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EXHIBIT 1
3,807,294 SHARES
TCA CABLE TV, INC.
COMMON STOCK
PLACEMENT AGENT AGREEMENT
May __, 1998
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Dear Sirs:
The Estate of Xxxxxx X. Xxxxxx, Deceased (the "ESTATE") owns or has the
right to acquire 3,774, 594 shares of the common stock, par value $0.10 per
share (the "COMMON STOCK"), of TCA Cable TV, Inc., a Texas corporation (the
"COMPANY"); and the Xxxxxx Property Trust (the "TRUST") owns or has the right to
acquire 150,000 shares of the Common Stock of the Company. The Estate and the
Trust (collectively, the "SELLERS") have severally appointed you as their
exclusive placement agent (the "PLACEMENT AGENT") in connection with the sale of
3,707,294 shares of Common Stock owned by the Estate and 100,000 shares owned by
the Trust (collectively, the "SHARES"). The Company has agreed to assist each
Seller in the orderly disposition of the Shares in an Agreement dated as of
April 29, 1998 (the "COMPANY AGREEMENT") among the Company and the Sellers.
The Common Stock, including the Shares, has attached thereto rights
(the "RIGHTS") to purchase one ten-thousandth of a share of Series A Junior
Participating Preferred Stock, par value $1.00 per share, of the Company at a
price of $170 per share exercisable only upon the occurrence of certain events.
The Rights have been issued pursuant to a Rights Agreement dated as of January
15, 1998 (the "RIGHTS AGREEMENT") between the Company and ChaseMellon
Shareholder Services, L.L.C., as Rights Agent.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement, including a prospectus, relating to the
Shares. The registration statement, including the exhibits thereto, as amended,
to the date of this Agreement is hereinafter referred to as the "REGISTRATION
STATEMENT." The prospectus previously furnished to you relating to the
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Registration Statement in the form to be used to confirm sales of the Shares is
hereinafter referred to as the "BASIC PROSPECTUS." The Company proposes to file
with the Commission pursuant to Rule 424 under the Securities Act of 1933, as
amended (the "SECURITIES ACT"), a supplement (the "PROSPECTUS SUPPLEMENT") to
the Basic Prospectus relating to the offering of the Shares pursuant to this
Agreement. The term "PROSPECTUS" means the Basic Prospectus together with the
Prospectus Supplement in the form first used to confirm sales of the Shares. As
used herein, the terms "Registration Statement", "Basic Prospectus" and
"Prospectus" shall include in each case the documents, if any, incorporated by
reference therein. The terms "SUPPLEMENT," "AMENDMENT" and "AMEND" as used
herein shall include all documents deemed to be incorporated by reference in the
Prospectus that are filed subsequent to the date of the Basic Prospectus by the
Company with the Commission pursuant to the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT").
The Placement Agent, acting as agent for the Sellers, will use reasonable
efforts to solicit offers to purchase the Shares in accordance with the terms of
the Company Agreement for settlement at 9:00 A.M. (New York City time) on May ,
1997 or such other time on the same or such other date as the Placement Agent
and the Sellers shall agree in writing. The time and date of the delivery of the
Shares to be sold is hereinafter referred to as the CLOSING DATE.
In connection with the proposed offering and sale of the Shares, the
parties hereto agree as follows:
SECTION 1. Representations and Warranties of the Company. The Company
represents and warrants to and agrees with you and each Seller that:
(a) The Registration Statement has become effective; and no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission.
(b) (i) Each document filed or to be filed pursuant to the Exchange
Act and incorporated by reference in the Prospectus complied or will
comply when so filed in all material respects with the Exchange Act; (ii)
the Registration Statement, when it became effective, did not contain,
and as of the date of this Agreement does not contain, and, as amended,
if applicable, will not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; (iii) the
Registration Statement, the Basic Prospectus and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the
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Securities Act; and (iv) the Prospectus does not contain and, as
amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading; except that the representations and
warranties set forth in this paragraph do not apply to statements or
omissions in the Registration Statement or the Prospectus based upon
information relating to (a) the Placement Agent furnished to the Company
in writing by the Placement Agent expressly for use therein or (b) the
Sellers furnished to the Company in writing by the Sellers expressly for
use therein.
(c) The Company and each of its subsidiaries have been duly
incorporated and are validly existing as corporations in good standing
under the laws of their respective jurisdictions of incorporation, are
duly qualified to do business and are in good standing as foreign
corporations in each jurisdiction in which their respective ownership or
lease of property or the conduct of their respective businesses requires
such qualification, and have all power and authority necessary to own or
hold their respective properties and to conduct the businesses in which
they are engaged, except where the failure to so qualify or have such
power and authority would not have, singularly or in the aggregate, a
material adverse effect on the condition (financial or otherwise),
results of operations, business or prospects of the Company and its
subsidiaries taken as a whole.
