EXHIBIT 1.1
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PACKAGED ICE, INC.
(A TEXAS CORPORATION)
_________ SHARES OF COMMON STOCK
U. S. PURCHASE AGREEMENT
Dated: o, 1998
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TABLE OF CONTENTS
PAGE
SECTION 1. Representations and Warranties...................................3
(a) Representations and Warranties by the Company....................3
(i) Compliance with Registration Requirements..................3
(ii) Independent Accountants....................................3
(iii) Financial Statements.......................................4
(iv) No Material Adverse Change in Business.....................4
(v) Good Standing of the Company...............................4
(vi) Good Standing of Subsidiaries..............................4
(vii) Capitalization.............................................5
(viii)Authorization of Agreement.................................5
(ix) Authorization and Description of Securities................5
(x) Absence of Defaults and Conflicts..........................5
(xi) Absence of Labor Dispute...................................6
(xii) Absence of Proceedings.....................................6
(xiii)Accuracy of Exhibits.......................................6
(xiv) Possession of Intellectual Property........................6
(xv) Absence of Further Requirements............................6
(xvi) Possession of Licenses and Permits.........................7
(xvii)Title to Property..........................................7
(xviii)Compliance with Cuba Act..................................7
(xix) Investment Company Act.....................................7
(xx) Environmental Laws.........................................7
(xxi) Registration Rights........................................8
(xxii)Tax Returns................................................8
(xxiii)Insurance.................................................8
(xxiv)ERISA......................................................8
(xxv) Related Party Transactions.................................8
(xxvi)Reserved Shares............................................8
(b) Officer's Certificates...........................................8
SECTION 2. Sale and Delivery to U.S. Underwriters; Closing..................8
(a) Initial Securities...............................................8
(b) Option Securities................................................9
(c) Payment..........................................................9
(d) Denominations; Registration......................................9
SECTION 3. Covenants of the Company........................................10
(a) Compliance with Securities Regulations and Commission Requests..10
(b) Filing of Amendments............................................10
(c) Delivery of Registration Statements.............................10
(d) Delivery of Prospectuses........................................10
(e) Continued Compliance with Securities Laws.......................10
(f) Blue Sky Qualifications.........................................11
(g) Rule 158........................................................11
(h) Use of Proceeds.................................................11
(i) Listing.........................................................11
(j) Restriction on Sale of Securities...............................11
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(k) Reporting Requirements..........................................12
(l) Compliance with NASD Rules......................................12
(m) Compliance with Rule 463........................................12
SECTION 4. Payment of Expenses.............................................12
(a) Expenses........................................................12
(b) Termination of Agreement........................................12
SECTION 5. Conditions of U.S. Underwriters' Obligations....................13
(a) Effectiveness of Registration Statement.........................13
(b) Opinion of Counsel for the Company..............................13
(c) Opinion of Counsel for U.S. Underwriters........................13
(d) Officers' Certificate...........................................13
(e) Accountant's Comfort Letter.....................................14
(f) Bringdown Comfort Letters.......................................14
(g) Approval of Listing.............................................14
(h) No Objection....................................................14
(i) Lockup Agreements...............................................14
(j) Purchase of Initial International Securities....................14
(k) Conditions to Purchase of U.S. Option Securities................14
(i) Officers' Certificate.....................................14
(ii) Opinion of Counsel for Company............................14
(iii) Opinion of Counsel for U.S. Underwriters..................14
(iv) Bringdown Comfort Letters.................................15
(l) Additional Documents............................................15
(m) Termination of Agreement........................................15
SECTION 6. Indemnification.................................................15
(a) Indemnification of U.S. Underwriters............................15
(b) Indemnification of Company, Directors and Officers..............16
(c) Actions against Parties; Notification...........................16
(d) Settlement without Consent if Failure to Reimburse..............17
(e) Indemnification for Reserved Securities.........................17
SECTION 7. Contribution....................................................17
SECTION 8. Representations, Warranties and Agreements to Survive Delivery..18
SECTION 9. Termination of Agreement........................................18
(a) Termination; General............................................18
(b) Liabilities.....................................................19
SECTION 10. Default by One or More of the U.S. Underwriters................19
SECTION 11. Notices........................................................19
SECTION 12. Parties........................................................19
SECTION 13. GOVERNING LAW AND TIME.........................................20
SECTION 14. Effect of Headings.............................................20
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SCHEDULE A - List of Underwriters
SCHEDULE B - Pricing Information
SCHEDULE C - Persons Subject to Lockup
EXHIBIT A - Form of Opinion of Company Counsel EXHIBIT B - Form of Lockup
Agreement
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PACKAGED ICE, INC.
(a Texas corporation)
_________ Shares of Common Stock
(Par Value $.01 Per Share)
U.S. PURCHASE AGREEMENT
o, 1998
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇▇▇ & Company, Inc.
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
▇▇▇▇▇▇▇▇ Inc.
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Packaged Ice, Inc., a Texas Corporation (the "Company"), confirms its
agreement with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇") and each of the other U.S. Underwriters named in
Schedule A hereto (collectively, the "U.S. Underwriters", which term shall also
include any underwriter substituted as hereinafter provided in Section 10
hereof), with respect to the issue and sale by the Company and the purchase by
the U.S. Underwriters, acting severally and not jointly, of the respective
numbers of shares of Common Stock, par value $.01 per share, of the Company
("Common Stock") set forth in said Schedule A, and with respect to the grant by
the Company to the U.S. Underwriters, acting severally and not jointly, of the
option described in Section 2(b) hereof to purchase all or any part of _______
additional shares of Common Stock to cover over-allotments, if any. The
aforesaid _________ shares of Common Stock (the "Initial U.S. Securities") to be
purchased by the U.S. Underwriters and all or any part of the _______ shares of
Common Stock subject to the option described in Section 2(b) hereof (the "U.S.
Option Securities") are hereinafter called, collectively, the "U.S. Securities".
It is understood that the Company is concurrently entering into an
agreement dated the date hereof (the "International Purchase Agreement")
providing for the offering by the Company of an aggregate of _________ shares of
Common Stock (the "Initial International Securities") through arrangements with
▇▇▇▇▇▇▇ ▇▇▇▇▇ International, ▇▇▇▇▇▇▇▇▇ & Company, Inc., Bear, ▇▇▇▇▇▇▇
International Limited, NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC, and ▇▇▇▇▇▇▇▇ Inc.
(the "International Managers") and the grant by the Company to the International
Managers, acting severally and not jointly, of an option to purchase all or any
part of the International Managers' pro rata portion of up to _______ additional
shares of Common Stock solely to cover over-allotments, if any (the
"International Option Securities" and, together with the U.S. Option Securities,
the "Option Securities"). The Initial International Securities and the
International Option Securities are hereinafter called the "International
Securities". It is understood that the Company is not obligated to sell and
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the U.S. Underwriters are not obligated to purchase, any Initial U.S. Securities
unless all of the Initial International Securities are contemporaneously
purchased by the International Managers.
The U.S. Underwriters and the International Managers are hereinafter
collectively called the "Underwriters", the Initial U.S. Securities and the
Initial International Securities are hereinafter collectively called the
"Initial Securities", and the U.S. Securities, and the International Securities
are hereinafter collectively called the "Securities".
The Underwriters will concurrently enter into an Intersyndicate Agreement
of even date herewith (the "Intersyndicate Agreement") providing for the
coordination of certain transactions among the Underwriters under the direction
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated (in
such capacity, the "Global Coordinator").
The Company understands that the U.S. Underwriters propose to make a
public offering of the U.S. Securities as soon as they deem advisable after this
Agreement has been executed and delivered.
The Company and the U.S. Underwriters agree that up to 150,000 shares of
the Initial U.S. Securities to be purchased by the U.S. Underwriters (the
"Reserved Securities") shall be reserved for sale by the Underwriters to certain
eligible employees and persons having business relationships with the Company,
as part of the distribution of the Securities by the Underwriters, subject to
the terms of this Agreement, the applicable rules, regulations and
interpretations of the National Association of Securities Dealers, Inc. and all
other applicable laws, rules and regulations. To the extent that such Reserved
Securities are not orally confirmed for purchase by such eligible employees and
persons having business relationships with the Company by the end of the first
business day after the date of this Agreement, such Reserved Securities may be
offered to the public as part of the public offering contemplated hereby.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-1 (No. 333-60627) covering the
registration of the Securities under the Securities Act of 1933, as amended (the
"1933 Act"), including the related preliminary prospectus or prospectuses.
Promptly after execution and delivery of this Agreement, the Company will either
(i) prepare and file a prospectus in accordance with the provisions of Rule 430A
("Rule 430A") of the rules and regulations of the Commission under the 1933 Act
(the "1933 Act Regulations") and paragraph (b) of Rule 424 ("Rule 424(b)") of
the 1933 Act Regulations or (ii) if the Company has elected to rely upon Rule
434 ("Rule 434") of the 1933 Act Regulations, prepare and file a term sheet (a
"Term Sheet") in accordance with the provisions of Rule 434 and Rule 424(b). Two
forms of prospectus are to be used in connection with the offering and sale of
the Securities: one relating to the U.S. Securities (the "Form of U.S.
