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EXHIBIT 1
TEXAS INDUSTRIES, INC.
COMMON STOCK
($1.OO Par Value)
UNDERWRITING AGREEMENT
____________, 1998
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UNDERWRITING AGREEMENT
May __, 1998
SBC Warburg Dillon Read Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxx Xxxxxxx & Co. Incorporated
C/o SBC Warburg Dillon Read Inc.
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
as Managing Underwriters
Dear Sirs:
Texas Industries, Inc, a Delaware corporation (the "Company"),
proposes to issue and sell to the underwriters named in Schedule A (the
"Underwriters") ____________ shares (the "Firm Shares") of Common Stock, par
value $ 1.00 per share (the "Common Stock"), of the Company. In addition, solely
for the purpose of covering overallotments, the Company proposes to issue and
sell, at the Underwriters' option, up to ____________ additional shares of the
Common Stock (the "Additional Shares"). The Additional Shares and the Firm
Shares are collectively referred to as the "Shares". The Shares are described in
the Prospectus which is referred to below.
The Company has filed, in accordance with the provisions of
the Securities Act of 1933, as amended, and the rules and regulations thereunder
(collectively, the "Act"), with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3, including a prospectus,
relating to the Shares, which incorporates by reference documents that the
Company has filed in accordance with the provisions of the Securities Exchange
Act of 1934, as amended, and the rules and regulations thereunder (collectively,
the "Exchange Act"). The Company has furnished to you, for use by the
Underwriters and by dealers, copies of one or more preliminary prospectuses and
all documents incorporated by reference therein (collectively, the "Preliminary
Prospectus") relating to the Shares. Except where the context otherwise
requires, the registration statement as in effect at the time of execution of
this Agreement or, if the
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registration statement is not yet effective, as amended when it becomes
effective, including all documents filed as a part thereof or incorporated by
reference therein, and including any registration statement filed pursuant to
Rule 462(b) under the Act increasing the size of the offering registered under
the Act and any information contained in a prospectus subsequently filed with
the Commission pursuant to Rule 424(b) under the Act and deemed to be part of
the registration statement at the time of effectiveness pursuant to Rule 430A
under the Act, is herein called the "Registration Statement", and the
prospectus, including all documents incorporated therein by reference, in the
form filed by the Company with the Commission pursuant to Rule 424(b) under the
Act or, if no such filing is required, in the form of final prospectus included
in the Registration Statement at the time it became effective, is herein called
the "Prospectus".
The Company and the Underwriters agree as follows:
1. Sale and Purchase. On the basis of the representations and
warranties and the other terms and conditions herein set forth, the Company
agrees to sell to the respective Underwriters and each of the Underwriters,
severally and not jointly, agrees to purchase from the Company the number of
Firm Shares set forth opposite the name of such Underwriter on Schedule A, at a
purchase price of $____ per Share. You may release the Firm Shares for public
sale promptly after this Agreement becomes effective. You may from time to time
increase or decrease the public offering price after the initial public offering
to such extent as you may determine.
In addition, on the basis of the representations and
warranties and the other terms and conditions herein set forth, the Company
hereby grants to the several Underwriters an option to purchase, and the
Underwriters shall have the right to purchase, severally and not jointly, from
the Company all or a portion of the Additional Shares as may be necessary to
cover overallotments made in connection with the offering of the Firm Shares, at
the same purchase price per share to be paid by the several Underwriters to the
Company for the Firm Shares. This option may be exercised in whole or in part
from time to time on or before the thirtieth day following the date hereof, by
written notice to the Company. Any such notice shall set forth the aggregate
number of Additional Shares as to which the option is being exercised, and the
date and time when the Additional Shares are to be delivered (any such date and
time being herein referred to as an "additional time of
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purchase"); provided, however, that no additional time of purchase shall occur
earlier than the time of purchase (as defined below) nor earlier than the second
business day* after the date on which the option shall have been exercised nor
later than the eighth business day after the date on which the option shall have
been exercised. The number of Additional Shares to be sold to each Underwriter
at an additional time of purchase shall be the number which bears the same
proportion to the aggregate number of Additional Shares being purchased at such
additional time of purchase as the number of Firm Shares set forth opposite the
name of such Underwriter on Schedule A bears to the total number of Firm Shares
(subject, in each case, to such adjustment as you may determine to eliminate
fractional shares).
2. Payment and Delivery. Payment of the purchase price for the
Firm Shares shall be made to the Company by certified or official bank check, in
immediately available funds, at the office of SBC Warburg Dillon Read Inc. in
New York City, against delivery of the certificates for the Firm Shares to you
for the respective accounts of the Underwriters. Such payment and delivery shall
be made at 9:30 A.M., New York City time, on May __, 1998 (unless another time
shall be agreed to by you and the Company or unless postponed in accordance with
the provisions of Section 8). The time at which such payment and delivery are
actually made is called the "time of purchase". Certificates for the Firm Shares
shall be delivered to you in definitive form in such names and in such
denominations as you shall specify on the second business day preceding the time
of purchase. For the purpose of expediting the checking of the certificates for
the Firm Shares by you, the Company agrees to make such certificates available
to you for such purpose at least one full business day preceding the time of
purchase.
Payment of the purchase price for the Additional Shares shall
be made at the additional time of purchase in the same manner and at the same
office as the payment for the Firm Shares. Certificates for the Additional
Shares shall be delivered to you in definitive form in such names and in such
denominations as you shall specify on the second business day preceding the
additional time of purchase. For the purpose of expediting the checking of the
certificates for the Additional Shares by you, the Company agrees to make such
certificates available to you for such purpose at least
--------------------------
* As used herein, "business day" shall mean a day on which the New York
Stock Exchange is open for trading.
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one full business day preceding the additional time of purchase.