(d) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable and conform to the description thereof contained in the
Prospectus.
(e) The execution, delivery and performance of this Agreement and the
Company Agreement by the Company and the consummation of the transactions
contemplated hereby and thereby will not result in a breach or violation
of any of the terms or provisions of, or constitute a default under, any
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or
by which the Company or any of its subsidiaries is bound or to which any
of the property or assets of the Company or any of its subsidiaries is
subject, nor will such actions result in any violation of the provisions
of the charter or by-laws of the Company or any of its subsidiaries or
any statute or any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or
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any of its subsidiaries or any of their properties or assets; and
except for the registration of the Shares under the Securities Act, and
such consents, approvals, authorizations, registrations or qualifications
as may be required under applicable state securities laws in connection
with the offering of the Shares, no consent, approval, authorization or
order of, or filing or registration with, any such court or governmental
agency or body is required for the execution, delivery and performance of
this Agreement or the Company Agreement by the Company and the
consummation of the transactions contemplated hereby.
(f) The financial statements (including the related notes and
supporting schedules) filed as part of the Registration Statement or
included or incorporated by reference in the Prospectus present fairly
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.
(g) There are no contracts or other documents which are required to
be described in the Prospectus or filed as exhibits to the Registration
Statement by the Securities Act and which have not been so described or
filed.
(h) There are no legal or governmental proceedings pending to which
the Company or any of its subsidiaries is a party or of which any
property or assets of the Company or any of its subsidiaries is the
subject which, singularly or in the aggregate, if determined adversely to
the Company or any of its subsidiaries, are reasonably likely to have a
material adverse effect on the condition (financial or otherwise),
results of operations, business or prospects of the Company and its
subsidiaries taken as a whole; and to the best of the Company's
knowledge, no such proceedings are threatened or contemplated by
governmental authorities or threatened by others.
(i) Neither the Company nor any of its subsidiaries (i) is in
violation of its charter or by-laws, (ii) is in default in any material
respect, and no event has occurred which, with notice or lapse of time or
both, would constitute such a default, in the due performance or
observance of any term, covenant or condition contained in any material
indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which it is a party or by which it is bound or to which any
of its property or assets is subject or (iii) is in violation in any
respect of any law, ordinance, governmental rule, regulation or court
decree to which it
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or its property or assets may be subject, except any violation or
default that would not have a material adverse effect on the condition
(financial or otherwise), results of operations, business or prospects of
the Company and its subsidiaries taken as a whole.
(j) The Company and each of its subsidiaries possess all material
licenses, certificates, authorizations and permits issued by, and have
made all declarations and filings with, the appropriate state, federal or
foreign regulatory agencies or bodies which are necessary or desirable
for the ownership of their respective properties or the conduct of their
respective businesses as described in the Prospectus, except where the
failure to possess or make the same would not have, singularly or in the
aggregate, a material adverse effect on the condition (financial or
otherwise), results of operations, business or prospects of the Company
and its subsidiaries taken as a whole, and the Company has not received
notification of any revocation or modification of any such license,
authorization or permit and has no reason to believe that any such
license, certificate, authorization or permit will not be renewed.
(k) The Company has full right, power and authority to execute and
deliver this Agreement and the Company Agreement, and to perform its
obligations hereunder and thereunder; and all corporate action required
to be taken for the due and proper authorization, execution and delivery
of this Agreement and the Company Agreement and the consummation of the
transactions contemplated by this Agreement and the Company Agreement
have been duly and validly taken.
(l) There are no persons with registration or other similar rights
either to have any securities registered pursuant to the Registration
Statement or to have any securities otherwise registered by the Company
under the Securities Act in connection with or as a result of the
execution, delivery and performance of this Agreement.
(m) Neither the Company nor any of its subsidiaries is an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended (the "Investment Company Act"), and the rules and regulations of
the Commission thereunder.
(n) Any certificate signed by any officer of the Company and
delivered to the Placement Agent or counsel for the Placement Agent in
connection with the offering of the Securities shall be deemed a
representation and warranty by the Company, as to matters covered
thereby, to the Placement Agent.
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SECTION 2. Representations and Warranties of the Sellers. Each Seller
represents and warrants to the Placement Agent that:
(a) Such Seller is the lawful owner of the Shares which may be sold
by such Seller pursuant to this Agreement and has, and on the Closing
Date will have, good and clear title to such Shares, free of all
restrictions on transfer, liens, encumbrances, security interests,
equities and claims whatsoever.
(b) Such Seller has, and on the Closing Date will have, full legal
right, power and authority, and all authorization and approval required
by law, to enter into this Agreement, and to sell, assign, transfer and
deliver the Shares to be sold by such Seller in the manner provided
herein and in the Prospectus.
(c) This Agreement has been duly authorized, executed and delivered
by or on behalf of such Seller.
