EXHIBIT 1
4,750,000 Shares of Class A Common Stock
XXXXXXX ENTERPRISES, INC.
UNDERWRITING AGREEMENT
----------------------
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.
("Xxxxxxx") and the Xxxxx X. Xxxxxxx, Xx. Charitable Remainder Unitrust (the
"Trust") (each a "Selling Shareholder" and, collectively, the "Selling
Shareholders"), propose to sell to the Underwriters an additional 150,000 shares
and 350,000 shares, respectively, 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.
1. REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE SELLING
SHAREHOLDERS.
A. The Company represents and warrants to, and agrees with, the several
Underwriters that:
(a) The Company 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. 333-27771), 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 either of the
Selling Shareholders insofar as it relates to such Selling Shareholders, in each
case expressly for use in connection with the preparation thereof. The documents
incorporated by reference in the Registration Statement and the Prospectus, when
they were first filed with the Commission, complied in all material respects
with the applicable provisions of the Exchange Act and the rules and regulations
of the Commission thereunder.
(c) Neither the Commission nor the Blue Sky or securities authority of
any jurisdiction has issued a stop order suspending the effectiveness of the
Registration Statement, preventing or suspending the use of any preliminary
prospectus, the 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 similar
organizational documents of any of its subsidiaries or any judgment, decree,
order, statute, rule or regulation of any court or any public, governmental or
regulatory agency or body having jurisdiction over the Company or any of its
subsidiaries or any of their respective properties or assets. No consent,
approval, authorization, order, registration, filing, qualification, license or
permit of or with any court or any public, governmental or regulatory agency or
body having jurisdiction over the Company or any of its subsidiaries or any of
their respective properties or assets is required for the execution, delivery
and performance of this Agreement 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 an
authorized and outstanding capitalization at January 31, 1997 as set forth in
the preliminary prospectus dated June 9, 1997 and at April 30, 1997 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 or partnership in good standing under the laws
of its jurisdiction of incorporation or organization. Each of the Company and
its subsidiaries is duly qualified and in good standing as a foreign corporation
or partnership 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
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a whole. Each of the Company and its subsidiaries has all requisite power and
authority, and all necessary consents, approvals, authorizations, orders,
registrations, qualifications, licenses and permits of and from any public,
regulatory or governmental agencies and bodies, to own, lease and operate its
properties and conduct its business as now being conducted and as described in
the Registration Statement and the Prospectus, and no such consent, approval,
authorization, order, registration, qualification, license or permit contains a
materially burdensome restriction not adequately disclosed in the Registration
Statement and the Prospectus.
(j) Neither the Company nor any of its subsidiaries (i) is in violation of
its corporate charter or bylaws or other similar organizational documents, (ii)
is in default under any lease, license, indenture, mortgage, deed of trust,
note, bank loan or other evidence of indebtedness or any other agreement,
understanding or instrument to which the Company or any such subsidiary is a
party or by which the Company or any such subsidiary or any property of the
Company or any of such subsidiary may be bound or affected, which default may
have a material adverse effect on the business, properties, financial condition,
results of operations or prospects of the Company and its subsidiaries taken as
a whole, or (iii) is in violation of any law, ordinance, governmental rule or
regulation or court decree to which it may be subject or has failed to obtain
any license, permit, certificate, franchise or other governmental authorization
or permit necessary to the ownership of its property or to the conduct of its
business, which violation or failure may have a material adverse effect on the
business, properties, financial condition, results of operations or prospects of
the Company and its subsidiaries taken as a whole.
(k) Except as described in the Registration Statement and the Prospectus,
and any documents incorporated by reference therein (including the notes to the
financial statements included or incorporated by reference therein), there are
no outstanding warrants or options to purchase any shares of the capital stock
of the Company and there are no preemptive or other rights to subscribe for or
to purchase, and no restrictions upon, any 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, threatened, before or by any court or government agency, authority
or body, or any arbitrator against the Company or any of its subsidiaries that
(i) could reasonably be expected to have a material adverse effect on the
business, properties, financial condition, results of operations or prospects of
the Company and its subsidiaries taken as a whole, or (ii) is required to be
disclosed in the Registration Statement or the Prospectus and is not so
disclosed and adequately summarized therein.