3. Representations and Warranties of the Company. The Company
represents and warrants to each of the Underwriters that:
(a) Each Preliminary Prospectus filed as part of the
Registration Statement as originally filed or as part of any amendment
thereto, or filed pursuant to Rule 424 under the Act, complied when so
filed in all material respects with the Act; when the Registration
Statement becomes or became effective and at all times subsequent
thereto up to the time of purchase and the additional time of purchase,
the Registration Statement and the Prospectus, and any supplements or
amendments thereto, complied and will comply in all material respects
with the provisions of the Act; and the Registration Statement at all
such times did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, and
the Prospectus at all such times did not and will not contain an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representation or warranty
with respect to any statement contained in the Registration Statement
or the Prospectus in reliance upon and in conformity with information
concerning the Underwriters and furnished in writing by or on behalf of
any Underwriter through you to the Company expressly for use in the
Registration Statement or the Prospectus and set forth in the section
of the Registration Statement and the Prospectus entitled
"Underwriting"; the documents incorporated by reference in the
Prospectus, at the time they were filed with the Commission, complied
in all material respects with the requirements of the Exchange Act, and
do not contain an untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading.
(b) As of the date of this Agreement, the Company has an
authorized capitalization as set forth under the column entitled
"February 28, 1998 Actual" in the section of the Registration Statement
and the Prospectus entitled "Capitalization" and, as of the time of
purchase, the capitalization of the Company
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will be as set forth under the column entitled " February 28, 1998 As
Adjusted" in the section of the Registration Statement and the
Prospectus entitled "Capitalization"; all of the issued and
outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and nonassessable and
are free of statutory and contractual preemptive rights.
(c) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with full power and authority to (i) own its properties and
conduct its business as described in the Registration Statement and the
Prospectus and (ii) execute and deliver this Agreement and to issue,
sell and deliver the Shares as herein contemplated.
(d) All of the issued and outstanding shares of capital stock
of each of the subsidiaries of the Company and all of the outstanding
partnership interests of each partnership operated by the Company
(collectively referred to as the "Subsidiaries") are owned directly by
the Company; all of such shares have been duly authorized and validly
issued and are fully paid and (except for general partnership
interests) nonassessable and, except as described in the Prospectus,
are owned free and clear of any pledge, lien, encumbrance, security
interest or other claim; there are no outstanding rights,
subscriptions, warrants, calls, preemptive rights, options or other
agreements of any kind with respect to the capital stock of any of the
Subsidiaries].
(e) Each of the Subsidiaries has been duly formed and is
validly existing as a corporation or partnership, as the case may be,
in good standing under the laws of its respective jurisdiction of
incorporation or organization, with full power and authority to own its
respective properties and to conduct its respective businesses.
(f) Each of the Company and each of the Subsidiaries is duly
qualified or licensed by and is in good standing in each jurisdiction
in which it owns or leases property or conducts its business and in
each other jurisdiction in which the failure, individually or in the
aggregate, to be so qualified or licensed could have a material adverse
effect on the properties, assets, operations, business, business
prospects or condition (financial or other) of the Company and the
Subsidiaries taken as a whole; each of the Company and each of the
Subsidiaries is in compliance in all material respects with the laws,
orders, rules,
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regulations and directives issued or administered by each such
jurisdiction.
(g) Neither the Company nor any of the Subsidiaries is in
breach of, or in default under (nor has any event occurred which with
notice, lapse of time or both would constitute a breach of, or default
under), its charter or bylaws, or in the performance or observance of
any obligation, agreement, covenant or condition contained in any
license, indenture, lease, mortgage, deed of trust, bank loan or credit
agreement, material supply agreement or other agreement or instrument
to which the Company or any of the Subsidiaries is a party or by which
any of them may be bound or affected. The execution, delivery and
performance of this Agreement, the issuance and sale of the Shares, the
application of the net proceeds thereof as described in the Prospectus
and the consummation of the transactions contemplated hereby will not
conflict with, or result in any breach of or constitute a default under
(nor constitute any event which with notice, lapse of time or both
would constitute a breach of, or default under), the charter or bylaws
of the Company or any of the Subsidiaries or under any provision of any
license, indenture, lease, mortgage, deed of trust, bank loan or credit
agreement, material supply agreement or other agreement or instrument
to which the Company or any of the Subsidiaries is a party or by which
any of them or their properties may be bound or affected, or under any
federal, state, local or foreign law, regulation or rule or any decree,
judgment or order applicable to the Company or any of the Subsidiaries.
(h) The Firm Shares and the Additional Shares, when issued and
delivered to and paid for by the Underwriters as contemplated hereby,
will be duly authorized and validly issued and fully paid and
nonassessable, free and clear of any pledge, lien, encumbrance,
security interest, preemptive right or other claim.
(i) This Agreement has been duly authorized, executed and
delivered by the Company.
(j) The capital stock of the Company, including the Shares,
conforms in all material respects to the description thereof contained
in the Registration Statement and the Prospectus; and the certificates
for the Shares are in due and proper form and the holders of the Shares
after making payment therefor will not be subject to personal liability
by reason of being such holders.
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(k) No approval, authorization, consent or order of or filing
with any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency is required in connection
with the issuance and sale of the Shares as contemplated hereby, other
than registration of the Shares under the Act, clearance of the
offering of the Shares with the National Association of Securities
Dealers, Inc. (the "NASD") and any necessary qualification under the
securities or blue sky laws of the various jurisdictions in which the
Shares are being offered by the Underwriters.
(l) No person has the right, contractual or otherwise, to
cause the Company to issue to it, or register pursuant to the Act, any
securities of the Company in consequence of the issue and sale of the
Shares to the Underwriters hereunder.
(m) Ernst & Young LLP, whose reports on the consolidated
financial statements of the Company and the Subsidiaries are included
or incorporated by reference in the Registration Statement and the
Prospectus, are independent public accountants with respect to the
Company as required by the Act and the applicable published rules and
regulations thereunder.
(n) All legal or governmental proceedings, contracts or
documents of a character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement have been so described or filed as required.
(o) There is no action, suit or proceeding pending or
threatened against the Company or any of the Subsidiaries or any of
their properties, at law or in equity, or before or by any federal,
state, local or foreign governmental or regulatory commission, board,
body, authority or agency that could result in a judgment, decree or
order having a material adverse effect on the properties, assets,
operations, business, business prospects or condition (financial or
other) of the Company and the Subsidiaries taken as a whole.