(d) Upon delivery of and payment for the Shares to be sold by such
Seller pursuant to this Agreement, good and clear title to such Shares
will pass to the purchasers thereof, free of all restrictions on
transfer, liens, encumbrances, security interests, equities and claims
whatsoever.
(e) The execution, delivery and performance of this Agreement, the
compliance by such Seller with all the provisions hereof and the
consummation of the transactions contemplated hereby will not (i) require
any consent, approval, authorization or other order of, or qualification
with, any court or governmental body or agency (except for the
registration of the Shares under the Securities Act and such consents,
approvals, authorizations, orders or qualifications as may be required
under the securities or Blue Sky laws of the various states), (ii)
conflict with or constitute a breach of any of the terms or provisions
of, or a default under, the organizational documents of such Seller, if
such Seller is not an individual, or any indenture, loan agreement,
mortgage, lease or other agreement or instrument to which such Seller is
a party or by which such Seller or any property of such Seller is bound
or (iii) violate or conflict with any applicable law or any rule,
regulation, judgment, order or decree of any court or any governmental
body or agency having jurisdiction over such Seller or any property of
such Seller.
(f) The information in the Prospectus under the caption "Selling
Shareholders" which specifically relates to such Seller does not, and
will
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not on the Closing Date, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading
(g) At any time during the period described in Section 4(e), if there
is any change in the information referred to in Section 2(f), such Seller
will immediately notify you of such change.
(h) Each certificate signed by or on behalf of such Seller and
delivered to the Placement Agent or counsel for the Placement Agent shall
be deemed to be a representation and warranty by such Seller to the
Placement Agent as to the matters covered thereby.
SECTION 3. Placement Agent Fees, Agency Appointment. (a) For the
services provided by the Placement Agent to the Sellers under this Agreement,
the Sellers shall pay the Placement Agent the fees and reimburse the expenses
previously agreed to in the letter agreement dated as of March 24, 1998, as
amended on April , 1998, among the Placement Agent and the Sellers (the
"ENGAGEMENT LETTER").
(b) In acting under this Agreement and in connection with the sale of
any Shares by a Seller, the Placement Agent is acting solely as agent of each
Seller and does not assume any obligation towards or relationship of agency or
trust with any purchaser of Shares. The Placement Agent shall make reasonable
efforts to assist the Sellers in obtaining performance by each purchaser whose
offer to purchase Shares has been solicited by the Placement Agent and accepted
by a Seller, but the Placement Agent shall not have any liability to the Sellers
if any such purchase is not consummated for any reason. If a Seller shall
default in its obligations to deliver Shares to a purchaser whose offer it has
accepted, the Seller shall hold the Placement Agent harmless against any loss,
claim, damage or liability arising from or as a result of such default and
shall, in particular, pay to the Placement Agent the fees it would have received
had such sale been consummated.
SECTION 4. Agreements of the Company. The Company agrees with you:
(a) Not to (i) offer, pledge, sell, contract to sell, sell any option
or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, or otherwise transfer or
dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common
Stock or (ii) enter into any swap or other arrangement that transfers all
or a portion of
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the economic consequences associated with the ownership of any shares
of Common Stock (regardless of whether any of the transactions described
in clause (i) or (ii) is to be settled by the delivery of Common Stock,
or such other securities, in cash or otherwise), for a period of 90 days
after the date of the Prospectus Supplement without the prior written
consent of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation.
Notwithstanding the foregoing, during such period (i) the Company may
grant stock options pursuant to the Company's existing stock option plan
and (ii) the Company may issue shares of Common Stock upon the exercise
of an option or warrant or the conversion of a security outstanding on
the date hereof and stock options under the Company's existing stock
option plan. The Company also agrees not to file any registration
statement with respect to any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock for a
period of 90 days after the date of the Prospectus Supplement without the
prior written consent of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation.
(b) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) of any request by the Commission for amendments to
the Registration Statement or amendments or supplements to the Prospectus
or for additional information, (ii) of the issuance by the Commission of
any stop order suspending the effectiveness of the Registration Statement
or of the suspension of qualification of the Shares for offering or sale
in any jurisdiction, or the initiation of any proceeding for such
purposes, (iii) when any amendment to the Registration Statement becomes
effective and (iv) of the happening of any event during the period
referred to in Section 4(e) below which makes any statement of a material
fact made in the Registration Statement or the Prospectus untrue or which
requires any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading. If at
any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, the Company will use its
best efforts to obtain the withdrawal or lifting of such order at the
earliest possible time.
(c) To furnish to you two signed copies of the Registration Statement
as first filed with the Commission and of each amendment to it, including
all exhibits, and to furnish to you and the Placement Agent such number
of conformed copies of the Registration Statement as so filed and of each
amendment to it, without exhibits, but including documents incorporated
by reference as you may reasonably request.