(m) The financial statements (including the related notes and supporting
schedules) included in the Registration Statement and the preliminary prospectus
or the Prospectus, or incorporated by reference therein, present fairly in
accordance with generally accepted accounting principles the financial condition
and results of operations of the entities purported to be shown thereby, at the
dates and for the periods indicated, and have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved.
(n) No relationship, direct or indirect, exists between or among the
Company or any of its subsidiaries, on the one hand, and the directors, officers
or shareholders of the Company or any of its subsidiaries, on the other hand,
which is required by the Act or by the Regulations to be described in the
Registration Statement and the Prospectus that is not so described or is not
adequately described.
(o) There are no contracts or other documents that are required to be filed
as exhibits to the Registration Statement by the Act or by the Regulations that
have not been filed as exhibits to the Registration Statement, or that are
required to be summarized in the Prospectus that are not so summarized or are
not adequately summarized.
(p) No person has the right to request or require the Company or any of its
subsidiaries to register any capital stock for offering and sale under the Act
whether by reason of the filing of the Registration Statement with the
Commission or the issue and sale of the Shares or otherwise.
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(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.
(r) The Class A Common Stock is quoted on the Nasdaq National Market.
(s) The Company is not, and upon consummation of the transactions
contemplated hereby will not be, subject to registration as an "investment
company" under the Investment Company Act of 1940, as amended (the "Investment
Company Act").
(t) The conditions for use of Form S-3, as set forth in the General
Instructions thereto, have been satisfied.
B. Each Selling Shareholder severally represents and warrants to, and
agrees with, the several Underwriters that:
(a) The execution, delivery and performance of this Agreement by such
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 such Selling Shareholder pursuant to the terms of any
agreement, instrument (including in the case of the Trust, the declaration of
trust for the Trust), franchise, license or permit to which such Selling
Shareholder is a party or by which such Selling Shareholder or any of such
Selling Shareholder's property or assets may be bound, or (ii) violate or
conflict with any judgment, decree, order, statute, rule or regulation of any
court or any public, governmental or regulatory agency or body having
jurisdiction over such Selling Shareholder or such Selling Shareholder's
property or assets.
(b) Such Selling Shareholder has, and at the time of delivery of the Shares
to be sold by such Selling Shareholder such Selling Shareholder will have, full
legal right, power, authority and capacity, and, except as required under the
Act and state securities and Blue Sky laws, all necessary consents, approvals,
authorizations, orders, registrations, filings, qualifications, licenses and
permits of and from all public, regulatory or governmental agencies and bodies,
as are required for the execution, delivery and performance of 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 such Selling Shareholder hereunder.
(c) This Agreement has been duly and validly authorized, executed and
delivered by such Selling Shareholder and is a valid and binding obligation of
such Selling Shareholder, enforceable against such Selling Shareholder in
accordance with its terms, except to the extent that rights to indemnity
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) Such Selling Shareholder has good, valid and marketable title to the
Shares to be sold by such Selling Shareholder pursuant to this Agreement, free
and clear of all liens, 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 such Selling Shareholder, free and clear of all liens,
encumbrances, claims, security interests, restrictions on transfer,
shareholders' agreements, voting trusts and other defects in title whatsoever.
(e) Such Selling Shareholder has not taken and shall not take, directly or
indirectly, any action designed to cause or result in, or that might reasonably
be expected to constitute the stabilization or manipulation of the price of the
shares of Class A Common Stock to facilitate the sale or resale of the Shares.