(p) The audited and unaudited financial statements included in
the Registration Statement and the Prospectus present fairly the
consolidated financial condition of the Company and the Subsidiaries as
of the dates indicated and the consolidated results of operations and
cash flows of the Company and the Subsidiaries for the periods
specified; such financial statements have been prepared in conformity
with
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generally accepted accounting principles applied on a consistent
basis during the periods involved.
(q) Subsequent to the respective dates as of which information
is given in the Registration Statement and the Prospectus, and except
as may be otherwise stated in the Registration Statement or the
Prospectus, there has not been: (A) any material adverse change in the
properties, assets, operations, business, business prospects or
condition (financial or other), present or prospective, of the Company
and the Subsidiaries taken as a whole; (B) any transaction, that is
material to the Company and the Subsidiaries taken as a whole,
contemplated or entered into by the Company or any of the Subsidiaries;
or (C) any obligation, contingent or otherwise, directly or indirectly
incurred by the Company or any of the Subsidiaries that is material to
the Company and the Subsidiaries taken as a whole.
[(r) The Company has obtained the agreement of the
shareholders listed on Schedule B not to sell, contract to sell, grant
any option to sell, transfer or otherwise dispose of, directly or
indirectly, any shares of Common Stock, or securities convertible into
or exchangeable for Common Stock or warrants or other rights to
purchase Common Stock, for a period of 90 days from the date of the
Prospectus without the prior written consent of SBC Warburg Dillon Read
Inc.--TO BE DISCUSSED]
(s) Neither the Company nor any of the Subsidiaries has
violated any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the environment
or hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), nor any federal or state law relating to
discrimination in the hiring, promotion or pay of employees nor any
applicable federal or state wages and hours laws, nor any provisions of
the Employee Retirement Income Security Act or the rules and
regulations promulgated thereunder, which in each case might result in
any material adverse effect on the properties, assets, operations,
business, business prospects or condition (financial or other) of the
Company and the Subsidiaries taken as a whole.
(t) The Company and each of the Subsidiaries has such permits,
licenses, franchises and authorizations of governmental or regulatory
authorities ("permits"), including without limitation under any
applicable Environmental Laws, as are necessary to own, lease and
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operate its respective properties and to conduct its business; the
Company and each of the Subsidiaries has fulfilled and performed all of
its material obligations with respect to such permits and no event has
occurred which allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other material
impairment of the rights of the holder of any such permit; and, except
as described in the Prospectus, such permits contain no restrictions
that are materially burdensome to the Company or any of the
Subsidiaries.
(u) In the ordinary course of its business, the Company
conducts a periodic review of the effect of Environmental Laws on the
business, operations and properties of the Company and the
Subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including without limitation any
capital or operating expenditure required for clean-up, closure of
properties or compliance with Environmental Laws or any permit, license
or approval, any related constraints on operating activities and any
potential liabilities to third parties). On the basis of such review,
the Company reasonably has concluded that such associated costs and
liabilities, singly or in the aggregate, would not have a material
adverse effect on the properties, assets, operations, business,
business prospects or condition (financial or other) of the Company and
the Subsidiaries taken as a whole.
(v) Neither the Company nor any of the Subsidiaries, nor any
employee of the Company or any of the Subsidiaries, has made any
payment of funds of the Company or any of the Subsidiaries prohibited
by law, and no funds of the Company or any of the Subsidiaries have
been set aside to be used for any payment prohibited by law.
(w) The Company and the Subsidiaries have filed all federal or
state income or franchise tax returns required to be filed and have
paid all taxes shown thereon as due, and there is no material tax
deficiency which has been or might be asserted against the Company or
any of the Subsidiaries; all material tax liabilities are adequately
provided for on the books of the Company and the Subsidiaries.
(x) The Company and the Subsidiaries have good title to all
properties and assets owned or leased by them, in each case free and
clear of all liens, security interests, pledges, charges, encumbrances,
mortgages and defects (except such as are described or referred to in
the Prospectus and the financial statements and the notes thereto
contained therein or
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such as do not interfere with the use made and proposed to be made of
such property by the Company and the Subsidiaries).
(y) Neither the Company nor any of the Subsidiaries is an
"investment company" within the meaning of the Investment Company Act
of 1940, as amended, or is subject to regulation under such Act.