Prospectus") and one relating to the International Securities (the "Form of
International Prospectus"). The Form of International Prospectus is identical to
the Form of U.S. Prospectus, except for the front cover and back cover pages and
the information under the caption "Underwriting." The information included in
any such prospectus or in any such Term Sheet, as the case may be, that was
omitted from such registration statement at the time it became effective but
that is deemed to be part of such registration statement at the time it became
effective (a) pursuant to paragraph (b) of Rule 430A is referred to as "Rule
430A Information" or (b) pursuant to paragraph (d) of Rule 434 is referred to as
"Rule 434 Information." Each Form of U.S. Prospectus and Form of International
Prospectus used by the Underwriters in connection with offering the Securities
before such registration statement became effective, and any prospectus that
omitted, as applicable, the Rule 430A Information or the Rule 434 Information,
that was used after such effectiveness and prior to the execution and delivery
of this Agreement, is herein called a "preliminary prospectus." Such
registration statement, including the exhibits thereto and schedules thereto at
the time it became effective and including the Rule 430A Information and the
Rule 434 Information, as applicable, is herein called the "Registration
Statement." Any registration statement filed pursuant to Rule 462(b) of the 1933
Act Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration
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Statement. The final Form of U.S. Prospectus and the final Form of International
Prospectus in the forms used to confirm sales of the Securities are herein
called the "U.S. Prospectus" and the "International Prospectus," respectively,
and collectively, the "Prospectuses." For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the U.S.
Prospectus, the International Prospectus or any Term Sheet or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("▇▇▇▇▇").
SECTION 1. REPRESENTATIONS AND WARRANTIES.
(a) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company represents
and warrants to each U.S. Underwriter as of the date hereof, as of the Closing
Time referred to in Section 2(c) hereof, and as of each Date of Delivery (if
any) referred to in Section 2(b), hereof and agrees with each U.S. Underwriter,
as follows:
(i) COMPLIANCE WITH REGISTRATION REQUIREMENTS. Each of the
Registration Statement and any Rule 462(b) Registration Statement has
become effective under the 1933 Act and no stop order suspending the
effectiveness of the Registration Statement or any Rule 462(b)
Registration Statement has been issued under the 1933 Act and no
proceedings for that purpose have been instituted or are pending or, to
the knowledge of the Company, are contemplated by the Commission, and any
request on the part of the Commission for additional information has been
complied with.
At the respective times the Registration Statement, any Rule 462(b)
Registration Statement and any post-effective amendments thereto became
effective and at the Closing Time (and, if any U.S. Option Securities are
purchased, at the Date of Delivery), the Registration Statement, the Rule
462(b) Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of
the 1933 Act and the 1933 Act Regulations and 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. Neither of the Prospectuses nor any amendments or
supplements thereto, at the time the Prospectuses or any amendments or
supplements thereto were issued and at the Closing Time (and, if any U.S.
Option Securities are purchased, at the Date of Delivery), included or
will include an untrue statement of a material fact or omitted or will
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. If Rule 434 is used, the Company will comply with the
requirements of Rule 434 and the Prospectuses shall not be "materially
different", as such term is used in Rule 434, from the prospectuses
included in the Registration Statement at the time it became effective.
The representations and warranties in this subsection shall not apply to
statements in or omissions from the Registration Statement or the U.S.
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by any U.S. Underwriter expressly for
use in the Registration Statement or the U.S.
Prospectus.
Each preliminary prospectus and the prospectuses 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 1933 Act, complied when
so filed in all material respects with the 1933 Act Regulations and each
preliminary prospectus and the Prospectuses delivered to the Underwriters
for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to ▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(ii) INDEPENDENT ACCOUNTANTS. The accountants who certified the
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act
and the 1933 Act Regulations.
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(iii) FINANCIAL STATEMENTS. The financial statements included in the
Registration Statement and the Prospectuses, together with the related
schedules and notes, present fairly the financial position of the Company,
Reddy Ice Corporation ("Reddy"), Cassco Ice & Cold Storage, Inc.
("Cassco"), Southwestern Ice, Inc. ("Southwestern"), and their respective
consolidated subsidiaries, and the combined financial position of Mission
Party Ice, Inc. and Southwest Texas Packaged Ice, Inc. ("Mission/SW") at
the dates indicated, and the statements of operations, stockholders'
equity and cash flows of the Company, Reddy, Cassco, Southwestern,
Mission/SW and their consolidated subsidiaries for the periods specified;
said financial statements have been prepared in conformity with generally
accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved. The supporting schedules included in the
Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data and
the summary financial information included in the Prospectuses present
fairly the information shown therein and have been compiled on a basis
consistent with that of the audited financial statements included in the
Registration Statement. The pro forma financial statements and the related
notes thereto included in the Registration Statement and the Prospectuses
present fairly the information shown therein, have been prepared in
accordance with the Commission's rules and guidelines with respect to pro
forma financial statements and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect
to the transactions and circumstances referred to therein.
(iv) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the respective
dates as of which information is given in the Registration Statement and
the Prospectuses, except as otherwise stated therein, (A) there has been
no material adverse change in the condition, financial or otherwise, or in
the earnings, business affairs or business prospects, properties or assets
of the Company and its Subsidiaries (as defined below) considered as one
enterprise, whether or not arising in the ordinary course of business (a
"Material Adverse Effect"), (B) there have been no transactions entered
into by the Company or its Subsidiaries, other than those in the ordinary
course of business, which are material with respect to the Company and its
Subsidiaries considered as one enterprise, and (C) there has been no
dividend or distribution of any kind declared, paid or made by the Company
on any class of its capital stock or by Reddy or Cassco on any class of
its capital stock.
(v) GOOD STANDING OF THE COMPANY. The Company has been duly
organized and is validly existing as a corporation in good standing under
the laws of the State of Texas and has corporate power and authority to
own, lease and operate its properties and to conduct its business as
described in the Prospectuses and to enter into and perform its
obligations under this Agreement. The Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of business,
except where the failure so to qualify or to be in good standing would not
result in a Material Adverse Effect.
(vi) GOOD STANDING OF SUBSIDIARIES. Each direct or indirect
subsidiary of the Company (each a "Subsidiary" and, collectively, the
"Subsidiaries") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate power and authority to own, lease and operate
its properties and to conduct its business as described in the
Prospectuses and is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing
of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a Material Adverse
Effect. Except as otherwise disclosed in the Registration Statement, all
of the issued and outstanding capital stock of each Subsidiary has been
duly authorized and validly issued, is fully paid and non-assessable, and
is owned by the Company, directly or through Subsidiaries, free and clear
of any security interest, mortgage, pledge,
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lien, encumbrance, claim or equity. None of the outstanding shares of
capital stock of any Subsidiary was issued in violation of the preemptive
or similar rights of any security holder of such Subsidiary. Exhibit 21 to
the Registration Statement sets forth a complete list of the Subsidiaries,
except to the extent permitted by the rules and regulations of the
Commission.
(vii) CAPITALIZATION. The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectuses in the column
entitled "Actual" under the caption "Capitalization" (except for
subsequent issuances, if any, pursuant to this Agreement, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectuses or pursuant to the exercise of convertible securities,
warrants or options referred to in the Prospectuses). The shares of issued
and outstanding capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable; none of the
outstanding shares of capital stock of the Company was issued in violation
of the preemptive or other similar rights of any security holder of the
Company.
(viii)AUTHORIZATION OF AGREEMENT. This Agreement and the
International Purchase Agreement have been duly authorized, executed and
delivered by the Company.
(ix) AUTHORIZATION AND DESCRIPTION OF SECURITIES. The Securities to
be purchased by the U.S. Underwriters and the International Managers from
the Company have been duly authorized for issuance and sale to the U.S.
Underwriters pursuant to this Agreement and the International Managers
pursuant to the International Purchase Agreement, respectively, and, when
issued and delivered by the Company pursuant to this Agreement and the
International Purchase Agreement, respectively, against payment of the
consideration set forth herein and the International Purchase Agreement,
respectively, will be validly issued, fully paid and non-assessable. The
Common Stock conforms to all statements relating thereto contained in the
Prospectuses and such description conforms to the rights set forth in the
instruments defining the same. No holder of the Securities will be subject
to personal liability by reason of being such a holder. The issuance of
the Securities is not subject to the preemptive or other similar rights of
any security holder of the Company.
(x) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company nor any
of the Subsidiaries is in violation of its charter or by-laws or in
default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of the Subsidiaries is a party or
by which it or any of them may be bound, or to which any of the property
or assets of the Company or any Subsidiary is subject (collectively,
"Agreements and Instruments") except for such defaults that would not
result in a Material Adverse Effect. The execution, delivery and
performance of this Agreement and the International Purchase Agreement and
the consummation of the transactions contemplated in this Agreement, the
International Purchase Agreement and in the Registration Statement
(including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Prospectuses
under the caption "Use of Proceeds") and compliance by the Company with
its obligations under this Agreement and the International Purchase
Agreement have been duly authorized by all necessary corporate action and
do not and will not, whether with or without the giving of notice or
passage of time or both, conflict with or constitute a breach of, or
default or Repayment Event (as defined below) under, or result in the
creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any Subsidiary pursuant to, the
Agreements and Instruments (except for such conflicts, breaches or
defaults or liens, charges or encumbrances that would not result in a
Material Adverse Effect), nor will such action result in any violation of
the provisions of the charter or by-laws of the Company or any Subsidiary
or any applicable law, statute, rule, regulation, judgment, order, writ or
decree of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any Subsidiary or any of
their assets, properties or operations. As
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used herein, a "Repayment Event" means any event or condition which gives
the holder of any note, debenture or other evidence of indebtedness (or
any person acting on such holder's behalf) the right to require the
repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any Subsidiary.