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(f) When the Registration Statement shall become effective, when any
amendment to the Registration Statement becomes effective, when the Prospectus
is first filed with the Commission pursuant to Rule 424(b) of the Regulations,
when any amendment of or supplement to the Prospectus is filed with the
Commission and at all times subsequent thereto and including the Closing Date,
and during such longer periods as the Prospectus may be required to be delivered
in connection with sales by the Underwriters or a dealer, such parts of the
Registration Statement and the Prospectus and any amendments thereof and
supplements thereto as relate to such Selling Shareholder and are based upon
information furnished in writing to the Company or the Underwriters by or on
behalf of such Selling Shareholder expressly for use therein will not contain an
untrue statement of a material fact and will not omit to state any material fact
required to be stated therein or necessary in order to make the statements
therein not misleading, and no event will have occurred with respect to such
Selling Shareholder that should have been set forth in an amendment or
supplement to the Registration Statement or Prospectus that has not then been
set forth in such an amendment or supplement; and when any related preliminary
prospectus was first filed with the Commission (whether filed as part of the
registration statement for the registration of the Shares or any amendment
thereto or pursuant to Rule 424(a) of the Regulations) and when any amendment
thereof or supplement thereto was first filed with the Commission, such parts of
such preliminary prospectus and any amendments thereof and supplements thereto
as relate to such Selling Shareholder and are based on information furnished in
writing to the Company or the Underwriters by or on behalf of such Selling
Shareholder expressly for use therein did not contain an untrue statement of a
material fact and did not omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(g) The information pertaining to such Selling Shareholder under the
caption "Selling Shareholders" in the Prospectus is complete and accurate.
2. PURCHASE, SALE AND DELIVERY OF THE SHARES.
(a) 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 to the several Underwriters 4,250,000
of the Firm Shares, Xxxxxxx hereby agrees to sell to the several Underwriters
150,000 of the Firm Shares and the Trust hereby agrees to sell to the several
Underwriters 350,000 of the Firm Shares; and each Underwriter, severally and not
jointly, agrees to purchase the number of shares of the Firm Shares set forth
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
Shareholders, that number of the Firm Shares which represents the same
proportion of the number of the Firm Shares to be sold by the Company and the
Selling Shareholders 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 Shareholders and the Company. The time
and date of such delivery and payment are herein called the "Closing Date."
Delivery of the certificates for the Firm Shares shall be made to 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 Shareholders 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
Shareholders will permit you to examine and package such certificates for
delivery at least one full business day prior to the Closing Date.
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(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 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 SHAREHOLDERS.
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 thereto 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 occurred as a result of which
the Prospectus as then amended or supplemented includes an untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it shall be necessary at any
time to amend or supplement the Prospectus or Registration Statement to comply
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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.
(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 its fiscal quarter in
which the first anniversary of the effective date of the Registration Statement
occurs (or not later than 90 days after the end of such fiscal quarter if such
fiscal quarter is the last fiscal quarter of the fiscal year), an earnings
statement (which need not be audited but which shall satisfy the provisions of
Section 11(a) of the Act) covering a period of at least 12 consecutive months
beginning after the effective date of the Registration Statement.
(f) During a period of 90 days from the date of the Prospectus, the Company
will not, without 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 person who
is an executive officer and/or director as of the date of this Agreement not to
engage in any of the aforementioned transactions on their own behalf, other than
the Company's sale of Shares hereunder, the Company's issuance of Class A Common
Stock upon the exercise of presently outstand ing stock options, grants of
employee options pursuant to the Company's employee stock purchase plan, the
grant of options to directors of the Company as provided in the Company's
director stock option plan and the issuance of shares of Class A Common Stock
upon exercise thereof, and in connection with acquisitions.
(g) During a period of three years from the effective date of the
Registration Statement, the Company will furnish to the Representatives, upon
request, copies of (i) all reports to its shareholders, and (ii) all reports,
financial statements and proxy or information statements filed by the Company
with the Commission or any national securities exchange or quotation system upon
which the Class 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.
