shares or Additional Shares, as the case may be, which
all Underwriters have agreed to purchase hereunder, then such Firm Shares
or Additional Shares to which the default relates shall be purchased by the
nondefaulting Underwriters in proportion to their respective commitments
hereunder.
(b) In the event that such default relates to more than 10% of the
Firm Shares, or Additional Shares, as the case may be, you may in your
discretion arrange for yourself or for another party or parties (including
any nondefaulting Underwriter or Underwriters who so agree) to purchase
such Firm Shares, or Additional Shares, as the case may be, to which such
default re lates, on the terms contained herein. In the event that within
five calendar days after such a default you do not arrange for the purchase
of the Firm Shares or Additional Shares, as the case may be, to which such
default relates as provided in this SECTION 9, this Agreement or, in the
case of a default with respect to the Additional Shares, the obligations of
the Underwriters to purchase and of the Company to sell the Additional
Shares, shall thereupon terminate, without liability on the part of the
Company or the Selling Shareholder with respect thereto (except in each
case as provided in SECTIONS 5, 7(A) and 8 hereof) or the Underwriters, but
nothing in this Agreement shall relieve a defaulting Underwriter or
Underwriters of its or their liability, if any, to the other several
Underwriters, the Company and the Selling Shareholder for damages
occasioned by its or their default hereunder.
(c) In the event that the Firm Shares or Additional Shares to which
the default relates are to be purchased by the nondefaulting Underwriters,
or are to be purchased by another party or parties as aforesaid, you or the
Company shall have the right to postpone the Closing Date, or Additional
Closing Date, as the case may be, for a period, not exceeding five business
days, in order to effect whatever changes may thereby be made necessary in
the Registration Statement or the Prospectus or in any other documents and
arrangements, and the Company agrees to file promptly any amendment or
supplement to the Registration Statement or the Prospectus
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which, in the opinion of Underwriters' Counsel, may thereby be made
necessary or advisable. The term "Underwriter" as used in this Agreement
shall include any party substituted under this SECTION 9 with like effect
as if it had originally been a party to this Agreement with respect to such
Firm Shares and Additional Shares.
10. SURVIVAL OF REPRESENTATIONS AND AGREEMENTS. All representations and
warranties, covenants and agreements of the Underwriters, the Selling
Shareholder and the Company contained in this Agreement, including the
agreements contained in SECTION 5, the indemnity agreements contained in SECTION
7 and the contribution agreements contained in SECTION 8, shall remain operative
and in full force and effect regardless of any investigation made by or on
behalf of any Underwriter or any con trolling person thereof or by or on behalf
of the Company, any of its officers and directors or the Selling Shareholder or
any controlling person thereof, and shall survive delivery of and payment for
the Shares to and by the several Underwriters. The representations contained in
SECTION 1 and the agreements contained in SECTIONS 5, 7, 8 and 11(D) hereof
shall survive the termination of this Agreement including pursuant to SECTIONS 9
or 11 hereof.
11. EFFECTIVE DATE OF AGREEMENT; TERMINATION.
(a) This Agreement shall become effective at such time after
notification of the effectiveness of the Registration Statement as you, the
Company and the Selling Shareholder shall agree upon the initial public
offering price and the purchase price per Share. If either the initial
public offering price or the purchase price per Share has not been agreed
upon prior to 5:00 p.m., New York time, on the seventh full business day
after the Registration Statement shall have become effective, this
Agreement shall thereupon terminate without liability to the Company, the
Selling Shareholder or the Underwriters, except as herein expressly
provided. Until this Agreement becomes effective as aforesaid, it may be
terminated by the Company by notifying you and the Selling Shareholder, or
by action only of the Selling Shareholder directly by notifying the Company
and you or by you by notifying the Company and the Selling Shareholder.
Notwithstanding the foregoing, the provisions of this SECTION 11 and of
SECTIONS 1, 5, 7 and 8 hereof shall at all times be in full force and
effect.