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(d) To prepare the Prospectus, the form and substance of which shall
be reasonably satisfactory to you, and to file the Prospectus in such
form with the Commission within the applicable period specified in Rule
424(b) under the Act; during the period specified in Section 4(e) below,
not to file any further amendment to the Registration Statement and not
to make any amendment or supplement to the Basic Prospectus or Prospectus
of which you shall not previously have been advised or to which you shall
reasonably object after being so advised; and, during such period, to
prepare and file with the Commission, promptly upon your reasonable
request, any amendment to the Registration Statement or amendment or
supplement to the Basic Prospectus or Prospectus which may be necessary
or advisable in connection with the solicitation by you of offers to
purchase the Shares, and to use its best efforts to cause any such
amendment to the Registration Statement to become promptly effective.
(e) Prior to 10:00 A.M., New York City time, on the first business
day after the date of this Agreement and from time to time thereafter for
such period as in the opinion of counsel for the Placement Agent a
prospectus is required by law to be delivered in connection with the
solicitation by the Placement Agent of offers to purchase the Shares, to
furnish in New York City to the Placement Agent as many copies of the
Prospectus (and of any amendment or supplement to the Prospectus) and any
documents incorporated therein by reference, as the Placement Agent may
reasonably request.
(f) If during the period specified in Section 4(e), any event shall
occur or condition shall exist as a result of which, in the opinion of
counsel for the Placement Agent, it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in the
light of the circumstances when the Prospectus is delivered to a
purchaser, not misleading, forthwith to prepare and file with the
Commission an appropriate amendment or supplement to the Prospectus so
that the statements in the Prospectus, as so amended or supplemented,
will not in the light of the circumstances when it is so delivered, be
misleading, or so that the Prospectus will comply with applicable law,
and to furnish to the Placement Agent as many copies thereof as the
Placement Agent may reasonably request.
(g) Prior to any public offering of the Shares, to cooperate with you
and counsel for the Placement Agent in connection with the registration
or qualification of the Shares for offer and sale by the Placement Agent
and by dealers under the state securities or Blue Sky laws of such
jurisdictions as you may request, to continue such registration
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or qualification in effect so long as required for offering of the
Shares in accordance with the Company Agreement and to file such consents
to service of process or other documents as may be necessary in order to
effect such registration or qualification; provided that the Company
shall not be required in connection therewith to qualify as a foreign
corporation in any jurisdiction in which it is not now so qualified or to
take any action that would subject it to general consent to service of
process or taxation other than as to matters and transactions relating to
the Prospectus, the Registration Statement, any preliminary prospectus or
the offering or sale of the Shares, in any jurisdiction in which it is
not now so subject.
(h) To mail and make generally available to its stockholders as soon
as practicable an earnings statement covering the twelve-month period
ending July 31, 1998 that shall satisfy the provisions of Section 11(a)
of the Securities Act, and to advise you in writing when such statement
has been so made available.
SECTION 5. Lockup Agreement of the Sellers. Each Seller agrees with you
not to (i) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, or otherwise transfer or dispose of, directly or
indirectly, any shares of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or (ii) enter into any swap or
other arrangement that transfers all or a portion of the economic consequences
associated with the ownership of any Common Stock (regardless of whether any of
the transactions described in clause (i) or (ii) is to be settled by the
delivery of Common Stock, or such other securities, in cash or otherwise),
except for the sale of Shares contemplated by this Agreement, for a period of 90
days after the date of this Agreement without the prior written consent of
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation. In addition, each Seller
agrees that, for a period of 90 days after the date of this Agreement without
the prior written consent of Xxxxxxxxx, Lufkin & Xxxxxxxx Securities
Corporation, it will not make any demand for, or exercise any right with respect
to, the registration of any shares of Common Stock or any securities convertible
into or exercisable or exchangeable for Common Stock.
SECTION 6. Conditions to Purchase Obligations. The obligation of any
party to purchase the Shares on the Closing Date, whose offer to purchase the
Shares has been solicited by the Placement Agent and accepted by a Seller, will
be subject to the following conditions:
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(a) All the representations and warranties of the Company contained
in this Agreement shall be true and correct on the Closing Date with the
same force and effect as if made on and as of the Closing Date.
(b) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose
shall have been commenced or shall be pending before or contemplated by
the Commission.
(c) You shall have received on the Closing Date a certificate dated
the Closing Date, signed by Xxxx X. Xxxxxxx and Xxxxxx X. Xxxxxx, in
their capacities as the Chief Executive Officer and Chief Financial
Officer of the Company, confirming (i) the matters set forth in Sections
6(a) and 6(b), (ii) that the Company has complied with all of the
agreements and satisfied all of the conditions herein contained and
required to be complied with or satisfied by the Company on or prior to
the Closing Date and (iii) since the respective dates as of which
information is given in the Prospectus other than as set forth in the
Prospectus (exclusive of any amendments or supplements thereto subsequent
to the date of this Agreement) (A) there shall not have occurred any
material adverse change or any development involving a prospective
material adverse change in the condition, financial or otherwise, or the
earnings, business, management or operations of the Company and its
subsidiaries, taken as a whole, (B) there shall not have been any
material adverse change or any development involving a prospective
material adverse change in the capital stock or in the long-term debt of
the Company or any of its subsidiaries and (C) neither the Company nor
any of its subsidiaries shall have incurred any material liability or
obligation, direct or contingent.