8
B. Each Selling Shareholder severally covenants and agrees with the
several Underwriters that during a period of 90 days from the date of the
Prospectus, such Selling Shareholder will not, without 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
hereby agrees to pay all costs and expenses incident to the performance of the
obligations of the Company and the Selling Shareholders hereunder, including
those in connection with (i) preparing, printing, duplicating, filing and
distributing the Registration Statement, as originally filed, and all amendments
thereof (including all exhibits thereto), any preliminary prospectus, the
Prospectus and any amendments thereof or supplements thereto, the underwriting
documents (including this Agreement and the Agreement Among Underwriters) and
all other documents related to the public offering of the Shares (including
those supplied to the Underwriters in quantities as hereinabove stated), (ii)
the issuance, transfer and delivery of the Shares to the Underwriters, including
any transfer or other taxes payable thereon, (iii) the qualification of the
Shares under state or foreign securities or Blue Sky laws, including the costs
of printing and mailing a preliminary and final "Blue Sky Survey" and the fees
of counsel for the Underwriters and such counsel's disburse ments in relation
thereto, and (iv) if appropriate, the review of the terms of the public offering
of the Shares by the National Association of Securities Dealers, Inc.; provided,
however, that the Selling Shareholders hereby agree to reimburse the Company for
such expenses as are described as being payable by the Selling Shareholders in
Part II of the Registration Statement.
6. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The obligations of the
several Underwriters to purchase and pay for the Firm Shares and the Additional
Shares, as provided herein, shall be subject to the accuracy of the
representations and warranties of the Company and the Selling Shareholders
herein contained, as of the date hereof and as of the Closing Date (or in the
case of the Additional Shares as of the Additional Closing Date), to the absence
from any certificates, opinions, written statements or letters furnished to you
or to Jenkens & Xxxxxxxxx, a Professional Corporation ("Underwriters' Counsel"),
pursuant to this SECTION 6 of any misstatement or omission, to the performance
by the Company and the Selling Shareholders of their respective obligations
hereunder, and to the following additional conditions:
(a) The Registration Statement shall have become effective not later than
5:30 p.m., New York time, on the day following the date of 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 reasonably 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
9
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 hereunder, free and clear of all liens, encumbrances,
claims, security interests, restrictions on transfer, shareholders'
agreements, voting trusts and other defects of title whatsoever.
(iii) The capital stock of the Company, including the Shares, conforms
in all material respects to the description thereof incorporated by
reference in the Registration Statement and the Prospectus; the
certificates for the Shares are in proper form under Louisiana law.
(iv) The Class A Common Stock is listed on the Nasdaq National Market.
(v) Such counsel does not know of any contracts or other documents that
are required to be filed as exhibits to the Registration Statement by the
Act or by the Regulations that have not been filed as exhibits to the
Registration Statement, or that are required to be summarized in the
Prospectus that are not so summarized.
(vi) To the best of such counsel's knowledge, the Company is not in
violation of its corporate charter or bylaws and neither the Company nor
any of its Significant Subsidiaries is in default under (and no event has
occurred which with notice, lapse of time, or both, would constitute a
breach of, or a default under), any agreement, license, mortgage, deed of
trust, bank loan, credit agreement, indenture or instrument filed as an
exhibit to the Registration Statement (or as an exhibit to the Company's
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), 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
10
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 the Shares by the
Underwriters (as to which such counsel need express no opinion), and (2)
such as have been made or obtained under the Act.
(xi) The Registration Statement and the Prospectus and any amendments
thereof or supplements thereto (other than the financial statements and
schedules and other financial and statistical data included or incorporated
by reference therein, as to which no opinion need be rendered) comply as to
form in all material respects with the requirements of the Act and the
Regulations. The documents filed under the Exchange Act and incorporated by
reference in the Registration Statement and the Prospectus and in any
amendment thereof or supplement thereto (other than the financial
statements and schedules and other financial and statistical data included
or incorporated by reference therein, as to which no opinion need be
rendered) comply as to form in all material respects with the Exchange Act
and the rules and regulations of the Commission thereunder.
(xii) The Registration Statement is effective under the Act, and, to the
best knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement or any post-effective amendment thereof has
been issued and no proceedings therefor have been initiated or threatened
by the Commission.