4. Certain Covenants of the Company. The Company hereby
agrees:
(a) to furnish such information as may be required and
otherwise to cooperate in qualifying the Shares for offering and sale
under the securities or blue sky laws of such states as you may
designate and to maintain such qualifications in effect as long as
required for the distribution of the Shares, provided that the Company
shall not be required to qualify as a foreign corporation or to consent
to the service of process under the laws of any such state (except
service of process with respect to the offering and sale of the
Shares); promptly to advise you 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 such purpose; and to use its best efforts to obtain
the withdrawal of any order of suspension at the earliest practicable
moment;
(b) to make available to you in New York City, as soon as
practicable after the Registration Statement becomes effective, and
thereafter from time to time to furnish to the Underwriters, as many
copies of the Prospectus (or of the Prospectus as amended or
supplemented if the Company shall have made any amendment or supplement
thereto after the effective date of the Registration Statement) as the
Underwriters may request for the purposes contemplated by the Act;
(c) to advise you promptly and if requested by you to confirm
such advice in writing, (i) when the Registration Statement has become
effective and when any post-effective amendment thereto becomes
effective and (ii) when the Prospectus is filed with the Commission
pursuant to Rule 424(b) under the Act, if required under the Act (which
the Company agrees to file in a timely manner under such Rule);
(d) to advise you promptly, confirming such advice in writing,
of any request by the Commission for amendments or supplements to the
Registration Statement or the Prospectus or for additional information
with respect thereto, or of notice of institution of
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proceedings for or the entry of a stop order suspending the
effectiveness of the Registration Statement and, if the Commission
should enter a stop order suspending the effectiveness of the
Registration Statement, to use its best efforts to obtain the lifting
or removal of such order as soon as possible; to advise you promptly
of any proposal to amend or supplement the Registration Statement or
the Prospectus, including by filing any document that would be
incorporated therein by reference, and to file no such amendment or
supplement to which you shall object in writing;
(e) to furnish to you and, upon request to each of the other
Underwriters, for a period of five years from the date of this
Agreement (i) copies of all reports or other communications that the
Company shall send to its shareholders or from time to time shall
publish or publicly disseminate and (ii) copies of all annual,
quarterly and current reports filed with the Commission on Forms 10-K,
10-Q and 8-K, or such other similar form as may be designated by the
Commission, and any other document filed by the Company pursuant to
Section 12, 13, 14 or 15(d) of the Exchange Act;
(f) to advise the Underwriters promptly of the happening of
any event known to the Company within the time during which a
prospectus relating to the Shares is required to be delivered under the
Act that, in the reasonable judgment of the Company, would require the
making of any change in the Prospectus then being used, or in the
information incorporated therein by reference, so that the Prospectus,
as then supplemented, would not include an 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
are made, not misleading and, during such time, promptly to prepare and
furnish, at the Company's expense, to the Underwriters such amendments
or supplements to such Prospectus as may be necessary to reflect any
such change in such quantities as requested by the Underwriters, and to
furnish to you a copy of such proposed amendment or supplement before
filing any such amendment or supplement with the Commission;
(g) to make generally available to its security holders, and
to deliver to you, an earnings statement of the Company (which need not
be audited and which will satisfy the provisions of Section 11(a) of
the Act including, at the option of the Company, Rule 158) covering a
period of 12 months beginning after the effective date of the
Registration Statement but ending not later than 15 months after the
date of the Registration Statement, as soon as is reasonably
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practicable after the termination of such 12-month period;
(h) to furnish to you four signed copies of the Registration
Statement, as initially filed with the Commission, and of all
amendments thereto (including all exhibits thereto and documents
incorporated by reference therein) and sufficient conformed copies of
the foregoing (other than exhibits) for distribution of a copy to each
of the other Underwriters;
(i) to furnish to you as early as practicable prior to the
time of purchase and the additional time of purchase, as the case may
be, but not later than two business days prior thereto, a copy of the
latest available unaudited interim consolidated financial statements,
if any, of the Company and the Subsidiaries that have been read by the
Company's independent certified public accountants as stated in their
letter to be furnished pursuant to Section 6(b);
(j) to apply the net proceeds from the sale of the Shares in
the manner set forth under the caption "Use of Proceeds" in the
Registration Statement and the Prospectus;
(k) to use its best efforts to cause the Shares to be
included in the Nasdaq National Market;
(l) whether or not the transactions contemplated in this
Agreement are consummated or this Agreement otherwise becomes effective
or is terminated, to pay all expenses, fees and taxes (other than (x)
any transfer taxes and (y) fees and disbursements of your counsel
except as set forth under Section 5 and clauses (iii) and (iv) below)
in connection with (i) the preparation and filing of the Registration
Statement, each Preliminary Prospectus, the Prospectus and any
amendment or supplement thereto, and the printing and furnishing of
copies of each thereof to you and to dealers (including costs of
mailing and shipment), (ii) the issuance, sale and delivery of the
Shares, (iii) the word processing or printing of this Agreement and any
dealer agreements, and the reproduction or printing and furnishing of
copies of each thereof to you and to dealers (including costs of
mailing and shipment), (iv) the qualification of the Shares for
offering and sale under state laws as aforesaid (including legal fees
and filing fees and other disbursements of your counsel) and the
printing and furnishing of copies of any blue sky surveys to you and to
dealers, (v) any listing of the Shares on any securities exchange or
qualification of the Shares for inclusion in the Nasdaq National Market
and any
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registration thereof under the Exchange Act, (vi) any filing
for review of the public offering of the Shares by the NASD and (viii)
the performance of the Company's other obligations hereunder;
[(m) not to sell, contract to sell, grant any option to sell,
transfer or otherwise dispose of, directly or indirectly, any shares of
Common Stock or securities convertible into or exchangeable for Common
Stock or warrants or other rights to purchase Common Stock or permit
the registration under the Act of any shares of Common Stock, except
for the registration of the Shares and the sales to you pursuant to
this Agreement for a period commencing on the date hereof and
continuing for 90 days after the date of the Prospectus, without the
prior written consent of SBC Warburg Dillon Read Inc.;--TO BE
DISCUSSED] and
(n) to refrain from investing the proceeds from the sale of
the Shares in a manner to cause the Company or any of the Subsidiaries
to become an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
5. Reimbursement of Underwriters' Expenses. If the Firm Shares
or the Additional Shares are not delivered for any reason, other than the
failure of the Underwriters to purchase the Firm Shares or the Additional Shares
as provided herein (unless such failure is permitted under the provisions of
Section 6 or Section 7(b) of this Agreement), the Company will reimburse the
Underwriters for all of their out-of-pocket expenses, including the fees and
disbursements of their counsel.
6. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters hereunder are subject to the accuracy of the
representations and warranties on the part of the Company on the date hereof and
at the time of purchase (and the several obligations of the Underwriters at any
additional time of purchase are subject to the accuracy of the representations
and warranties on the part of the Company on the date hereof and at the time of
purchase and at such additional time of purchase, as the case may be), the
performance by the Company of its obligations hereunder and to the following
conditions:
(a) The Company shall furnish to you at the time of purchase
and at such additional time of purchase, as the case may be, an opinion
of Xxxxx Xxxxxxx Rain Xxxxxxx (A Professional Corporation), counsel for
the Company, addressed to the Underwriters and dated the time of
purchase or such additional time of purchase, as the case may be, with
reproduced copies for each of
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the other Underwriters and in form satisfactory to Xxxxxx, Xxxx &
Xxxxxxxx LLP, counsel for the Underwriters, stating that:
(i) the Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with full corporate power and
authority (A) to own its properties and conduct its business
as described in the Registration Statement and the Prospectus
and (B) to execute and deliver this Agreement and to issue,
sell and deliver the Shares as herein contemplated;
(ii) each of the Subsidiaries has been duly formed
and is validly existing as a corporation or partnership, as
the case may be, in good standing under the laws of the state
in which such Subsidiary is incorporated or organized, with
full power and authority to own its properties and to conduct
its business as described in the Registration Statement and
the Prospectus];
(iii) each of the Company and each of the Subsidiaries
is duly qualified or licensed to do business by and is in good
standing as a foreign corporation in each jurisdiction in
which it conducts business or owns property and in which the
failure, individually or in the aggregate, to be so licensed
or qualified could have a material adverse effect on the
properties, assets, operations, business, business prospects
or condition (financial or other) of the Company and the
Subsidiaries taken as a whole;
(iv) all of the issued and outstanding shares of
capital stock of each Subsidiary have been duly authorized and
validly issued and are fully paid and nonassessable and,
except as set forth in the Prospectus, are owned, directly or
indirectly, by the Company free and clear of any pledge, lien,
encumbrance, security interest, preemptive right or other
claim, and there are no rights, warrants, options or other
agreements to acquire or instruments convertible into or
exchangeable for any shares of capital stock or other equity
interest of any Subsidiary, except as set forth in the
Prospectus;
(v) this Agreement has been duly authorized,
executed and delivered by the Company;
(vi) (a) the Shares, when issued and delivered to and
paid for by the Underwriters,
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will be duly authorized, validly issued, fully paid
and nonassessable, and will be free of any pledge, lien,
encumbrance, claim or preemptive right; and (b) the
certificates for the Shares are in due and proper form and
the holders of the Shares will not be subject to personal
liability by reason of being such holders;
(vii) (a) the Company has an authorized capitalization
as set forth under the heading "Capitalization" in the
Registration Statement and the Prospectus, and (b) the
outstanding shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid,
nonassessable and free of statutory and contractual preemptive
rights;
(viii) the capital stock of the Company, including the
Shares, conforms in all material respects to the description
thereof contained in the Registration Statement and the
Prospectus;
(ix) the Registration Statement and the Prospectus
(except as to the financial statements and schedules contained
or incorporated by reference therein as to which such counsel
need express no opinion) comply as to form in all material
respects with the requirements of the Act;
(x) the Registration Statement has become effective
under the Act and, to the best of such counsel's knowledge, no
stop order proceedings with respect thereto are pending or
threatened under the Act;
(xi) no approval, authorization, consent or order of
or filing with any federal, state, local or foreign
governmental or regulatory commission, board, body, authority
or agency is required in connection with the issuance or sale
of the Shares as contemplated hereby other than registration
of the Shares under the Act (except such counsel need express
no opinion as to any necessary qualification under the state
securities or blue sky laws of the various jurisdictions in
which the Shares are being offered by the Underwriters);
(xii) the execution, delivery and performance of this
Agreement by the Company, the issuance and sale of the Shares,
the application of the net proceeds thereof as described in
the Prospectus and the consummation by the Company of the
transactions contemplated hereby do not and will
15
17
not conflict with, or result in any breach of, or constitute a
default under (nor constitute any event which with notice,
lapse of time or both would constitute a breach of or default
under), the charter or bylaws of the Company or any of the
Subsidiaries, or any provision of any license, indenture,
lease, mortgage, deed of trust, bank loan or credit agreement
or other agreement or instrument to which the Company or any
of the Subsidiaries is a party or by which the Company or any
of the Subsidiaries or their properties are bound or affected,
or under any federal, state, local or foreign law, regulation
or rule or any decree, judgment or order applicable to the
Company or any of the Subsidiaries;
(xiii) to the best of such counsel's knowledge, neither
the Company nor any of the Subsidiaries is in breach of or in
default under (nor has any event occurred which with notice,
lapse of time or both would constitute a breach of or default
under) any license, indenture, lease, mortgage, deed of trust,
bank loan or credit agreement or any other agreement or
instrument to which the Company or any of the Subsidiaries is
a party or by which the Company or any of the Subsidiaries or
their properties are bound or affected or under any law,
regulation or rule or any decree, judgment or order applicable
to the Company or any of the Subsidiaries, except for such
matters as could not, individually or in the aggregate, have a
material adverse effect on the properties, assets, operations,
business, business prospects or condition (financial or other)
of the Company and the Subsidiaries taken as a whole;
(xiv) to the best of such counsel's knowledge, after
due inquiry, neither the Company nor any of the Subsidiaries
has violated any Environmental Laws, nor any federal or state
law relating to discrimination in the hiring, promotion or pay
of employees nor any applicable federal or state wages and
hours laws, nor any provisions of the Employee Retirement
Income Security Act or the rules and regulations promulgated
thereunder, which in each case might result in any material
adverse effect on the properties, assets, operations,
business, business prospects or condition (financial or other)
of the Company and the Subsidiaries taken as a whole;
(xv) the Company and each of the Subsidiaries has
such permits, licenses, franchises and authorizations of
governmental or regulatory
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18
authorities ("permits"), including without limitation under
any applicable Environmental Laws, as are necessary to own,
lease and operate its respective properties and to conduct its
business in the manner described in the Prospectus; to the
best of such counsel's knowledge, after due inquiry, the
Company and each of the Subsidiaries has fulfilled and
performed all of its material obligations with respect to such
permits and no event has occurred which allows, or after
notice or lapse of time would allow, revocation or termination
thereof or results in any other material impairment of the
rights of the holder of any such permit, subject in each case
to such qualification as may be set forth in the Prospectus;
and, except as described in the Prospectus, such permits
contain no restrictions that are materially burdensome to the
Company or any of the Subsidiaries;
(xvi) all contracts or documents of a character
required to be described in the Registration Statement or the
Prospectus or to be filed as an exhibit to the Registration
Statement have been so described or filed;
(xvii) except as described in the Registration
Statement and the Prospectus, there are no actions, suits or
proceedings of which such counsel has knowledge pending or
threatened against the Company or any of the Subsidiaries, or
any of their respective properties, at law or in equity, or
before or by any federal, state, local or foreign governmental
or regulatory commission, board, body, authority or agency
that individually or in the aggregate could result in a
judgment, decree or order having a material adverse effect on
the properties, assets, operations, business, business
prospects or condition (financial or other) of the Company and
the Subsidiaries taken as a whole;
(xviii) the documents incorporated by reference in the
Registration Statement and Prospectus, when they were filed
(or, if an amendment with respect to any such document was
filed, when such amendment was filed), complied as to form in
all material respects with the Exchange Act (except as to the
financial statements and schedules and other financial and
statistical data contained or incorporated by reference
therein, as to which such counsel need express no opinion);
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(xix) to the best of such counsel's knowledge, no
person has the right, contractual or otherwise, to cause the
Company to issue to it, or register pursuant to the Act, any
securities of the Company in consequence of the issue and sale
of the Shares to the Underwriters hereunder;
(xx) the statements in the Registration Statement and
the Prospectus under the captions "Business -Regulation",
"Description of Capital Stock" and "Shares Eligible For Future
Sale", insofar as they are descriptions of laws, regulations
and rules, of legal and governmental proceedings or of
contracts, agreements, leases and other legal documents, or
refer to statements of law or legal conclusions, have been
reviewed by such counsel and are accurate in all material
respects;
(xxi) neither the Company nor any of the Subsidiaries
is an "investment company" or a person "controlled" by an
"investment company" within the meaning of the Investment
Company Act of 1940, as amended; and
(xxii) nothing has come to the attention of such
counsel that causes them 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 time of purchase 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 included in the Registration
Statement or Prospectus).