(d) Since the respective dates as of which information is given in
the Prospectus other than as set forth in the Prospectus (exclusive of
any amendments or supplements thereto subsequent to the date of this
Agreement), (i) there shall not have occurred any change or any
development involving a prospective change in the condition, financial or
otherwise, or the earnings, business, management or operations of the
Company and its subsidiaries, taken as a whole, (ii) there shall not have
been any change or any development involving a prospective change in the
capital stock or in the long-term debt of the Company or any of its
subsidiaries and (iii) neither the Company nor any of its subsidiaries
shall have incurred any liability or obligation, direct or contingent,
the effect of which, in any such case described in clause 6(c)(ii),
6(d)(i), 6(c)(ii), 6(d)(ii) or 6(c)(ii), 6(d)(iii) of this Section, in
your judgment, is material
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and adverse and, in your judgment, makes it impracticable to market
the Shares on the terms and in the manner contemplated in the Prospectus.
(e) All the representations and warranties of each Seller contained
in this Agreement shall be true and correct on the Closing Date with the
same force and effect as if made on and as of the Closing Date and you
shall have received on the Closing Date a certificate dated the Closing
Date from each Seller to such effect and to the effect that such Seller
has complied with all of the agreements and satisfied all of the
conditions herein contained and required to be complied with or satisfied
by such Seller on or prior to the Closing Date.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Placement Agent), dated the
Closing Date, of Xxxxxxx Xxxxxx LLP, counsel for the Company, to the
effect that:
(i) each of the Company, and its subsidiaries listed in Schedule
I hereto (individually a "Subsidiary" and collectively the
"Subsidiaries") has been duly incorporated or formed and is validly
existing as a corporation in good standing under the laws of the
jurisdiction in which it is chartered or organized or as a partnership
under the laws of the jurisdiction in which it is formed, with full
power and authority to own its properties and conduct its business as
described in the Prospectus, and is duly qualified to do business as a
foreign corporation or partnership and is in good standing, or is duly
qualified to do business as a foreign partnership, in each case under
the laws of each jurisdiction which requires such qualification
wherein it owns or leases material properties or conducts material
business, except where the failure to be so incorporated or formed or
qualified would not have a material adverse effect on the Company and
its subsidiaries taken as a whole;
(ii) all the outstanding shares of capital stock of each
Subsidiary have been duly and validly authorized and issued and are
fully paid and nonassessable, and, except as otherwise set forth in
the Prospectus, all outstanding shares of capital stock of the
Subsidiaries are owned by the Company either directly or through
wholly owned subsidiaries, to the knowledge of such counsel, free and
clear of any security interests, claims, liens or encumbrances;
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(iii) the Company's authorized equity capitalization is as set
forth in the Final Prospectus; and the Shares conform to the
description thereof contained in the Prospectus; and, authorization
for the listing of the Shares on the Nasdaq National Market has been
given;
(iv) the Shares have been duly and validly authorized and issued
and are fully paid and non-assessable;
(v) the Rights Agreement has been duly authorized, executed and
delivered by the Company; the Rights have been duly authorized and
issued by the Company; and the Series A Junior Participating Preferred
Stock, par value $1.00 per share, has been duly authorized by the
Company and validly reserved for issuance upon the exercise of the
Rights and, when issued upon such exercise in accordance with the
terms of the Rights Agreement, will be validly issued, fully paid and
non-assessable;
(vi) to the knowledge of such counsel, there is no pending or
threatened action, suit or proceeding before any court or governmental
agency, authority or body or any arbitrator involving the Company or
any of its subsidiaries of a character required to be disclosed in the
Registration Statement which is not adequately disclosed in the
Prospectus, and there is no franchise, contract or other document of a
character required to be described in the Registration Statement or
Prospectus, or to be filed as an exhibit, which is not described or
filed as required; and the statements included or incorporated in the
Prospectus describing any legal proceedings or material contracts or
agreements relating to the Company fairly summarize such matters;
(vii) based on advice from the Commission, the Registration
Statement has become effective under the Act; any required filing of
the Basic Prospectus and Prospectus, and any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the
time period required by Rule 424(b); to the best knowledge of such
counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued, no proceedings for that
purpose have been instituted or threatened and the Registration
Statement and the Prospectus (other than the financial statements and
other financial and statistical information contained therein as to
which such counsel need express no opinion) comply as to form in all
material respects with the
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applicable requirements of the Securities Act and the Exchange
Act and the respective rules thereunder; and such counsel has no
reason to believe that at time the Registration Statement became
effective or on the date hereof the Registration Statement contained