In addition, such counsel shall state that such counsel has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants of the Company and
representatives of the Underwriters at which the contents of the Registration
Statement and the Prospectus were discussed and, although such counsel is not
passing upon, and does not assume responsibility for and has not verified, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, on the basis of the foregoing (relying
as to materiality upon the opinions of officers and other representatives of the
Company) and without independent check or verification, nothing has come to the
attention of such counsel that leads it to believe that the Registration
Statement or any amendment thereto at the time such Registration Statement or
amendment became effective contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading, or that the Prospectus or any
supplement thereto at the date of such Prospectus or such supplement, and at all
times up to and including the Closing Date or the Additional Closing Date, as
the case may be, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading (it being understood that such counsel need express no opinion
with respect to the financial statements and schedules and other financial and
statistical data included or incorporated by reference in the Registration
Statement or the Prospectus or in any amendments thereof or supplements
thereto).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
jurisdictions in which they are admitted, to the extent such counsel deems
proper and to the extent specified in such opinion, if at all, upon an opinion
or opinions (in form and substance reasonably satisfactory to Underwriters'
Counsel) of other counsel reasonably acceptable to Underwriters' Counsel,
familiar with the applicable laws; (B) as to matters of fact, to the extent they
deem proper, on certificates of responsible officers of the Company and
certificates or other written statements of officers
11
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 Shareholders, dated the
Closing Date, addressed to the Underwriters and in form and substance reasonably
satisfactory to Underwriters' Counsel, to the effect that:
(i) This Agreement has been duly and validly authorized, executed and
delivered by the Selling Shareholders and is a valid and binding obligation
of each of the Selling Shareholders, enforceable against each of the Selling
Shareholders in accordance with its terms, except to the extent that rights
to indemnity 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.
(ii) To the best knowledge of such counsel, the Selling Shareholders
have all requisite power and authority, and all necessary consents,
approvals, authorizations, orders, registrations, filings, qualifications,
licenses and permits of and from all courts and all public, governmental or
regulatory agencies and bodies as are required for the execution, delivery
and performance of 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 Shareholders 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 Shareholders, free and clear of all liens,
encumbrances, claims, security interests, restrictions on transfer,
shareholders' agreements, voting trusts and other defects in title
whatsoever.
(iv) The execution, delivery and performance of this Agreement by the
Selling Shareholders 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 Shareholders or any of their respective
properties or assets.
(v) The Statements in the Prospectus under the caption "Selling
Shareholders," insofar as such statements constitute a summary of the matters
referred to therein, fairly present the information called for with respect
to such matters in all material respects.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws other than the laws of the United States and
jurisdictions in which they are admitted, to the extent such counsel deems
proper and to the extent specified in such opinion, if at all, upon an opinion
or opinions (in form and substance reasonably satisfactory to Underwriters'
Counsel) of other counsel reasonably acceptable to Underwriters' Counsel,
familiar with the applicable laws; (B) as to matters of fact, to the extent they
deem proper, on certificates of the Selling Shareholders, provided that copies
of any such statements or certificates shall be delivered to Underwriters'
Counsel. The opinions of such counsel for the Selling Shareholders shall state
that the opinion of any such other counsel is in form satisfactory to such
counsel and, in their opinion, 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 Chief Executive Officer and the Chief Financial
Officer of the Company, dated the Closing Date, or
12
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 certificates executed by
the respective Selling Shareholders, each dated the Closing Date, to the effect
that the representations and warranties of such Selling Shareholder set forth in
SECTION 1 hereof are accurate, and that as of the Closing Date, the obligations
of such Selling Shareholder to be performed hereunder on or prior thereto have
been duly performed.
(f) At the time 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 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
13
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,
and the Company and the Selling Shareholders shall have furnished to
Underwriters' Counsel such documents as they request for the purpose of enabling
them to pass upon such matters.
(h) Prior to the Closing Date and the Additional Closing Date the Company
and the Selling Shareholders shall have furnished to 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 Shareholders in writing, or by
telephone, telex or telegraph, confirmed in writing.