(b) You shall have received from Ernst & Young LLP letters
dated, respectively, the date of this Agreement and the time of
purchase and additional time of purchase, as the case may be, and
addressed to the Underwriters (with reproduced copies for each of the
Underwriters) in form and substance satisfactory to you.
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20
(c) You shall have received at the time of purchase and at the
additional time of purchase, as the case may be, opinions from Xxxxxx,
Xxxx & Xxxxxxxx LLP in form and substance satisfactory to you.
(d) No amendment or supplement to the Registration Statement
or the Prospectus, including documents deemed to be incorporated by
reference therein, shall be filed prior to the time the Registration
Statement becomes effective to which you shall have objected in
writing.
(e) The Registration Statement shall become effective at or
before 5:00 P.M., New York City time, on the date of this Agreement
and, if Rule 430A under the Act is used, the Prospectus shall have been
filed with the Commission pursuant to Rule 424(b) under the Act at or
before 5:00 P.M., New York City time, on the second full business day
after the date of this Agreement; provided, however, that the Company
and you and any group of Underwriters, including you, who have agreed
hereunder to purchase in the aggregate at least 50% of the Firm Shares
from time to time may agree in writing or by telephone, confirmed in
writing, on a later date.
(f) Prior to the time of purchase or the additional time of
purchase, as the case may be: (i) no stop order with respect to the
effectiveness of the Registration Statement shall have been issued
under the Act or proceedings initiated under Section 8(d) or 8(e) of
the Act; (ii) the Registration Statement and all amendments thereto, or
modifications thereof, if any, shall not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
(iii) the Prospectus and all amendments or supplements thereto, or
modifications thereof, if any, shall not contain an untrue statement of
a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(g) Between the time of execution of this Agreement and the
time of purchase or the additional time of purchase, as the case may
be, there has not been: (i) any material and adverse change, present or
prospective, in the properties, assets, operations, business, business
prospects or condition (financial or other) of the Company and the
Subsidiaries taken as a whole, other than as described in the
Registration Statement and the Prospectus; (ii) any transaction that is
material to the Company and the Subsidiaries taken as a whole
contemplated or entered into by the Company or any of the Subsidiaries,
other than as described in the Registration
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21
Statement and the Prospectus; or (iii) any obligation, contingent or
otherwise, directly or indirectly, incurred by the Company or any of
the Subsidiaries that is material to the Company and the Subsidiaries
taken as a whole, other than as described in the Registration Statement
and the Prospectus.
(h) The Company, at the time of purchase or additional time of
purchase, as the case may be, will deliver to you a certificate of two
of its executive officers to the effect that the representations and
warranties of the Company as set forth in this Agreement are true and
correct as of each such date and the conditions set forth in Section
6(f) and Section 6(g) have been met.
(i) You shall have received a signed letter, dated the date of
this Agreement, from each of the shareholders listed in Schedule B to
the effect that such persons shall not sell, contract to sell, grant
any option to sell, transfer or otherwise dispose of, directly or
indirectly, any shares of Common Stock or securities convertible into
or exchangeable for Common Stock or warrants or other rights to
purchase Common Stock for a period of [180] days from the date of the
Prospectus without the prior written consent of SBC Warburg Dillon Read
Inc.
(j) The Company shall have furnished to you such other
documents and certificates as to the accuracy and completeness of any
statement in the Registration Statement or the Prospectus as of the
time of purchase and the additional time of purchase, as the case may
be, as you reasonably may request.
(k) The Company shall have performed such of its obligations
under this Agreement as are to be performed by the terms hereof at or
before the time of purchase and at or before the additional time of
purchase, as the case may be.
(l) The Shares shall have been approved for quotation through
the Nasdaq National Market.
7. Effective Date of Agreement; Termination.
(a) This Agreement shall become effective (i) if Rule 430A
under the Act is not used, when you shall have received notification of
the effectiveness of the
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22
Registration Statement, or (ii) if Rule 430A under the Act is used,
when the parties hereto have executed and delivered this Agreement.