(xi) ABSENCE OF LABOR DISPUTE. No labor dispute with the employees
of the Company or any Subsidiary exists or, to the knowledge of the
Company, is imminent, and neither the Company nor any Subsidiary is aware
of any existing or imminent labor disturbance by the employees of any of
its principal suppliers, manufacturers, customers or contractors, which,
in either case, may reasonably be expected to result in a Material Adverse
Effect.
(xii) ABSENCE OF PROCEEDINGS. There is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against or affecting the Company or any
Subsidiary, which is required to be disclosed in the Registration
Statement (other than as disclosed therein), or which might reasonably be
expected to result in a Material Adverse Effect, or which might reasonably
be expected to materially and adversely affect the consummation of the
transactions contemplated in this Agreement or the International Purchase
Agreement or the performance by the Company of its obligations hereunder
or thereunder; the aggregate of all pending legal or governmental
proceedings to which the Company or any Subsidiary is a party or of which
any of their respective property or assets is the subject which are not
described in the Registration Statement, including ordinary routine
litigation incidental to the business, could not reasonably be expected to
result in a Material Adverse Effect.
(xiii)ACCURACY OF EXHIBITS. There are no contracts or documents
which are required to be described in the Registration Statement or the
Prospectuses or to be filed as exhibits thereto which have not been so
described and filed as required.
(xiv) POSSESSION OF INTELLECTUAL PROPERTY. The Company and the
Subsidiaries own or possess, or can acquire on reasonable terms, adequate
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the business
now operated by them, and neither the Company nor any of the Subsidiaries
has received any notice or is otherwise aware of any infringement of or
conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any
Intellectual Property invalid or inadequate to protect the interest of the
Company or any of the Subsidiaries therein, and which infringement or
conflict (if the subject of any unfavorable decision, ruling or finding)
or invalidity or inadequacy, singly or in the aggregate, would result in a
Material Adverse Effect.
(xv) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering, issuance or sale
of the Securities under this Agreement and the International Purchase
Agreement or the consummation of the transactions contemplated by this
Agreement or the International Purchase Agreement, except such as have
been already obtained or as may be required under the 1933 Act or the 1933
Act Regulations and foreign or state securities or blue sky laws.
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(xvi) POSSESSION OF LICENSES AND PERMITS. The Company and the
Subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them except where the
failure to possess such Governmental Licenses would not result in a
Material Adverse Effect. The Company and the Subsidiaries are in
compliance with the terms and conditions of all such Governmental
Licenses, except where the failure so to comply would not, singly or in
the aggregate, have a Material Adverse Effect. All of the Governmental
Licenses are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect. Neither the Company nor any Subsidiary has
received any notice of proceedings relating to the revocation or
modification of any such Governmental Licenses which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Effect.
(xvii)TITLE TO PROPERTY. The Company and the Subsidiaries have good
and marketable title to all real property owned by them and good title to
all other properties owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (a) are described in the
Prospectuses or (b) do not, singly or in the aggregate, materially affect
the value of such property and do not materially interfere with the use
made and proposed to be made of such property by the Company or any of the
Subsidiaries. All of the leases and subleases material to the business of
the Company or any of the Subsidiaries, considered as one enterprise, and
under which the Company or any of the Subsidiaries holds properties
described in the Prospectuses, are in full force and effect, and neither
the Company nor any of the Subsidiaries has any notice of any material
claim of any sort that has been asserted by anyone adverse to the rights
of the Company or any Subsidiary under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company or
such Subsidiary to the continued possession of the leased or subleased
premises under any such lease or sublease.
(xviii)COMPLIANCE WITH CUBA ACT. The Company has complied with, and
is and will be in compliance with, the provisions of that certain Florida
act relating to disclosure of doing business with Cuba, codified as
Section 517.075 of the Florida statutes, and the rules and regulations
thereunder (collectively, the "Cuba Act") or is exempt therefrom.
(xix) INVESTMENT COMPANY ACT. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated, the
application of the net proceeds therefrom as described in the Prospectuses
will not be, an "investment company" or an entity "controlled" by an
"investment company" as such terms are defined in the Investment Company
Act of 1940, as amended (the "1940 Act").
(xx) ENVIRONMENTAL LAWS. Except as described in the Registration
Statement and except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) neither the Company nor any Subsidiary is in
violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance, code, policy or rule of common law or any judicial
or administrative interpretation thereof, including any judicial or
administrative order, consent, decree or judgment, relating to pollution
or protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous Materials") or
to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and the Subsidiaries have all
permits, authorizations and approvals required under any applicable
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Environmental Laws and are each in compliance with their requirements, (C)
there are no pending or, to the Company's knowledge, threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, written notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of the Subsidiaries and (D) there are no events or
circumstances that might reasonably be expected to form the basis of an
order for clean-up or remediation, or an action, suit or proceeding by any
private party or governmental body or agency, against or affecting the
Company or any of the Subsidiaries relating to Hazardous Materials or any
Environmental Laws.
(xxi) REGISTRATION RIGHTS. There are no persons with registration
rights or other similar rights to have any securities registered pursuant
to the Registration Statement by the Company under the 1933 Act which have
not been appropriately waived.
(xxii)TAX RETURNS. The Company and each Subsidiary have filed all
Federal, state, local and foreign income tax returns which have been
required to be filed and have paid all taxes indicated by said returns and
all assessments received by it or any of them to the extent that such
taxes have become due and are not being contested in good faith, except
for the filing of those returns, and the paying of those taxes, the
failure to file or pay, respectively, individually or in the aggregate,
would not have a Material Adverse Effect. All tax liabilities have been
adequately provided for in the financial statements of the Company or the
applicable Subsidiary.
(xxiii)INSURANCE. The Company and the Subsidiaries carry, or are
covered by, insurance in such amounts and covering such risks as is
reasonably adequate for the conduct of their respective businesses and the
value of their respective properties and as is customary for companies in
the Company's industry.
(xxiv)ERISA. The Company and the Subsidiaries are in compliance in
all material respects with all presently applicable provisions of the
Employee Retirement Income Security Act of 1974, as amended, including the
regulations and published interpretations thereunder ("ERISA").
(xxv) RELATED PARTY TRANSACTIONS. No relationship, direct or
indirect, exists between or among the Company or any Subsidiary, on the
one hand, and the directors, officers, shareholders, customers or
suppliers of the Company or any Subsidiary on the other hand, which is
required to be described in the Prospectuses which is not so described.
(xxvi)RESERVED SHARES. Each of the persons identified by the Company
to the Underwriters to receive Reserved Shares is a citizen of the United
States and currently is a resident of one of the United States.
(b) OFFICER'S CERTIFICATES. Any certificate signed by any officer of the
Company or any of its subsidiaries delivered to the Global Coordinator, the U.S.
Underwriters or to counsel for the U.S. Underwriters shall be deemed a
representation and warranty by the Company to each U.S. Underwriter as to the
matters covered thereby.
SECTION 2. SALE AND DELIVERY TO U.S. UNDERWRITERS; CLOSING.
(a) INITIAL SECURITIES. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each U.S. Underwriter, severally and not jointly, and
each U.S. Underwriter, severally and not jointly, agrees to purchase from the
Company, at the price per share set forth in Schedule B, the number of Initial
U.S. Securities set forth in
-8-
Schedule A opposite the name of such U.S. Underwriter, plus any additional
number of Initial U.S. Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof.
(b) OPTION SECURITIES. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Company hereby grants an option to the U.S. Underwriters,
severally and not jointly, to purchase up to an additional _______ shares of
Common Stock at the price per share set forth in Schedule B, less an amount per
share equal to any dividends or distributions declared by the Company and
payable on the Initial U.S. Securities but not payable on the U.S. Option
Securities. The option hereby granted will expire 30 days after the date hereof
and may be exercised in whole or in part from time to time only for the purpose
of covering over-allotments which may be made in connection with the offering
and distribution of the Initial U.S. Securities upon notice by the Global
Coordinator to the Company setting forth the number of U.S. Option Securities as
to which the several U.S. Underwriters are then exercising the option and the
time and date of payment and delivery for such U.S. Option Securities. Any such
time and date of delivery for the U.S. Option Securities (a "Date of Delivery")
shall be determined by the Global Coordinator, but shall not be later than seven
full business days after the exercise of said option, nor in any event prior to
the Closing Time, as hereinafter defined. If the option is exercised as to all
or any portion of the U.S. Option Securities, each of the U.S. Underwriters,
acting severally and not jointly, will purchase that proportion of the total
number of U.S. Option Securities then being purchased which the number of
Initial U.S. Securities set forth in Schedule A opposite the name of such U.S.
Underwriter bears to the total number of Initial U.S. Securities, subject in
each case to such adjustments as the Global Coordinator in its discretion shall
make to eliminate any sales or purchases of fractional shares.
(c) PAYMENT. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of ▇▇▇▇▇▇
& ▇▇▇▇▇▇ L.L.P., ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇, or at such other place as shall be
agreed upon by the Global Coordinator and the Company, at 9:00 A.M. (Eastern
time) on the third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time)
on any given day) business day after the date hereof (unless postponed in
accordance with the provisions of Section 10), or such other time not later than
ten business days after such date as shall be agreed upon by the Global
Coordinator and the Company (such time and date of payment and delivery being
herein called "Closing Time").