7. INDEMNIFICATION.
(a) The Company agrees to indemnify and hold harmless each Underwriter,
its officers, directors, partners, employees, agents and counsel, and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20(a) of the Exchange Act against any and all losses,
liabilities, claims, damages and expenses whatsoever as incurred (including but
not limited to attorneys' fees and any and all expenses whatsoever incurred in
investigating, preparing or defending against any litigation, commenced or
threatened, or any claim whatsoever, and any and all amounts paid in settlement
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the registration statement for the registration
of the Shares, as originally filed or any amendment thereof, or any related
preliminary prospectus or the Prospectus, or in any supplement thereto or
amendment thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading; provided, however, that
the Company will not be liable in any such case to the extent but only to the
extent that any such loss, liability, claim, damage or expense arises out of or
is based upon any such untrue statement or alleged untrue statement or omission
or alleged omission made therein, in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any Underwriter
through you expressly for use therein. This indemnity agreement will be in
addition to any liability that the Company may otherwise have, including under
this Agreement.
(b) Each Selling Shareholder agrees to indemnify and hold harmless each
Underwriter, its officers, directors, partners, employees, agents and counsel,
and each person, if any who controls any Underwriter within the meaning of
Section 15 of the Act or Section 20(a) of the Exchange Act against any and all
losses, liabilities, claims, damages and expenses whatsoever as incurred
(including but not limited to attorneys' fees and any and all expenses
whatsoever incurred in investigating, preparing or defending against any
litigation, commenced or threatened, or any claim whatsoever, and any and all
amounts paid in settlement
14
of any claim or litigation), joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or otherwise, insofar as such
losses, liabilities, claims, damages or expenses (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue statement
of a material fact contained in the registration statement for the registration
of the Shares, as originally filed or any amendment thereof, or any related
preliminary prospectus or the Prospectus, or in any supplement thereto or
amendment thereof, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company or the Underwriters
by or on behalf of the Selling Shareholder expressly for use therein. The
Underwriters acknowledge that the statements set forth under the caption
"Selling Shareholders" with respect to the Trust constitute the only information
furnished in writing by or on behalf of the Trust expressly for use 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. The Underwriters
further acknowledge that the statements set forth under the caption "Selling
Shareholders" with respect to Xxxxxxx constitute the only information furnished
in writing by or on behalf of Xxxxxxx expressly for use 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.
(c) Each Underwriter severally, and not jointly, agrees to indemnify and
hold harmless the Company, the Selling Shareholders, each of the directors of
the Company, each of the officers of the Company who shall have signed the
Registration Statement, its employees, agents and counsel, and each other
person, if any, who controls the Company within the meaning of Section 15 of the
Act or Section 20(a) of the Exchange Act, against any losses, liabilities,
claims, damages and expenses whatsoever (including but not limited to attorneys'
fees and any and all expenses whatsoever incurred in investigating, preparing or
defending against any litigation, commenced or threatened, or any claim
whatsoever, and any and all amounts paid in settlement of any claim or
litigation), joint or several, to which they or any of them may become subject
under the Act, the Exchange Act or otherwise, insofar as such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Shares, as originally filed or any amendment thereof, or any related
preliminary prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that any such loss, liability, claim, damage or
expense arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through 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 Shareholders acknowledge that the
statements set forth in the last paragraph of the cover page and in the first
five and last two 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.
(d) Promptly after receipt by an indemnified party under subsection (a) or
(b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify each party against whom indemnification is
to be sought in writing of the commencement thereof (but the failure so to
notify an indemnifying party shall not relieve it from any liability which it
may have under this SECTION 7 except to the extent that it has been prejudiced
in any material respect by such failure or from any liability which it may have
otherwise). In case any such action is brought against any indemnified party,
and it notifies an indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and to the extent it
may elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, to assume
15
the defense thereof with counsel satisfactory to such indemnified party.