any untrue statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus as of its
date or the date of such opinion includes any untrue statement of a
material fact or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading;
(viii) this Agreement has been duly authorized, executed and
delivered by the Company;
(ix) no consent, approval, authorization or order of any court or
governmental agency or body is required for the execution, delivery
and performance of this Agreement or the Company Agreement or for the
consummation of the transactions contemplated herein or therein,
except such as have been obtained under the Securities Act and such as
may be required under the blue sky laws of any jurisdiction in
connection with the distribution of the Shares by the Sellers and such
other approvals (specified in such opinion) as have been obtained;
(x) neither the execution and delivery of this Agreement, the
Company Agreement nor the consummation of any other of the
transactions herein or therein contemplated nor the fulfillment of the
terms hereof or thereof will result in a breach or violation of, or
constitute a default under any law or the charter or by-laws of the
Company or the terms of any indenture or other agreement or instrument
known to such counsel and to which the Company or any of its
subsidiaries is a party or bound or any judgment, order or decree
known to such counsel to be applicable to the Company or any of its
subsidiaries of any court, regulatory body, administrative agency,
governmental body or arbitrator having jurisdiction over the Company
or any of its subsidiaries or any of its or their properties or
assets;
(xi) to the best of such counsel's knowledge, no holders of
securities of the Company have rights to the registration of such
securities under the Registration Statement; and
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(xii) the statements set forth under the caption "Business
Legislation and Regulation" in the Company's Annual Report on Form
10-K for the year ended October 31, 1997, to the extent they
represent statements or summaries of legal matters, are true
and correct.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the
State of Texas or the Federal laws of the United States, and as to
matters covered in Section 6(f)(xii), to the extent they deem proper
and specified in such opinion, upon the opinion of other counsel of
good standing whom they believe to be reliable and who are satisfactory
to counsel for the Underwriters and (B) as to matters of fact, to the
extent they deem proper, on certificates of responsible officers of the
Company and public officials. References to the Prospectus in this
paragraph (f) include any supplements thereto at the Closing Date.
The opinion of Xxxxxxx Xxxxxx LLP described in Section 6(f) above shall
be rendered to you at the request of the Company and the Sellers and
shall so state therein.
(g) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Placement Agent), dated the
Closing Date, of Xxxxxxxx & Xxxxx, counsel for the Sellers, to the
effect that:
(i) each Seller is the lawful owner of the Shares to be
sold by such Seller pursuant to this Agreement and has good
and clear title to such Shares, free of all restrictions on
transfer, liens, encumbrances, security interests, equities
and claims whatsoever;
(ii) each Seller has full legal right, power and
authority, and all authorization and approval required by law,
to enter into this Agreement and to sell, assign, transfer and
deliver the Shares to be sold by such Seller in the manner
provided herein;
(iii) upon delivery of and payment for the Shares to be
sold by each Seller pursuant to this Agreement, good and clear
title to such Shares will pass to the purchaser thereof, free
of all restrictions on transfer, liens, encumbrances, security
interests, equities and claims whatsoever; and
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(iv) the execution, delivery and performance of this
Agreement, the compliance by such Seller with all the
provisions hereof and the consummation of the transactions
contemplated hereby will not (A) require any consent,
approval, authorization or other order of, or qualification
with, any court or governmental body or agency (except for the
registration of the Shares under the Securities Act and such
consents, approvals, authorizations, orders or qualifications
as may be required under the securities or Blue Sky laws of
the various states), (B) conflict with or constitute a breach
of any of the terms or provisions of, or a default under, the
organizational documents of such Seller, or any indenture,
loan agreement, mortgage, lease or other agreement or
instrument to which such Seller is a party or by which any
property of such Seller is bound or (C) violate or conflict
with any applicable law or any rule, regulation, judgment,
order or decree of any court or any governmental body or
agency having jurisdiction over such Seller or any property of
such Seller.
(h) You shall have received on the Closing Date an opinion, dated
the Closing Date, of Cravath, Swaine & Xxxxx, counsel for the
Placement Agent, with respect to the Registration Statement, the
Prospectus (together with any supplement thereto), the Shares and
other related matters as the Placement Agent or the purchasers of the
Shares may reasonably require, and the Company and the Sellers shall
have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(i) You shall have received, on each of the date hereof and the
Closing Date, a letter dated the date hereof or the Closing Date, as
the case may be, in form and substance satisfactory to you, from
Coopers & Xxxxxxx, independent public accountants, containing the
information and statements of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained or
incorporated by reference into the Registration Statement and the
Prospectus.
(j) The Shares shall have been duly listed for quotation on the
Nasdaq National Market.