In addition, in the event that any or all of the U.S. Option Securities
are purchased by the U.S. Underwriters, payment of the purchase price for, and
delivery of certificates for, such U.S. Option Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by the
Global Coordinator and the Company, on each Date of Delivery as specified in the
notice from the Global Coordinator to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company, against delivery to
the U.S. Underwriters for their respective accounts of certificates for the U.S.
Securities to be purchased by them. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as
representative of the U.S. Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the Initial U.S. Securities or the U.S.
Option Securities, if any, to be purchased by any U.S. Underwriter whose funds
have not been received by the Closing Time or the relevant Date of Delivery, as
the case may be, but such payment shall not relieve such U.S. Underwriter from
its obligations hereunder.
(d) DENOMINATIONS; REGISTRATION. Certificates for the Initial U.S.
Securities and the U.S. Option Securities, if any, shall be in such
denominations and registered in such names as the U.S. Underwriters may request
in writing at least one full business day before the Closing Time or the
relevant Date of Delivery, as the case may be. The certificates for the Initial
U.S. Securities and the U.S. Option Securities, if any, will be made available
for examination and packaging by the U.S. Underwriters in The City of New York
not later than 10:00 A.M. (Eastern time) on the business day prior to the
Closing Time or the relevant Date of Delivery, as the case may be.
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SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with each U.S.
Underwriter as follows:
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the Global Coordinator immediately,
and confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectuses or any amended Prospectuses shall have been filed, (ii) of the
receipt of any comments from the Commission, (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or
supplement to the Prospectuses or for additional information, and (iv) of the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of any
preliminary prospectus, or of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, or of the initiation or
threatening of any proceedings for any of such purposes. The Company will
promptly effect the filings necessary pursuant to Rule 424(b) and will take such
steps as it deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b) FILING OF AMENDMENTS. The Company will give the Global Coordinator
notice of its intention to file or prepare any amendment to the Registration
Statement (including any filing under Rule 462(b)), any Term Sheet or any
amendment, supplement or revision to either the prospectus included in the
Registration Statement at the time it became effective or to the Prospectuses,
will furnish the Global Coordinator with copies of any such documents a
reasonable amount of time prior to such proposed filing or use, as the case may
be, and will not file or use any such document to which the Global Coordinator
or counsel for the U.S.
Underwriters shall object.
(c) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished or will
deliver to the U.S. Underwriters and counsel for the U.S. Underwriters, without
charge, signed copies of the Registration Statement as originally filed and of
each amendment thereto (including exhibits filed therewith or incorporated by
reference therein) and signed copies of all consents and certificates of
experts, and will also deliver to the U.S. Underwriters, without charge, a
conformed copy of the Registration Statement as originally filed and of each
amendment thereto (without exhibits) for each of the U.S. Underwriters. The
copies of the Registration Statement and each amendment thereto furnished to the
U.S. Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(d) DELIVERY OF PROSPECTUSES. The Company has delivered to each U.S.
Underwriter, without charge, as many copies of each preliminary prospectus as
such U.S. Underwriter reasonably requested, and the Company hereby consents to
the use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each U.S. Underwriter, without charge, during the period when the
U.S. Prospectus is required to be delivered under the 1933 Act or the Securities
Exchange Act of 1934 (the "1934 Act"), such number of copies of the U.S.
Prospectus (as amended or supplemented) as such U.S. Underwriter may reasonably
request. The U.S. Prospectus and any amendments or supplements thereto furnished
to the U.S. Underwriters will be identical to the electronically transmitted
copies thereof filed with the Commission pursuant to ▇▇▇▇▇, except to the extent
permitted by Regulation S-T.
(e) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will comply
with the 1933 Act and the 1933 Act Regulations so as to permit the completion of
the distribution of the Securities as contemplated in this Agreement, the
International Purchase Agreement and in the Prospectuses. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities, any
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event shall occur or condition shall exist as a result of which it is necessary,
in the opinion of counsel for the U.S. Underwriters or for the Company, to amend
the Registration Statement or amend or supplement any Prospectus in order that
the Prospectuses will not include any untrue statements of a material fact or
omit to state a material fact necessary in order to make the statements therein
not misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement any Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b), such amendment or supplement as may be
necessary to correct such statement or omission or to make the Registration
Statement or the Prospectuses comply with such requirements, and the Company
will furnish to the U.S. Underwriters such number of copies of such amendment or
supplement as the U.S. Underwriters may reasonably request.
(f) BLUE SKY QUALIFICATIONS. The Company will use its best efforts, in
cooperation with the U.S. Underwriters, to qualify the Securities for offering
and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as the Global Coordinator may designate and
to maintain such qualifications in effect for a period of not less than one year
from the later of the effective date of the Registration Statement and any Rule
462(b) Registration Statement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to qualify as a
foreign corporation or as a dealer in securities in any jurisdiction in which it
is not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. In each
jurisdiction in which the Securities have been so qualified, the Company will
file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect for a period of not less
than one year from the effective date of the Registration Statement and any Rule
462(b) Registration Statement.
(g) RULE 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its security
holders as soon as practicable an earnings statement for the purposes of, and to
provide the benefits contemplated by, the last paragraph of Section 11(a) of the
1933 Act.
(h) USE OF PROCEEDS. The Company will use the net proceeds received by it
from the sale of the Securities in the manner specified in the Prospectuses
under "Use of Proceeds."
(i) LISTING. The Company will use its best efforts to effect and maintain
the quotation of the Securities on the Nasdaq National Market and will file with
the Nasdaq National Market all documents and notices required by the Nasdaq
National Market of companies that have securities that are traded in the
over-the-counter market and quotations for which are reported by the Nasdaq
National Market.
(j) RESTRICTION ON SALE OF SECURITIES. During a period of 180 days from
the date of the Prospectuses, the Company will not, without the prior written
consent of the Global Coordinator, (i) directly or indirectly, 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 any share of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock or file any
registration statement under the 1933 Act with respect to any of the foregoing
or (ii) enter into any swap or any other agreement or any transaction that
transfers, in whole or in part, directly or indirectly, the economic consequence
of ownership of the Common Stock, or any securities convertible into or
exercisable or exchangeable for Common Stock, whether any such swap or
transaction described in clause (i) or (ii) above is to be settled by delivery
of Common Stock or such other securities, in cash or otherwise. The foregoing
sentence shall not apply to (A) the Securities to be sold hereunder or under the
International Purchase Agreement, (B) any shares of Common Stock issued or
options to purchase Common Stock granted pursuant to employee benefit plans of
the Company referred to in the Prospectuses or shares issuable upon the
conversion of preferred stock or the exercise of warrants or (C) shares of
Common Stock issued in connection
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with acquisitions by the Company of other businesses, provided that, (except
with respect to shares issued in transactions in which the issuance or resale of
such shares will not be registered under the ▇▇▇▇ ▇▇▇) the recipients of such
shares agree in writing for the benefit of the U.S. Underwriters not to take any
action described in clauses (i) or (ii) above with respect to such shares until
the expiration of 180 days from the date of the Prospectuses.
(k) REPORTING REQUIREMENTS. The Company, during the period when the
Prospectuses are required to be delivered under the 1933 Act or the 1934 Act,
will file all documents required to be filed with the Commission pursuant to the
1934 Act within the time periods required by the 1934 Act and the rules and
regulations of the Commission thereunder.
(l) COMPLIANCE WITH NASD RULES. The Company hereby agrees that it will
ensure that the Reserved Securities will be restricted as required by the
National Association of Securities Dealers, Inc. (the "NASD") or the NASD rules
from sale, transfer, assignment, pledge or hypothecation for a period of three
months following the date of this Agreement. The Underwriters will notify the
Company as to which persons will need to be so restricted. At the request of the
Underwriters, the Company will direct the transfer agent to place a stop
transfer restriction upon such securities for such period of time. Should the
Company release, or seek to release, from such restrictions any of the Reserved
Securities, the Company agrees to reimburse the Underwriters for any reasonable
expenses (including, without limitation, legal expenses) they incur in
connection with such release.
(m) COMPLIANCE WITH RULE 463. The Company will comply with Rule 463 of the
1933 Act Regulations with respect to reporting its use of the proceeds from its
sale of the Securities.
SECTION 4. PAYMENT OF EXPENSES.(a) EXPENSES. The Company will pay all
expenses incident to the performance of its obligations under this Agreement,
including (i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (iii) the preparation, issuance and
delivery of the certificates for the Securities to the Underwriters, including
any stock or other transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Securities to the Underwriters and the
transfer of the Securities between the U.S. Underwriters and the International
Managers, (iv) the fees and disbursements of the Company's counsel, accountants
and other advisors, (v) the qualification of the Securities under securities
laws in accordance with the provisions of Section 3(f) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Underwriters
in connection therewith and in connection with the preparation of the Blue Sky
Survey and any supplement thereto, (vi) the printing and delivery to the
Underwriters of copies of each preliminary prospectus, any Term Sheets and of
the Prospectuses and any amendments or supplements thereto, (vii) the
preparation, printing and delivery to the Underwriters of copies of the Blue Sky
Survey and any supplement thereto, (viii) the fees and expenses of any transfer
agent or registrar for the Securities, (ix) the filing fees incident to the
review by the NASD of the terms of the sale of the Securities, (x) the fees and
expenses incurred in connection with the inclusion of the Securities in the
Nasdaq National Market and (xi) all costs and expenses of the Underwriters,
including the fees and disbursements of counsel for the Underwriters, in
connection with matters related to the Reserved Securities which are designated
by the Company for sale to employees and others.