Notwithstanding the foregoing, the indemnified party or parties shall have the
right to employ its or their own counsel in any such case, but the fees and
expenses of such counsel shall be at the expense of such indemnified party or
parties unless (i) the employment of such counsel shall have been authorized in
writing by one of the indemnifying parties in connection with the defense of
such action, (ii) the indemnifying parties shall not have employed counsel to
have charge of the defense of such action within a reasonable time after notice
of commencement of the action, or (iii) such indemnified party or parties shall
have reasonably concluded that there may be defenses available to it or them
that are different from or additional to those available to one or all of the
indemnifying parties (in which case the indemnifying parties shall not have the
right to direct the defense of such action on behalf of the indemnified party or
parties), in any of which events such fees and expenses shall be borne by the
indemnifying parties. Anything in this subsection to the contrary
notwithstanding, an indemnifying party shall not be liable for any settlement of
any claim or action effected without its written consent; provided, however,
that such consent was not unreasonably withheld.
8. CONTRIBUTION. In order to provide for contribution in circumstances in
which the indemnification provided for in SECTION 7 hereof is for any reason
held to be unavailable from any indemnifying party or is insufficient to hold
harmless a party indemnified thereunder, the Company, the Selling Shareholders
and the Underwriters shall contribute to the aggregate losses, claims, damages,
liabilities and expenses of the nature contemplated by such indemnification
provisions as incurred (including any investigation, legal and other expenses
incurred in connection with, and any amount paid in settlement of, any action,
suit or proceeding or any claims asserted, but after deducting in the case of
losses, claims, damages, liabilities and expenses suffered by the Company and
the Selling Shareholders any contribution received by the Company or such
Selling Shareholders from persons, other than the Underwriters, who may also be
liable for contribution, including persons who control the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, officers
of the Company who signed the Registration Statement and directors of the
Company) to which the Company, the Selling Shareholders and one or more of the
Underwriters may be subject, in such proportions as is appropriate to reflect
the relative benefits received by the Company, the Selling Shareholders and the
Underwriters from the offering of the Shares or, if such allocation is not
permitted by applicable law or indemnification is not available as a result of
the indemnifying party not having received notice as provided in SECTION 7
hereof, in such proportion as is appropriate to reflect not only the relative
benefits referred to above but also the relative fault of the Company, the
Selling Shareholders and the Underwriters in connection with the statements or
omissions that resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The relative
benefits received by the Company, the Selling Shareholders and the Underwriters
shall be deemed to be in the same proportion as (w) the total proceeds from the
offering (net of underwriting discounts and commissions but before deducting
expenses (received by the Company and (x) the total proceeds from the offering
(net of underwriting discounts and commissions but before deducting expenses)
received by Xxxxxxx and (y) the total proceeds from the offering (net of
underwriting discounts and Commissions but before deducting expenses) received
by the Trust 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; provided, however, that the relative benefits received
by the Company shall be deemed to additionally include the total proceeds from
the offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Selling Shareholders to the extent the Selling
Shareholders are not obligated to provide indemnification pursuant to the terms
of SECTION 7(b). The relative fault of the Company, the Selling Shareholders and
of the Underwriters shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company, the Selling Shareholders or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company, the Selling
Shareholders and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this SECTION 8 were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this SECTION 8, (i) in no case shall any Underwriter be liable or responsible
for any amount in excess of the underwriting discount applicable to the Shares
purchased by such Underwriter hereunder, and (ii) no person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this SECTION 8, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act shall have the same rights to contribution as such
Underwriter, and each person, if any, who controls the Company within the
meaning of Section 15 of the Act or Section 20(a) of the Exchange Act, each
officer of the Company who shall have signed the Registration Statement and each
director of the Company shall have the same rights
16
to contribution as the Company, subject in each case to clauses (i) and (ii) of
this SECTION 8. Any party entitled to contribution will, promptly after receipt
of notice of commencement of any action, suit or proceeding against such party
in respect of which a claim for contribution may be made against another party
or parties under this SECTION 8, notify such party or parties from whom
contribution may be sought, but the omission to so notify such party or parties
shall not relieve the party or parties from whom contribution may be sought from
any obligation it or they may have under this SECTION 8 or otherwise. No party
shall be liable for contribution with respect to any action or claim settled
without its consent; provided, however, that such consent was not unreasonably
withheld. The Selling Shareholders shall not be obligated to make contributions
with respect to any claim unless the Selling Shareholder would be obligated to
provide indemnification with respect to such claim pursuant to the terms of
SECTION 7(b).