(b) The obligations of the several Underwriters hereunder
shall be subject to termination in the absolute discretion of you or
any group of Underwriters (which may include you) which has agreed to
purchase in the aggregate at least 50% of the Firm Shares if, at any
time prior to the time of purchase or, with respect to the purchase of
any Additional Shares, the additional time of purchase, as the case may
be, trading in securities on the New York Stock Exchange shall have
been suspended or minimum prices shall have been established on the New
York Stock Exchange or if a banking moratorium shall have been declared
either by the United States or New York State authorities, or if the
United States shall have declared war in accordance with its
constitutional processes or there shall have occurred any material
outbreak or escalation of hostilities or other national or
international calamity or crisis of such magnitude in its effect on, or
any material adverse change in, any financial market which, in each
case, in your judgment or in the judgment of such group of
Underwriters, makes it impracticable to market the Shares. If you or
any group of Underwriters elect to terminate this Agreement as provided
in this Section 7(b), the Company and each other Underwriter shall be
notified promptly by letter or telegram.
(c) If any Underwriter shall default in its obligation to take
up and pay for the Firm Shares to be purchased by it hereunder and if
the number of Firm Shares which all Underwriters so defaulting shall
have agreed but failed to take up and pay for does not exceed 10% of
the total number of Firm Shares, the non-defaulting Underwriters shall
take up and pay for (in addition to the aggregate principal amount of
Firm Shares they are obligated to purchase pursuant to Section 1) the
number of Firm Shares agreed to be purchased by all such defaulting
Underwriters as hereinafter provided. Such Shares shall be taken up and
paid for by such non-defaulting Underwriter or Underwriters in such
amount or amounts as you may designate with the consent of each
Underwriter so designated or, in the event no such designation is made,
such Shares shall be taken up and paid for by all non-defaulting
Underwriters pro rata in proportion to the aggregate number of Firm
Shares set opposite the names of such non-defaulting Underwriters in
Schedule A.
(d) If any Underwriter shall default in its obligation to take
up and pay for the Firm Shares to be
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23
purchased by it hereunder and if the number of Firm Shares which all
Underwriters so defaulting shall have agreed but failed to take up and
pay for exceeds 10% of the total number of Firm Shares, and
arrangements satisfactory to you and the Company are not made within 48
hours after such default, this Agreement will terminate without
liability on the part of any non-defaulting Underwriter.
(e) Without relieving any defaulting Underwriter from its
obligations hereunder, the Company agrees with the non-defaulting
Underwriters that it will not sell any Firm Shares hereunder unless all
of the Firm Shares are purchased by the Underwriters (or by substituted
underwriters selected by you with the approval of the Company or
selected by the Company with your approval pursuant to Section 7(d)).
If a new Underwriter or Underwriters are substituted for a defaulting
Underwriter or Underwriters in accordance with Section 7(d), the
Company or you shall have the right to postpone the time of purchase
for a period not exceeding five business days in order that any
necessary change in the Registration Statement and the Prospectus and
other documents may be effected. The term Underwriter as used in this
Agreement shall refer to and include any Underwriter substituted under
this Section 7 with like effect as if such substituted Underwriter had
originally been named in Schedule A.
(f) If the purchase of the Shares by the Underwriters, as
contemplated by this Agreement, is not consummated for any reason
permitted under this Agreement or if such purchase is not consummated
because the Company shall be unable to comply with any of the terms of
this Agreement, the Company shall not be under any obligation or
liability under this Agreement (except to the extent provided in
Sections 4(l), 5 and 8), and the Underwriters shall be under no
obligation or liability to the Company under this Agreement (except to
the extent provided in Section 8).
8. Indemnity by the Company and the Underwriters.
(a) The Company agrees to indemnify, defend and hold harmless
each Underwriter, each person that controls any Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and
each Underwriter's agents, employees, officers and directors and the
agents, employees, officers and directors of any such controlling
person (collectively, the "Underwriter indemnified parties") from and
against any and all losses, claims, damages, judgments,
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24
liabilities and expenses (including the fees and expenses of counsel
and other expenses in connection with investigating, defending or
settling any such action or claim) which, jointly or severally, any
Underwriter indemnified party may incur as they are incurred (and
regardless of whether such Underwriter indemnified party is a party to
the litigation, if any) arising out of or based upon any untrue
statement or alleged untrue statement of a material fact contained in
the registration statement relating to the Shares or the Prospectus or
any Preliminary Prospectus, or arising out of or based upon 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, judgments,
liabilities or expenses arise out of, or are based upon, any such
untrue statement or omission or alleged untrue statement or omission
based upon and in conformity with information with respect to any
Underwriter furnished in writing by any Underwriter through you to the
Company expressly for use therein with reference to such Underwriter.
This indemnity agreement will be in addition to any liability the
Company otherwise may have.
(b) If any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted
against any Underwriter indemnified party, with respect to which
indemnity may be sought against the Company pursuant to this Section 8,
such Underwriter indemnified party shall promptly notify the Company in
writing, and the Company shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to the Underwriter
indemnified party and payment of all fees and expenses; provided that
the omission so to notify the Company shall not relieve it from any
liability that it may have to any Underwriter indemnified party. An
Underwriter indemnified party shall have the right to employ separate
counsel in any such action or proceeding and to assume the defense
thereof, but the fees and expenses of such counsel shall be at the
expense of such Underwriter indemnified party unless (i) the employment
of such counsel has been authorized in writing by the Company, (ii) the
Company has failed promptly to assume the defense and employ counsel
satisfactory to the Underwriter indemnified party or (iii) the named
parties to any such action or proceeding (including any impleaded
parties) include both the Underwriter indemnified party and the Company
and such Underwriter indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to it that are
different from
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25
or additional to those available to the Company (in which case the
Company shall not have the right to assume the defense of such action
on behalf of such Underwriter indemnified party), in any of which
events such fees and expenses shall be borne by the Company and
reimbursed as they are incurred. It is understood, however, that the
Company shall not, in connection with any one such 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 the fees and expenses of more than one separate firm of attorneys
(in addition to any local counsel) at any time for all such Underwriter
indemnified parties, which firm shall be designated in writing by SBC
Warburg Dillon Read Inc., and that all such fees and expenses shall be
reimbursed as they are incurred. The Company shall not be liable for
any settlement of any such action effected without the written consent
of the Company (which consent shall not be unreasonably withheld or
delayed), but if settled with the written consent of the Company, or if
there is a final judgment with respect thereto, the Company agrees to
indemnify and hold harmless each Underwriter indemnified party from and
against any loss or liability by reason of such settlement or judgment.