(b) TERMINATION OF AGREEMENT. If this Agreement is terminated by the U.S.
Underwriters in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the U.S. Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the U.S. Underwriters.
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SECTION 5. CONDITIONS OF U.S. UNDERWRITERS' OBLIGATIONS. The obligations
of the several U.S. Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company contained in Section 1 hereof or
in certificates of any officer of the Company delivered pursuant to the
provisions hereof, to the performance by the Company of its covenants and other
obligations hereunder, and to the following further conditions:
(a) EFFECTIVENESS OF REGISTRATION STATEMENT. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
the Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the U.S. Underwriters. A prospectus
containing the Rule 430A Information shall have been filed with the Commission
in accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule 434,
a Term Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b) OPINION OF COUNSEL FOR THE COMPANY. At Closing Time, the U.S.
Underwriters shall have received the favorable opinion, dated as of Closing
Time, of Akin, Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P., counsel for the Company, in
form and substance satisfactory to the U.S. Underwriters, together with signed
or reproduced copies of such letter for each of the other U.S. Underwriters to
the effect set forth in Exhibit A hereto and to such further effect as counsel
to the U.S. Underwriters may reasonably request. In giving such opinion such
counsel may rely, as to all matters governed by the laws of jurisdictions other
than the law of the States of Texas and New York, the federal law of the United
States and the General Corporation Law of the State of Delaware, upon the
opinions of counsel satisfactory to the U.S. Underwriters. Such counsel may also
state that, insofar as such opinion involves factual matters, they have relied,
to the extent they deem proper, upon certificates of officers of the Company and
its subsidiaries and certificates of public officials.
(c) OPINION OF COUNSEL FOR U.S. UNDERWRITERS. At Closing Time, the U.S.
Underwriters shall have received the favorable opinion, dated as of Closing
Time, of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the U.S. Underwriters, together
with signed or reproduced copies of such letter for each of the other U.S.
Underwriters with respect to the matters set forth in clauses (i), (iv), (v)
(solely as to preemptive or other similar rights arising by operation of law or
under the charter or by-laws of the Company), (vi) through (ix), inclusive, (xi)
(solely as to the information in the Prospectus under "Description of Capital
Stock--Common Stock") and the penultimate paragraph of Exhibit A hereto. In
giving such opinion such counsel may rely, as to all matters governed by the
laws of jurisdictions other than the law of the States of Texas and New York,
the federal law of the United States and the General Corporation Law of the
State of Delaware, upon the opinions of counsel satisfactory to the U.S.
Underwriters. Such counsel may also state that, insofar as such opinion involves
factual matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and its subsidiaries and certificates of
public officials.
(d) OFFICERS' CERTIFICATE. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectuses, any material adverse change in the condition,
financial or otherwise, or in the earnings, business affairs or business
prospects of the Company and the Subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the U.S.
Underwriters shall have received a certificate of the President or a Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, dated as of Closing Time, to the effect that (i) there has been
no such material adverse change, (ii) the representations and warranties in
Section 1(a) hereof are true and correct with the same force and effect as
though expressly made at and as of Closing Time, (iii) the Company has complied
with all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time, and (iv) no stop order suspending the
effectiveness of
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the Registration Statement has been issued and no proceedings for that purpose
have been instituted or to the Company's knowledge are pending or are
contemplated by the Commission.
(e) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of this
Agreement, the U.S. Underwriters shall have received from Deloitte & Touche LLP
and KPMG Peat Marwick LLP letters dated such date, in form and substance
satisfactory to the U.S. Underwriters, together with signed or reproduced copies
of such letters for each of the other U.S. Underwriters containing statements
and information of the type ordinarily included in accountants' "comfort
letters" to underwriters with respect to the financial statements and certain
financial information contained in the Registration Statement and the
Prospectuses.
(f) BRINGDOWN COMFORT LETTERS. At Closing Time, the U.S. Underwriters
shall have received from Deloitte & Touche LLP and KPMG Peat Marwick LLP
letters, dated as of Closing Time, to the effect that they reaffirm the
statements made in the letters furnished pursuant to subsection (e) of this
Section, except that the specified date referred to shall be a date not more
than three business days prior to Closing Time.
(g) APPROVAL OF LISTING. At Closing Time, the Securities shall have been
approved for inclusion in the Nasdaq National Market, subject only to official
notice of issuance.
(h) NO OBJECTION. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements contemplated hereby.
(i) LOCKUP AGREEMENTS. At the date of this Agreement, the U.S.
Underwriters shall have received an agreement substantially in the form of
Exhibit B hereto signed by the persons listed on Schedule C hereto.
(j) PURCHASE OF INITIAL INTERNATIONAL SECURITIES. Contemporaneously with
the purchase by the U.S. Underwriters of the Initial U.S. Securities under this
Agreement, the International Managers shall have purchased the Initial
International Securities under the International Purchase Agreement.
(k) CONDITIONS TO PURCHASE OF U.S. OPTION SECURITIES. In the event that
the U.S. Underwriters exercise their option provided in Section 2(b) hereof to
purchase all or any portion of the U.S. Option Securities, the representations
and warranties of the Company contained herein and the statements in any
certificates furnished by the Company or any subsidiary of the Company hereunder
shall be true and correct as of each Date of Delivery and, at the relevant Date
of Delivery, the U.S. Underwriters shall have received:
(i) OFFICERS' CERTIFICATE. A certificate, dated such Date of
Delivery, of the Chairman of the Board or the President of the Company and
of the chief financial or chief accounting officer of the Company
confirming that the certificate delivered at the Closing Time pursuant to
Section 5(d) hereof remains true and correct as of such Date of Delivery.
(ii) OPINION OF COUNSEL FOR COMPANY. The favorable opinion of Akin,
Gump, Strauss, ▇▇▇▇▇ & ▇▇▇▇, L.L.P., counsel for the Company, in form and
substance satisfactory to the U.S. Underwriters, dated such Date of
Delivery, relating to the U.S. Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the opinions required
by Section 5(b) hereof.
(iii) OPINION OF COUNSEL FOR U.S. UNDERWRITERS. The favorable
opinion of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the U.S. Underwriters,
dated such Date of Delivery, relating to the U.S. Option Securities to be
purchased on such Date of Delivery and otherwise to the same effect as the
opinion required by Section 5(c) hereof.
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(iv) BRINGDOWN COMFORT LETTERS. Letters from Deloitte & Touche LLP
and KPMG Peat Marwick LLP, in form and substance satisfactory to the U.S.
Underwriters and dated such Date of Delivery, substantially in the same
form and substance as the letters furnished to the U.S. Underwriters
pursuant to Section 5(f) hereof, except that the "specified date" in the
letter furnished pursuant to this paragraph shall be a date not more than
five days prior to such Date of Delivery.
(l) ADDITIONAL DOCUMENTS. At Closing Time and at each Date of Delivery,
counsel for the U.S. Underwriters shall have been furnished with such documents
and opinions as they may require for the purpose of enabling them to pass upon
the issuance and sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Securities
as herein contemplated shall be satisfactory in form and substance to the U.S.
Underwriters and counsel for the U.S. Underwriters.
(m) TERMINATION OF AGREEMENT. IF ANY CONDITION SPECIFIED IN THIS SECTION
SHALL NOT HAVE BEEN FULFILLED WHEN AND AS REQUIRED TO BE FULFILLED, THIS
AGREEMENT, OR, IN THE CASE OF ANY CONDITION TO THE PURCHASE OF U.S. OPTION
SECURITIES ON A DATE OF DELIVERY WHICH IS AFTER THE CLOSING TIME, THE
OBLIGATIONS OF THE SEVERAL U.S. UNDERWRITERS TO PURCHASE THE RELEVANT OPTION
SECURITIES, MAY BE TERMINATED BY THE U.S. UNDERWRITERS BY NOTICE TO THE COMPANY
AT ANY TIME AT OR PRIOR TO CLOSING TIME OR SUCH DATE OF DELIVERY, AS THE CASE
MAY BE, AND SUCH TERMINATION SHALL BE WITHOUT LIABILITY OF ANY PARTY TO ANY
OTHER PARTY EXCEPT AS PROVIDED IN SECTION 4 AND EXCEPT THAT ▇▇▇▇▇▇▇▇ ▇, ▇, ▇ ▇▇▇
▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ANY SUCH TERMINATION AND REMAIN IN FULL FORCE AND EFFECT.
SECTION 6. INDEMNIFICATION.