(k) The Company and the Sellers shall not have failed on or prior
to the Closing Date to perform or comply with any of the agreements
herein contained and required to be performed or complied with by the
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Company or the Sellers, as the case may be, on or prior to the Closing
Date.
SECTION 7. Indemnity and Contribution. (a) The Company agrees to
indemnify and hold harmless the Placement Agent, its directors, its officers and
each person, if any, who controls the Placement Agent within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, from and
against any and all losses, claims, damages, liabilities and judgments
(including, without limitation, any legal or other expenses incurred in
connection with investigating or defending any matter, including any action,
that could give rise to any such losses, claims, damages, liabilities or
judgments) caused by any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or any amendment
thereto), the Prospectus (or any amendment or supplement thereto) or any
preliminary prospectus, or caused by any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by any such untrue statement or
omission or alleged untrue statement or omission based upon information relating
to the Placement Agent or a Seller furnished in writing to the Company by the
Placement Agent or such Seller expressly for use therein.
(b) The Placement Agent agrees to indemnify and hold harmless the
Company, its directors, its officers who sign the Registration Statement, each
person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act, each Seller and each person,
if any, who controls such Seller within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to the Placement Agent but only with
reference to information relating to the Placement Agent furnished in writing to
the Company by the Placement Agent expressly for use in the Registration
Statement (or any amendment thereto), the Prospectus (or any amendment or
supplement thereto) or any preliminary prospectus.
(c) In case any action shall be commenced involving any person in
respect of which indemnity may be sought pursuant to Section 7(a) or 7(b) (the
"INDEMNIFIED PARTY"), the indemnified party shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in writing
and the indemnifying party shall assume the defense of such action, including
the employment of counsel reasonably satisfactory to the indemnified party and
the payment of all fees and expenses of such counsel, as incurred (except that
in the case of any action in respect of which indemnity may be sought pursuant
to both Sections 7(a) and 7(b), the Placement Agent shall not be required to
assume the defense of such action pursuant to this Section 7(c), but may
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employ separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
the Placement Agent). Any indemnified party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel shall be at the expense of the indemnified
party unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to assume the defense of such action or employ counsel
reasonably satisfactory to the indemnified party or (iii) the named parties to
any such action (including any impleaded parties) include both the indemnified
party and the indemnifying party, and the indemnified party shall have been
advised by such counsel that there may be one or more legal defenses available
to it which are different from or additional to those available to the
indemnifying party (in which case the indemnifying party shall not have the
right to assume the defense of such action on behalf of the indemnified party).
In any such case, the indemnifying party shall not, in connection with any one
action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for (i) the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) for the Placement Agent, its officers and
directors and all persons, if any, who control the Placement Agent within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act, (ii) the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for the Company, its directors, its officers who
sign the Registration Statement and all persons, if any, who control the Company
within the meaning of either such Section and (iii) the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all Sellers and all persons, if any, who control any Seller within the meaning
of either such Section, and all such fees and expenses shall be reimbursed as
they are incurred. In the case of any such separate firm for the Placement
Agent, its officers and directors and such control persons of the Placement
Agent, such firm shall be designated in writing by Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation. In the case of any such separate firm for the Company
and such directors, officers and control persons of the Company, such firm shall
be designated in writing by the Company. In the case of any such separate firm
for the Sellers and such control persons of any Sellers, such firm shall be
designated in writing by Xxxxxx Trust Company. The indemnifying party shall
indemnify and hold harmless the indemnified party from and against any and all
losses, claims, damages, liabilities and judgments by reason of any settlement
of any action (i) effected with its written consent or (ii) effected without its
written consent if the settlement is entered into more than twenty business days
after the indemnifying party shall have received a request from the indemnified
party for reimbursement for the fees and expenses of counsel (in any case where
such fees and expenses are at the expense of the indemnifying party) and, prior
to
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the date of such settlement, the indemnifying party shall have failed to comply
with such reimbursement request. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement or compromise
of, or consent to the entry of judgment with respect to, any pending or
threatened action in respect of which the indemnified party is or could have
been a party and indemnity or contribution may be or could have been sought
hereunder by the indemnified party, unless such settlement, compromise or
judgment (i) includes an unconditional release of the indemnified party from all
liability on claims that are or could have been the subject matter of such
action and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act, by or on behalf of the indemnified party.