9. DEFAULT BY AN UNDERWRITER.
(a) If any Underwriter or Underwriters shall default in its or their
obligation to purchase Firm Shares or Additional Shares 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 Shareholders with respect thereto (except in each
case as provided in SECTIONS 5, 7(A) and 8 hereof) or the Underwriters, but
nothing in this Agreement shall relieve a defaulting Underwriter or
Underwriters of its or their liability, if any, to the other several
Underwriters, the Company and the Selling Shareholders for damages
occasioned by its or their default hereunder.
(c) In the event that the Firm Shares or Additional Shares to which the
default relates are to be purchased by the 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 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
Shareholders 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 controlling person thereof or by or on behalf
of the Company, any of its officers and directors or the Selling Shareholders or
any controlling person thereof, and shall survive delivery of and payment for
the Shares to and by the several Underwriters. The representations contained in
SECTION 1 and the agreements contained in SECTIONS 5, 7, 8 and 11(D) hereof
shall survive the termination of this Agreement including pursuant to SECTIONS 9
or 11 hereof.
17
11. EFFECTIVE DATE OF AGREEMENT; TERMINATION.
(a) This Agreement shall become effective at such time after
notification of the effectiveness of the Registration Statement as you, the
Company and the Selling Shareholders shall agree upon the initial public
offering price and the purchase price per Share. If either the initial public
offering price or the purchase price per Share has not been agreed upon prior to
5:00 p.m., New York time, on the seventh full business day after the
Registration Statement shall have become effective, this Agreement shall
thereupon terminate without liability to the Company, the Selling Shareholders
or the Underwriters, except as herein expressly provided. Until this Agreement
becomes effective as aforesaid, it may be terminated by the Company by notifying
you and the Selling Shareholders, or by action of the Selling Shareholders by
notifying the Company and you or by you by notifying the Company and the Selling
Shareholders. Notwithstanding the foregoing, the provisions of this SECTION 11
and of SECTIONS 1, 5, 7 and 8 hereof shall at all times be in full force and
effect.
(b) You shall have the right to terminate this Agreement at any time prior
to the Closing Date, or the obligations of the Underwriters to purchase the
Additional Shares at any time prior to the Additional Closing Date, as the case
may be, 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
Company's securities or securities in general, or in political, financial or
economic conditions as in your judgment makes it inadvisable to proceed with the
offering, sale 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.
(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 Shareholders to perform any agreement herein, or comply with any
provision hereof, the Company agrees 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
18
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 either of the Selling Shareholders 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 either of the Selling Shareholders, 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 Shareholders shall be entitled to act and rely on any request, notice,
consent, waiver or agreement purportedly given on behalf of the Underwriters
when the same shall have been given by you on such behalf. This Agreement shall
inure solely to the benefit of, and shall be binding upon, the several
Underwriters, the Selling Shareholders and the Company and the controlling
persons, directors, officers, employees and agents referred to in SECTIONS 7 and
8, and their respective successors and assigns, and no other person shall have
or be construed to have any legal or equitable right, remedy or claim under or
in respect of or by virtue of this Agreement or 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.
19
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,
COMPANY:
XXXXXXX ENTERPRISES, INC.
By:
-------------------------------------
Print Name:
-----------------------------
Title:
---------------------------------
SELLING SHAREHOLDERS:
----------------------------------------
Xxxxx X. Xxxxxxx, Xx.
THE XXXXX X. XXXXXXX, XX. CHARITABLE
REMAINDER UNITRUST
By:
------------------------------------
Xxxx X. XxXxxxxx, Trustee
By:
------------------------------------
Xxxxxx X. Xxxxxx, Trustee
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.
20
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
=========
21
SCHEDULE II
Significant Subsidiaries
------------------------
Restland Funeral Home, Inc.
Cemetery Management, Inc.
S. E. Mid-Atlantic, Inc.
S. E. South Central, Inc.
S. E. Australia, Inc.
Woodlawn Park Cemetery Co., Inc.
22