(A) INDEMNIFICATION OF U.S. UNDERWRITERS. THE COMPANY AGREES TO INDEMNIFY
AND HOLD HARMLESS EACH U.S. UNDERWRITER AND EACH PERSON, IF ANY, WHO CONTROLS
ANY U.S. UNDERWRITER WITHIN THE MEANING OF SECTION 15 OF THE 1933 ACT OR SECTION
20 OF THE 1934 ACT AS FOLLOWS:
(I) AGAINST ANY AND ALL LOSS, LIABILITY, CLAIM, DAMAGE AND EXPENSE
WHATSOEVER, AS INCURRED, ARISING OUT OF ANY UNTRUE STATEMENT OR ALLEGED
UNTRUE STATEMENT OF A MATERIAL FACT CONTAINED IN THE REGISTRATION
STATEMENT (OR ANY AMENDMENT THERETO), INCLUDING THE RULE 430A INFORMATION
AND THE RULE 434 INFORMATION, IF APPLICABLE, OR THE OMISSION OR ALLEGED
OMISSION THEREFROM OF A MATERIAL FACT REQUIRED TO BE STATED THEREIN OR
NECESSARY TO MAKE THE STATEMENTS THEREIN NOT MISLEADING OR ARISING OUT OF
ANY UNTRUE STATEMENT OR ALLEGED UNTRUE STATEMENT OF A MATERIAL FACT
INCLUDED IN ANY PRELIMINARY PROSPECTUS OR THE PROSPECTUSES (OR ANY
AMENDMENT OR SUPPLEMENT THERETO), OR THE OMISSION OR ALLEGED OMISSION
THEREFROM OF A MATERIAL FACT NECESSARY IN ORDER TO MAKE THE STATEMENTS
THEREIN, IN THE LIGHT OF THE CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT
MISLEADING;
(II) AGAINST ANY AND ALL LOSS, LIABILITY, CLAIM, DAMAGE AND EXPENSE
WHATSOEVER, AS INCURRED, TO THE EXTENT OF THE AGGREGATE AMOUNT PAID IN
SETTLEMENT OF ANY LITIGATION, OR ANY INVESTIGATION OR PROCEEDING BY ANY
GOVERNMENTAL AGENCY OR BODY, COMMENCED OR THREATENED, OR OF ANY CLAIM
WHATSOEVER BASED UPON ANY SUCH UNTRUE STATEMENT OR OMISSION, OR ANY SUCH
ALLEGED UNTRUE STATEMENT OR OMISSION; PROVIDED THAT (SUBJECT TO SECTION
6(D) BELOW) ANY SUCH SETTLEMENT IS EFFECTED WITH THE WRITTEN CONSENT OF
THE COMPANY; AND
(III) AGAINST ANY AND ALL EXPENSE WHATSOEVER, AS REASONABLY INCURRED
(INCLUDING (SUBJECT TO SECTION 6(C), BELOW) THE FEES AND DISBURSEMENTS OF
COUNSEL CHOSEN BY ▇▇▇▇▇▇▇ ▇▇▇▇▇), IN INVESTIGATING, PREPARING OR DEFENDING
AGAINST ANY LITIGATION, OR ANY INVESTIGATION OR PROCEEDING BY ANY
GOVERNMENTAL AGENCY OR BODY, COMMENCED OR THREATENED, OR ANY CLAIM
WHATSOEVER BASED UPON ANY SUCH UNTRUE STATEMENT OR OMISSION, OR ANY SUCH
ALLEGED UNTRUE STATEMENT OR OMISSION, TO THE EXTENT THAT ANY SUCH EXPENSE
IS NOT PAID UNDER (I) OR (II) ABOVE;
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PROVIDED, HOWEVER, THAT THIS INDEMNITY AGREEMENT SHALL NOT APPLY TO ANY LOSS,
LIABILITY, CLAIM, DAMAGE OR EXPENSE TO THE EXTENT ARISING OUT OF ANY UNTRUE
STATEMENT OR OMISSION OR ALLEGED UNTRUE STATEMENT OR OMISSION MADE IN RELIANCE
UPON AND IN CONFORMITY WITH WRITTEN INFORMATION FURNISHED TO THE COMPANY BY ANY
U.S. UNDERWRITER EXPRESSLY FOR USE IN THE REGISTRATION STATEMENT (OR ANY
AMENDMENT THERETO), INCLUDING THE RULE 430A INFORMATION AND THE RULE 434
INFORMATION, IF APPLICABLE, OR ANY PRELIMINARY PROSPECTUS OR THE U.S. PROSPECTUS
(OR ANY AMENDMENT OR SUPPLEMENT THERETO); AND PROVIDED FURTHER THAT THE COMPANY
WILL NOT BE LIABLE TO ANY U.S. UNDERWRITER WITH RESPECT TO ANY PROSPECTUS TO THE
EXTENT THAT THE COMPANY SHALL SUSTAIN THE BURDEN OF PROVING THAT ANY SUCH LOSS,
LIABILITY, CLAIM, DAMAGE OR EXPENSE RESULTED FROM THE FACT THAT SUCH U.S.
UNDERWRITER, IN CONTRAVENTION OF A REQUIREMENT OF THIS AGREEMENT OR APPLICABLE
LAW, SOLD SECURITIES TO A PERSON TO WHOM SUCH U.S. UNDERWRITER FAILED TO SEND OR
GIVE, AT OR PRIOR TO THE CLOSING DATE, A COPY OF THE U.S. PROSPECTUS, AS THEN
AMENDED OR SUPPLEMENTED IF: (I) THE COMPANY HAS PREVIOUSLY FURNISHED COPIES
THEREOF (SUFFICIENTLY IN ADVANCE OF THE CLOSING DATE TO ALLOW FOR DISTRIBUTION
BY THE CLOSING DATE) TO THE U.S. UNDERWRITER AND THE LOSS, LIABILITY, CLAIM,
DAMAGE OR EXPENSE OF SUCH U.S. UNDERWRITER RESULTED FROM AN UNTRUE STATEMENT OR
OMISSION OF A MATERIAL FACT CONTAINED IN OR OMITTED FROM THE PRELIMINARY
PROSPECTUS WHICH WAS CORRECTED IN THE U.S. PROSPECTUS AS, IF APPLICABLE, AMENDED
OR SUPPLEMENTED PRIOR TO THE CLOSING DATE AND SUCH U.S. PROSPECTUS WAS REQUIRED
BY LAW TO BE DELIVERED AT OR PRIOR TO THE WRITTEN CONFIRMATION OF SALE TO SUCH
PERSON AND (II) SUCH FAILURE TO GIVE OR SEND SUCH U.S. PROSPECTUS BY THE CLOSING
DATE TO THE PARTY OR PARTIES ASSERTING SUCH LOSS, LIABILITY, CLAIM, DAMAGE OR
EXPENSE WOULD HAVE CONSTITUTED THE SOLE DEFENSE TO THE CLAIM ASSERTED BY SUCH
PERSON.
(B) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. EACH U.S.
UNDERWRITER SEVERALLY AGREES TO INDEMNIFY AND HOLD HARMLESS THE COMPANY, ITS
DIRECTORS, EACH OF ITS OFFICERS WHO SIGNED THE REGISTRATION STATEMENT, AND EACH
PERSON, IF ANY, WHO CONTROLS THE COMPANY WITHIN THE MEANING OF SECTION 15 OF THE
1933 ACT OR SECTION 20 OF THE 1934 ACT AGAINST ANY AND ALL LOSS, LIABILITY,
CLAIM, DAMAGE AND EXPENSE DESCRIBED IN THE INDEMNITY CONTAINED IN SUBSECTION (A)
OF THIS SECTION, AS INCURRED, BUT ONLY WITH RESPECT TO UNTRUE STATEMENTS OR
OMISSIONS, OR ALLEGED UNTRUE STATEMENTS OR OMISSIONS, MADE IN THE REGISTRATION
STATEMENT (OR ANY AMENDMENT THERETO), INCLUDING THE RULE 430A INFORMATION AND
THE RULE 434 INFORMATION, IF APPLICABLE, OR ANY PRELIMINARY PROSPECTUS OR THE
U.S. PROSPECTUS (OR ANY AMENDMENT OR SUPPLEMENT THERETO) IN RELIANCE UPON AND IN
CONFORMITY WITH WRITTEN INFORMATION FURNISHED TO THE COMPANY BY SUCH U.S.
UNDERWRITER EXPRESSLY FOR USE IN THE REGISTRATION STATEMENT (OR ANY AMENDMENT
THERETO) OR SUCH PRELIMINARY PROSPECTUS OR THE U.S.
PROSPECTUS (OR ANY AMENDMENT OR SUPPLEMENT THERETO).
(C) ACTIONS AGAINST PARTIES; NOTIFICATION. EACH INDEMNIFIED PARTY SHALL
GIVE NOTICE AS PROMPTLY AS REASONABLY PRACTICABLE TO EACH INDEMNIFYING PARTY OF
ANY ACTION COMMENCED AGAINST IT IN RESPECT OF WHICH INDEMNITY MAY BE SOUGHT
HEREUNDER, BUT FAILURE TO SO NOTIFY AN INDEMNIFYING PARTY SHALL NOT RELIEVE SUCH
INDEMNIFYING PARTY FROM ANY LIABILITY HEREUNDER TO THE EXTENT IT IS NOT
MATERIALLY PREJUDICED AS A RESULT THEREOF AND IN ANY EVENT SHALL NOT RELIEVE IT
FROM ANY LIABILITY WHICH IT MAY HAVE OTHERWISE THAN ON ACCOUNT OF THIS INDEMNITY
AGREEMENT. IN THE CASE OF PARTIES INDEMNIFIED PURSUANT TO SECTION 6(A) ABOVE,
COUNSEL TO THE INDEMNIFIED PARTIES SHALL BE SELECTED BY ▇▇▇▇▇▇▇ ▇▇▇▇▇, AND, IN
THE CASE OF PARTIES INDEMNIFIED PURSUANT TO SECTION 6(B) ABOVE, COUNSEL TO THE
INDEMNIFIED PARTIES SHALL BE SELECTED BY THE COMPANY. AN 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 IN WRITING BY SUCH COUNSEL THAT THERE MAY BE ONE OR MORE
LEGAL DEFENSES AVAILABLE TO IT THAT ARE DIFFERENT FROM OR ADDITIONAL TO THOSE
AVAILABLE TO THE INDEMNIFYING PARTY. IN NO EVENT SHALL THE INDEMNIFYING PARTIES
BE LIABLE FOR FEES AND EXPENSES OF MORE THAN ONE COUNSEL (IN ADDITION TO ANY
LOCAL COUNSEL) SEPARATE FROM THEIR OWN COUNSEL FOR ALL INDEMNIFIED PARTIES IN
CONNECTION WITH ANY ONE ACTION OR SEPARATE BUT SIMILAR OR RELATED ACTIONS IN THE
SAME JURISDICTION ARISING OUT OF THE SAME GENERAL ALLEGATIONS OR CIRCUMSTANCES.