(d) To the extent the indemnification provided for in this Section 7
is unavailable to an indemnified party or insufficient in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities and judgments (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Sellers and the Company on the one hand and the Placement Agent on the other
hand from the offering of the Shares or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Sellers and the Company on the one hand
and the Placement Agent on the other hand in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or
judgments, as well as any other relevant equitable considerations. The relative
benefits received by the Sellers and the Company on the one hand and the
Placement Agent on the other hand shall be deemed to be in the same proportion
as the total net proceeds from the offering (after deducting commissions but
before deducting expenses) received by the Sellers, and the total commissions
received by the Placement Agent, bear to the total price to the public of the
Shares. The relative fault of the Sellers and the Company on the one hand and
the Placement Agent on the other hand 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 or the Sellers on the one hand or the
Placement Agent on the other hand and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Placement Agent agree that it would not be just and
equitable if contribution pursuant to this Section 7(d) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the
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equitable considerations referred to in the immediately preceding paragraph. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages, liabilities or judgments referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses incurred by such indemnified party in
connection with investigating or defending any matter, including any action,
that could have given rise to such losses, claims, damages, liabilities or
judgments. Notwithstanding the provisions of this Section 7, the Placement Agent
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Shares were offered to the public exceeds the
amount of any damages which the Placement Agent has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(e) The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity, including, but not limited to the rights
and remedies available under the Company Agreement and the Engagement Letter.
(f) Each Seller hereby designates Xxxxxx Trust Company, 0000 Xxxx Xxx
Xxxxx Xxxxx, Xxxxxxx, Xxxxx 00000, as its authorized agent, upon which process
may be served in any action which may be instituted in any state or federal
court in the State of New York by the Placement Agent, any director or officer
of the Placement Agent or any person controlling the Placement Agent asserting a
claim for indemnification or contribution under or pursuant to this Section 7,
and each Seller will accept the jurisdiction of such court in such action, and
waives, to the fullest extent permitted by applicable law, any defense based
upon lack of personal jurisdiction or venue. A copy of any such process shall be
sent or given to such Seller, at the address for notices specified in Section 8
hereof.
SECTION 8. Miscellaneous. Notices given pursuant to any provision of
this Agreement shall be addressed as follows: (i) if to the Company, to TCA
Cable TV, Inc., 0000 XXX Xxxx 000, Xxxxx, Xxxxx 00000-0000, (ii) if to the
Sellers, to Xxxxxx Trust Company, 0000 Xxxx Xxx Xxxxx Xxxxx, Xxxxxxx, Xxxxx
00000 and (iii) if to the Placement Agent, to Xxxxxxxxx, Xxxxxx & Xxxxxxxx
Securities Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Syndicate Department, or in any case to such other address as the person to be
notified may have requested in writing.
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The respective indemnities, contribution agreements, representations,
warranties and other statements of the Company, the Sellers and the Placement
Agent set forth in or made pursuant to this Agreement shall remain operative and
in full force and effect, and will survive delivery of and payment for the
Shares, regardless of (i) any investigation, or statement as to the results
thereof, made by or on behalf of Placement Agent, the officers or directors of
the Placement Agent, any person controlling the Placement Agent, the Company,
the officers or directors of the Company, any person controlling the Company,
any Seller or any person controlling such Seller, (ii) acceptance of the Shares
and payment for them by a purchaser and (iii) termination of this Agreement.
The Company agrees to reimburse the Placement Agent, their directors
and officers and any persons controlling the Placement Agent for any and all
fees and expenses (including, without limitation, the fees and disbursements of
counsel) incurred by them in connection with enforcing its rights hereunder
against the Company or the Sellers, as the case may be, (including, without
limitation, pursuant to Section 7 hereof).
Except as otherwise provided, this Agreement has been and is made
solely for the benefit of and shall be binding upon the Company, the Sellers,
the Placement Agent, the Placement Agent's directors and officers, any
controlling persons referred to herein, the Company's directors and the
Company's officers who sign the Registration Statement and their respective
successors and assigns, all as and to the extent provided in this Agreement, and
no other person shall acquire or have any right under or by virtue of this
Agreement, except for the rights provided to purchasers of the Shares under
Section 6.
This Agreement shall be governed and construed in accordance with the
laws of the State of New York.
This Agreement may be signed in various counterparts which together
shall constitute one and the same instrument.
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Please confirm that the foregoing correctly sets forth the agreement
among yourselves, the Company and each Seller.
Very truly yours,
ESTATE OF XXXXXX X. XXXXXX, DECEASED
By: Xxxxxx Trust Company, in its capacity as
sole independent Executor
By:
------------------------------------
Xxxxxxx X. Xxxxxx
Vice Chairman
XXXXXX PROPERTY TRUST
By: Xxxxxx Trust Company, in its capacity
as sole Trustee
By:
-------------------------------------
Xxxxxxx X. Xxxxxx
Vice Chairman
TCA CABLE TV, INC.
By:
---------------------------------------
Xxxxxx X. Xxxxxx
Vice President
Chief Financial Officer
The foregoing Agreement is hereby
confirmed and accepted as of
the date first above written.
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
By:
-----------------------------------
Xxxx Xxxxxxxxx
Managing Director
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SCHEDULE I
[SUBSIDIARIES COVERED IN THE OPINION OF
XXXXXXX XXXXXX LLP]
23