(b) You shall have the right to terminate this Agreement at any time
prior to the Closing Date, or the obligations of the Underwriters to
purchase the Additional Shares at any time prior to the Additional Closing
Date, as the case may be, by giving notice to the Company, if any domestic
or international event or act or occurrence has materially disrupted, or in
your opinion will in the immediate future materially disrupt, the
securities markets; or if trading on the New York or American Stock
Exchanges or in the over-the-counter market shall have been suspended, or
minimum or maximum prices for trading shall have been fixed, or maximum
ranges for prices for securities shall have been required, on the New York
or American Stock Exchanges by the New York or American Stock Exchanges or
by order of the Commission or any other governmental authority having
jurisdiction; or if the United States shall have become involved in a war
or major hostilities; or if a banking moratorium has been declared by a
state or federal authority, or if a moratorium in foreign exchange trading
by major international banks or persons has been declared; or if any new
restriction materially adversely affecting the distribution of the Firm
Shares, or the Additional Shares, as the case may be, shall have become
effective; or if the Company shall have sustained a material or substantial
loss, which, whether or not such loss shall have been insured, in your
judgment makes it inadvisable to proceed with the offering, sale, or
delivery of the Firm Shares, or the Additional Shares, as the case may be,
on the terms contemplated by the Prospectus; or if there shall have been
such change in the market for the Compa ny's securities or securities in
general, or in political, financial or economic conditions as in your
judgment makes it inadvisable to proceed with the offering, sale or
delivery of the Firm Shares, or the Additional Shares, as the case may be,
on the terms contemplated by the Prospectus; or if, (i) either the Company
or any of its subsidiaries shall have sustained since the date of the
latest audited financial statements included or incorporated by reference
in the Prospectus any loss or interference with its business from fire,
explosion, flood or other calamity, whether or not covered by insurance, or
from any labor dispute or court or governmental action, order or decree,
otherwise than as set forth or contemplated in the Prospectus or (ii) since
the respective dates as of which information is given in the Prospectus
there shall have been any change in the capital stock or long-term debt of
the Company or any of its subsidiaries, otherwise than as set forth or
contemplated in the Prospectus, the effect of which, in any such case
described in clause (i) or (ii) above, is in your reasonable judgment so
material and adverse as to make it impracticable or inadvisable to proceed
with the offering, sale or delivery of the Firm Shares, or the Additional
Shares, as the case may be, on the terms contemplated by the Prospectus.
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(c) Any notice of termination pursuant to this SECTION 11 shall be by
telephone, telex, telegraph, or telecopy, confirmed in writing by letter.
(d) If this Agreement shall be terminated pursuant to any of the
provisions hereof (otherwise than pursuant to (i) notification by you as
provided in SECTION 11(A) hereof, or (ii) SECTIONS 9(B) or 11(B) hereof),
or if the sale of the Shares provided for herein is not consummated because
any condition to the obligations of the several Underwriters set forth
herein is not satisfied or because of any refusal, inability or failure on
the part of the Company or the Selling Shareholder to perform any agreement
herein, or comply with any provision hereof, the Company and the Selling
Shareholder jointly and severally agree subject to demand by you, to
reimburse the Underwriters for all out-of-pocket expenses (including the
fees and expenses of their counsel), incurred by the several Underwriters
in connection herewith.
12. NOTICES. All communications hereunder, except as may be otherwise
specifically provided herein, shall be in writing and (i) if sent to any
Underwriter, shall be mailed, delivered, telexed, telegraphed, or telecopied,
and confirmed in writing, to such Underwriter c/o Bear, Xxxxxxx & Co. Inc., 000
Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Finance and (ii) if
sent to the Company or the Selling Shareholder shall be mailed, delivered,
telexed, telegraphed, or telecopied, and confirmed in writing to the Company,
000 Xxxxxxxx Xxxxxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxxx 00000, Attention: Xxxxxx X.
Patron; and, in the case of the Selling Shareholder, to such person in care of
the Company at the address set forth above.
13. PARTIES. You represent that you are authorized to act on behalf of
the several Underwriters named in SCHEDULE I hereto, and the Company and the
Selling Shareholder shall be entitled to act and rely on any request, notice,
consent, waiver or agreement purportedly given on behalf of the Underwriters
when the same shall have been given by you on such behalf. This Agreement shall
inure solely to the benefit of, and shall be binding upon, the several
Underwriters, the Selling Shareholder and the Company and the controlling
persons, directors, officers, employees and agents referred to in SECTIONS 7 and
8, and their respective successors and assigns, and no other person shall have
or be construed to have any legal or equitable right, remedy or claim under or
in respect of or by virtue of this Agreement or any provision herein contained.
The term "successors and assigns" shall not include a purchaser, in its capacity
as such, of Shares from any of the Underwriters.
14. CONSTRUCTION. This Agreement shall be construed in accordance with
the internal laws of the State of New York, without giving effect to the rules
governing conflicts of laws. Time is of the essence in this agreement.
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If the foregoing correctly sets forth the understanding among you, the
Company and the Selling Shareholder, please so indicate in the space provided
below for that purpose, whereupon this letter shall constitute a binding
agreement among us.
Very truly yours,
XXXXXXX ENTERPRISES, INC.
By:____________________________________
Print Name:____________________________
Title:_________________________________
THE SELLING SHAREHOLDER IN HIS
INDIVIDUAL CAPACITY:
_______________________________________
Xxxxx X. Xxxxxxx, Xx.
Accepted as of the date first above written.
BEAR, XXXXXXX & CO. INC.
XXXXXXX, SACHS & CO.
ABN AMRO CHICAGO CORPORATION
XXXXXXX XXXX & COMPANY L.L.C.
By: BEAR, XXXXXXX & CO. INC.
By:__________________________
Print Name:__________________
Title:_______________________
On behalf of themselves and the other several Underwriters named in SCHEDULE I
hereto.
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SCHEDULE I
NUMBER OF
UNDERWRITERS FIRM SHARES
------------ -----------
Bear, Xxxxxxx & Co. Inc............. __________
Xxxxxxx, Sachs & Co................. __________
ABN AMRO Chicago Corporation........ __________
Xxxxxxx Xxxx & Company L.L.C........ __________
Total 4,750,000
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