NO
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INDEMNIFYING PARTY SHALL, WITHOUT THE PRIOR WRITTEN CONSENT OF THE INDEMNIFIED
PARTIES, SETTLE OR COMPROMISE OR CONSENT TO THE ENTRY OF ANY JUDGMENT WITH
RESPECT TO ANY LITIGATION, OR ANY INVESTIGATION OR PROCEEDING BY ANY
GOVERNMENTAL AGENCY OR BODY, COMMENCED OR THREATENED, OR ANY CLAIM WHATSOEVER IN
RESPECT OF WHICH INDEMNIFICATION OR CONTRIBUTION COULD BE SOUGHT UNDER THIS
SECTION 6 OR SECTION 7 HEREOF (WHETHER OR NOT THE INDEMNIFIED PARTIES ARE ACTUAL
OR POTENTIAL PARTIES THERETO), UNLESS SUCH SETTLEMENT, COMPROMISE OR CONSENT (I)
INCLUDES AN UNCONDITIONAL RELEASE OF EACH INDEMNIFIED PARTY FROM ALL LIABILITY
ARISING OUT OF SUCH LITIGATION, INVESTIGATION, PROCEEDING OR CLAIM 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 ANY INDEMNIFIED PARTY.
(D) SETTLEMENT WITHOUT CONSENT IF FAILURE TO REIMBURSE. IF AT ANY TIME AN
INDEMNIFIED PARTY SHALL HAVE REQUESTED AN INDEMNIFYING PARTY TO REIMBURSE THE
INDEMNIFIED PARTY FOR FEES AND EXPENSES OF COUNSEL, SUCH INDEMNIFYING PARTY
AGREES THAT IT SHALL BE LIABLE FOR ANY SETTLEMENT OF THE NATURE CONTEMPLATED BY
SECTION 6(A)(II) EFFECTED WITHOUT ITS WRITTEN CONSENT IF (I) SUCH SETTLEMENT IS
ENTERED INTO MORE THAN 45 DAYS AFTER RECEIPT BY SUCH INDEMNIFYING PARTY OF THE
AFORESAID REQUEST, (II) SUCH INDEMNIFYING PARTY SHALL HAVE RECEIVED NOTICE OF
THE TERMS OF SUCH SETTLEMENT AT LEAST 30 DAYS PRIOR TO SUCH SETTLEMENT BEING
ENTERED INTO AND (III) SUCH INDEMNIFYING PARTY SHALL NOT HAVE REIMBURSED SUCH
INDEMNIFIED PARTY IN ACCORDANCE WITH SUCH REQUEST PRIOR TO THE DATE OF SUCH
SETTLEMENT.
(E) INDEMNIFICATION FOR RESERVED SECURITIES. IN CONNECTION WITH THE OFFER
AND SALE OF THE RESERVED SECURITIES, THE COMPANY AGREES, PROMPTLY UPON A REQUEST
IN WRITING TO INDEMNIFY AND HOLD HARMLESS THE UNDERWRITERS FROM AND AGAINST ANY
AND ALL LOSSES, LIABILITIES, CLAIMS, DAMAGES AND EXPENSES INCURRED BY THEM AS A
RESULT OF THE FAILURE OF ANY PERSON OR ENTITY TO WHOM RESERVED SECURITIES ARE
OFFERED TO PAY FOR AND ACCEPT DELIVERY OF RESERVED SECURITIES WHICH, BY THE END
OF THE FIRST BUSINESS DAY FOLLOWING THE DATE OF THIS AGREEMENT, WERE SUBJECT TO
A PROPERLY CONFIRMED AGREEMENT TO PURCHASE.
SECTION 7. CONTRIBUTION. IF THE INDEMNIFICATION PROVIDED FOR IN SECTION 6
HEREOF IS FOR ANY REASON UNAVAILABLE TO OR INSUFFICIENT TO HOLD HARMLESS AN
INDEMNIFIED PARTY IN RESPECT OF ANY LOSSES, LIABILITIES, CLAIMS, DAMAGES OR
EXPENSES REFERRED TO THEREIN, THEN EACH INDEMNIFYING PARTY SHALL CONTRIBUTE TO
THE AGGREGATE AMOUNT OF SUCH LOSSES, LIABILITIES, CLAIMS, DAMAGES AND EXPENSES
INCURRED BY SUCH INDEMNIFIED PARTY, AS INCURRED, (I) IN SUCH PROPORTION AS IS
APPROPRIATE TO REFLECT THE RELATIVE BENEFITS RECEIVED BY THE COMPANY ON THE ONE
HAND AND THE U.S. UNDERWRITERS ON THE OTHER HAND FROM THE OFFERING OF THE
SECURITIES PURSUANT TO THIS AGREEMENT OR (II) IF THE ALLOCATION PROVIDED BY
CLAUSE (I) 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 OF THE U.S.
UNDERWRITERS ON THE OTHER HAND IN CONNECTION WITH THE STATEMENTS OR OMISSIONS
WHICH RESULTED IN SUCH LOSSES, LIABILITIES, CLAIMS, DAMAGES OR EXPENSES, AS WELL
AS ANY OTHER RELEVANT EQUITABLE CONSIDERATIONS.
THE RELATIVE BENEFITS RECEIVED BY THE COMPANY ON THE ONE HAND AND THE U.S.
UNDERWRITERS ON THE OTHER HAND IN CONNECTION WITH THE OFFERING OF THE U.S.
SECURITIES PURSUANT TO THIS AGREEMENT SHALL BE DEEMED TO BE IN THE SAME
RESPECTIVE PROPORTIONS AS THE TOTAL NET PROCEEDS FROM THE OFFERING OF THE U.S.
SECURITIES PURSUANT TO THIS AGREEMENT (BEFORE DEDUCTING EXPENSES) RECEIVED BY
THE COMPANY AND THE TOTAL UNDERWRITING DISCOUNT RECEIVED BY THE U.S.
UNDERWRITERS, IN EACH CASE AS SET FORTH ON THE COVER OF THE U.S. PROSPECTUS, OR,
IF RULE 434 IS USED, THE CORRESPONDING LOCATION ON THE TERM SHEET, BEAR TO THE
AGGREGATE INITIAL PUBLIC OFFERING PRICE OF THE U.S. SECURITIES AS SET FORTH ON
SUCH COVER.
THE RELATIVE FAULT OF THE COMPANY ON THE ONE HAND AND THE U.S.
UNDERWRITERS ON THE OTHER HAND SHALL BE DETERMINED BY REFERENCE TO, AMONG OTHER
THINGS, WHETHER ANY SUCH UNTRUE OR ALLEGED UNTRUE STATEMENT OF A MATERIAL FACT
OR OMISSION OR ALLEGED OMISSION TO STATE A MATERIAL FACT RELATES TO INFORMATION
SUPPLIED BY THE COMPANY OR BY THE U.S. UNDERWRITERS AND THE PARTIES' RELATIVE
INTENT, KNOWLEDGE, ACCESS TO INFORMATION AND OPPORTUNITY TO CORRECT OR PREVENT
SUCH STATEMENT OR OMISSION.
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THE COMPANY AND THE U.S. UNDERWRITERS AGREE THAT IT WOULD NOT BE JUST AND
EQUITABLE IF CONTRIBUTION PURSUANT TO THIS SECTION 7 WERE DETERMINED BY PRO RATA
ALLOCATION (EVEN IF THE U.S. UNDERWRITERS WERE TREATED AS ONE ENTITY FOR SUCH
PURPOSE) OR BY ANY OTHER METHOD OF ALLOCATION WHICH DOES NOT TAKE ACCOUNT OF THE
EQUITABLE CONSIDERATIONS REFERRED TO ABOVE IN THIS SECTION 7. THE AGGREGATE
AMOUNT OF LOSSES, LIABILITIES, CLAIMS, DAMAGES AND EXPENSES INCURRED BY AN
INDEMNIFIED PARTY AND REFERRED TO ABOVE IN THIS SECTION 7 SHALL BE DEEMED TO
INCLUDE ANY LEGAL OR OTHER EXPENSES REASONABLY INCURRED BY SUCH INDEMNIFIED
PARTY IN INVESTIGATING, PREPARING OR DEFENDING AGAINST ANY LITIGATION, OR ANY
INVESTIGATION OR PROCEEDING BY ANY GOVERNMENTAL AGENCY OR BODY, COMMENCED OR
THREATENED, OR ANY CLAIM WHATSOEVER BASED UPON ANY SUCH UNTRUE OR ALLEGED UNTRUE
STATEMENT OR OMISSION OR ALLEGED OMISSION.