(c) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, its officers who sign the
Registration Statement, and any person that controls the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act
(collectively, the "Company indemnified parties") to the same extent as
the foregoing indemnity from the Company to the Underwriter indemnified
parties, but only with respect to information concerning such
Underwriter furnished in writing by or on behalf of such Underwriter
through you to the Company expressly for use with respect to such
Underwriter in the Registration Statement, any Preliminary Prospectus
or the Prospectus. In case any action shall be brought against any
Company indemnified party based on the Registration Statement, any
Preliminary Prospectus or the Prospectus and in respect of which
indemnity may be sought against any Underwriter pursuant to this
Section 8(c), such Underwriter shall have the rights and duties given
to the Company by Section 8(b) (except that if the Company shall have
assumed the defense thereof such Underwriter shall not be required to
do so, but may employ separate counsel therein and participate in the
defense thereof, provided that the fees and expenses of such separate
counsel shall be at the expense of such Underwriter), and the Company
indemnified parties shall have the rights and duties
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26
given to the Underwriter indemnified parties by Section 8(b).
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless any Underwriter
indemnified party or any Company indemnified party, then the party
required to indemnify such indemnified party under this Section 8, 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, judgments, liabilities and expenses (i) in
such proportion as is appropriate to reflect the relative benefits
received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Shares, or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of
the Company on the one hand and the Underwriters on the other hand in
connection with the statements or omissions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative benefits received by
the Company on the one hand and the Underwriters on the other hand
shall be deemed to be in the same proportion as the total proceeds from
the offering (net of underwriting discounts and commissions but before
deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriters, in
each case as set forth in the table on the cover page of the
Prospectus. The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to,
among other things, whether the untrue statement 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
by the Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the
losses, claims, damages, judgments, liabilities and expenses referred
to above shall be deemed to include any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or
defending any claim or action.
The Company and the Underwriters agree that it would not be
just and equitable if contribution pursuant to this Section 8(d) were
determined by pro rata allocation or by any other method of allocation
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(even if the Underwriters were treated as one entity for such purpose)
that does not take account of the equitable considerations referred to
in this Section 8(d). Notwithstanding the provisions of this Section
8(d), no Underwriter indemnified party shall be required to contribute
any amount in excess of the amount by which the total price at which
the Shares underwritten by such Underwriter indemnified party and
distributed to the public were offered to the public exceeds the amount
of any damages which such Underwriter indemnified party otherwise has
been required to pay by reason of such untrue statement or alleged
untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters'
obligations to contribute pursuant to this Section 8 are several in
proportion to their respective underwriting commitments and are not
joint.
The statements under the caption "Underwriting" in the
Prospectus (to the extent such statements relate to an Underwriter)
constitute the only information furnished to the Company in writing by
such Underwriter expressly for use in the Registration Statement, any
Preliminary Prospectus or the Prospectus.
(e) The indemnity and contribution agreements contained in
this Section 8 and the representations, warranties and covenants of the
Company contained in this Agreement shall remain in full force and
effect, regardless of any investigation made by or on behalf of any
Underwriter indemnified party or by or on behalf of any Company
indemnified party, and shall survive any termination of this Agreement
or the issuance and delivery of the Shares. Subject to the provisions
of Section 8(b) and Section 8(c), the Company and each Underwriter
agree promptly to notify the other of the commencement of any
litigation or proceeding against it in connection with the issuance and
sale of the Shares or in connection with the Registration Statement or
the Prospectus.
9. Notices. Except as otherwise herein provided, all
statements, requests, notices and agreements shall be in writing or by telegram
and, if to the Underwriters, shall be sufficient in all respects if delivered or
sent to SBC Warburg Dillon Read Inc., 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Syndicate Department; and if to the Company, shall be
sufficient in all respects if delivered or sent to the Company at the offices of
the Company at 1341
26
00
Xxxx Xxxxxxxxxxx Xxxx, Xxxxxx, Xxxxx 00000-0000, Attention:
Xxxxxx X. Xxxxx.
10. Construction. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW. THE SECTION HEADINGS IN THIS AGREEMENT HAVE
BEEN INSERTED AS A MATTER OF CONVENIENCE OF REFERENCE AND ARE NOT A PART OF THIS
AGREEMENT.
11. Parties at Interest. The Agreement herein set forth has
been and is made solely for the benefit of the Underwriters, the Company, the
Underwriter indemnified parties and the Company indemnified parties, and their
respective successors, assigns, executors and administrators. No other person,
partnership, association or corporation (including a purchaser, as such
purchaser, from any of the Underwriters) shall acquire or have any right under
or by virtue of this Agreement.
12. Counterparts. This Agreement may be signed by the parties
in counterparts which together shall constitute one and the same agreement among
the parties.
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If the foregoing correctly sets forth the understanding among
the Company and the Underwriters, please so indicate in the space provided below
for such purpose, whereupon this letter and your acceptance shall constitute a
binding agreement among the Company and the Underwriters, severally.
Very truly yours,
TEXAS INDUSTRIES, INC.
By:
------------------------------
Name:
Title:
Accepted and agreed to as of
the date first above written,
on behalf of themselves,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Xxxxxx Xxxxxxx & Co. Incorporated
and the other several
Underwriters named in
Schedule A
SBC WARBURG DILLON READ INC., as
Managing Underwriter
By:
--------------------------------
Name:
Title:
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SCHEDULE A
Number of
Underwriter Firm Shares
----------- -----------
Xxxxxx, Read & Co. Inc . . . . . . . . . . .
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated. . .
Xxxxxx Xxxxxxx & Co. Incorporated
-----------
Total ____________
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SCHEDULE B
SHAREHOLDERS WHO HAVE EXECUTED LOCK-UP AGREEMENTS