NOTWITHSTANDING THE PROVISIONS OF THIS SECTION 7, NO U.S. UNDERWRITER
SHALL BE REQUIRED TO CONTRIBUTE ANY AMOUNT IN EXCESS OF THE AMOUNT BY WHICH THE
TOTAL PRICE AT WHICH THE U.S. SECURITIES UNDERWRITTEN BY IT AND DISTRIBUTED TO
THE PUBLIC WERE OFFERED TO THE PUBLIC EXCEEDS THE AMOUNT OF ANY DAMAGES WHICH
SUCH U.S. UNDERWRITER HAS OTHERWISE BEEN REQUIRED TO PAY BY REASON OF ANY 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 1933 ACT) SHALL BE ENTITLED TO CONTRIBUTION FROM ANY PERSON
WHO WAS NOT GUILTY OF SUCH FRAUDULENT MISREPRESENTATION.
FOR PURPOSES OF THIS SECTION 7, EACH PERSON, IF ANY, WHO CONTROLS A U.S.
UNDERWRITER WITHIN THE MEANING OF SECTION 15 OF THE 1933 ACT OR SECTION 20 OF
THE 1934 ACT SHALL HAVE THE SAME RIGHTS TO CONTRIBUTION AS SUCH U.S.
UNDERWRITER, AND EACH DIRECTOR OF THE COMPANY, EACH OFFICER OF THE COMPANY WHO
SIGNED THE REGISTRATION STATEMENT, AND EACH PERSON, IF ANY, WHO CONTROLS THE
COMPANY WITHIN THE MEANING OF SECTION 15 OF THE 1933 ACT OR SECTION 20 OF THE
1934 ACT SHALL HAVE THE SAME RIGHTS TO CONTRIBUTION AS THE COMPANY. THE U.S.
UNDERWRITERS' RESPECTIVE OBLIGATIONS TO CONTRIBUTE PURSUANT TO THIS SECTION 7
ARE SEVERAL IN PROPORTION TO THE NUMBER OF INITIAL U.S. SECURITIES SET FORTH
OPPOSITE THEIR RESPECTIVE NAMES IN SCHEDULE A HERETO AND NOT JOINT.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
ALL REPRESENTATIONS, WARRANTIES AND AGREEMENTS CONTAINED IN THIS AGREEMENT OR IN
CERTIFICATES OF OFFICERS OF THE COMPANY OR ANY OF ITS SUBSIDIARIES SUBMITTED
PURSUANT HERETO, SHALL REMAIN OPERATIVE AND IN FULL FORCE AND EFFECT, REGARDLESS
OF ANY INVESTIGATION MADE BY OR ON BEHALF OF ANY U.S. UNDERWRITER OR CONTROLLING
PERSON, OR BY OR ON BEHALF OF THE COMPANY, AND SHALL SURVIVE DELIVERY OF THE
SECURITIES TO THE U.S. UNDERWRITERS.
SECTION 9. TERMINATION OF AGREEMENT.
(A) TERMINATION; GENERAL. THE U.S. UNDERWRITERS MAY TERMINATE THIS
AGREEMENT, BY NOTICE TO THE COMPANY, AT ANY TIME AT OR PRIOR TO CLOSING TIME (I)
IF THERE HAS BEEN, SINCE THE TIME OF EXECUTION OF THIS AGREEMENT OR SINCE THE
RESPECTIVE DATES AS OF WHICH INFORMATION IS GIVEN IN THE U.S. PROSPECTUS, ANY
MATERIAL ADVERSE CHANGE IN THE CONDITION, FINANCIAL OR OTHERWISE, OR IN THE
EARNINGS, BUSINESS AFFAIRS OR BUSINESS PROSPECTS OF THE COMPANY AND THE
SUBSIDIARIES CONSIDERED AS ONE ENTERPRISE, WHETHER OR NOT ARISING IN THE
ORDINARY COURSE OF BUSINESS, OR (II) IF THERE HAS OCCURRED ANY MATERIAL ADVERSE
CHANGE IN THE FINANCIAL MARKETS IN THE UNITED STATES OR THE INTERNATIONAL
FINANCIAL MARKETS, ANY OUTBREAK OF HOSTILITIES OR ESCALATION THEREOF OR OTHER
CALAMITY OR CRISIS OR ANY CHANGE OR DEVELOPMENT INVOLVING A PROSPECTIVE CHANGE
IN NATIONAL OR INTERNATIONAL POLITICAL, FINANCIAL OR ECONOMIC CONDITIONS, IN
EACH CASE THE EFFECT OF WHICH IS SUCH AS TO MAKE IT, IN THE JUDGMENT OF THE U.S.
UNDERWRITERS, IMPRACTICABLE TO MARKET THE SECURITIES OR TO ENFORCE CONTRACTS FOR
THE SALE OF THE SECURITIES, OR (III) IF TRADING IN ANY SECURITIES OF THE COMPANY
HAS BEEN SUSPENDED OR MATERIALLY LIMITED BY THE COMMISSION OR THE NASDAQ
NATIONAL MARKET, OR IF TRADING GENERALLY ON THE AMERICAN STOCK EXCHANGE OR THE
NEW YORK STOCK EXCHANGE OR IN THE NASDAQ NATIONAL MARKET HAS BEEN SUSPENDED OR
MATERIALLY LIMITED, OR MINIMUM OR MAXIMUM PRICES FOR TRADING HAVE BEEN FIXED, OR
MAXIMUM RANGES FOR PRICES HAVE BEEN REQUIRED, BY ANY OF SAID EXCHANGES OR BY
SUCH SYSTEM OR BY ORDER OF THE COMMISSION, THE NATIONAL
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ASSOCIATION OF SECURITIES DEALERS, INC. OR ANY OTHER GOVERNMENTAL AUTHORITY, OR
(IV) IF A BANKING MORATORIUM HAS BEEN DECLARED BY EITHER FEDERAL OR NEW YORK
AUTHORITIES.
(B) LIABILITIES. IF THIS AGREEMENT IS TERMINATED PURSUANT TO THIS SECTION,
SUCH TERMINATION SHALL BE WITHOUT LIABILITY OF ANY PARTY TO ANY OTHER PARTY
EXCEPT AS PROVIDED IN SECTION 4 HEREOF, AND PROVIDED FURTHER THAT SECTIONS 1, 6,
7 AND 8 SHALL SURVIVE SUCH TERMINATION AND REMAIN IN FULL FORCE AND EFFECT.
SECTION 10. DEFAULT BY ONE OR MORE OF THE U.S. UNDERWRITERS. IF ONE OR
MORE OF THE U.S. UNDERWRITERS SHALL FAIL AT CLOSING TIME OR A DATE OF DELIVERY
TO PURCHASE THE SECURITIES WHICH IT OR THEY ARE OBLIGATED TO PURCHASE UNDER THIS
AGREEMENT (THE "DEFAULTED SECURITIES"), THE U.S. UNDERWRITERS SHALL HAVE THE
RIGHT, WITHIN 24 HOURS THEREAFTER, TO MAKE ARRANGEMENTS FOR ONE OR MORE OF THE
NON-DEFAULTING U.S. UNDERWRITERS, OR ANY OTHER UNDERWRITERS, TO PURCHASE ALL,
BUT NOT LESS THAN ALL, OF THE DEFAULTED SECURITIES IN SUCH AMOUNTS AS MAY BE
AGREED UPON AND UPON THE TERMS HEREIN SET FORTH; IF, HOWEVER, THE U.S.
UNDERWRITERS SHALL NOT HAVE COMPLETED SUCH ARRANGEMENTS WITHIN SUCH 24-HOUR
PERIOD, THEN:
(A) IF THE NUMBER OF DEFAULTED SECURITIES DOES NOT EXCEED 10% OF THE
NUMBER OF U.S. SECURITIES TO BE PURCHASED ON SUCH DATE, EACH OF THE
NON-DEFAULTING U.S. UNDERWRITERS SHALL BE OBLIGATED, SEVERALLY AND NOT JOINTLY,
TO PURCHASE THE FULL AMOUNT THEREOF IN THE PROPORTIONS THAT THEIR RESPECTIVE
UNDERWRITING OBLIGATIONS HEREUNDER BEAR TO THE UNDERWRITING OBLIGATIONS OF ALL
NON-DEFAULTING U.S. UNDERWRITERS, OR
(B) IF THE NUMBER OF DEFAULTED SECURITIES EXCEEDS 10% OF THE NUMBER OF
U.S. SECURITIES TO BE PURCHASED ON SUCH DATE, THIS AGREEMENT OR, WITH RESPECT TO
ANY DATE OF DELIVERY WHICH OCCURS AFTER THE CLOSING TIME, THE OBLIGATION OF THE
U.S. UNDERWRITERS TO PURCHASE AND OF THE COMPANY TO SELL THE OPTION SECURITIES
TO BE PURCHASED AND SOLD ON SUCH DATE OF DELIVERY SHALL TERMINATE WITHOUT
LIABILITY ON THE PART OF ANY NON-DEFAULTING U.S. UNDERWRITER.
NO ACTION TAKEN PURSUANT TO THIS SECTION SHALL RELIEVE ANY DEFAULTING U.S.
UNDERWRITER FROM LIABILITY IN RESPECT OF ITS DEFAULT.
IN THE EVENT OF ANY SUCH DEFAULT WHICH DOES NOT RESULT IN A TERMINATION OF
THIS AGREEMENT OR, IN THE CASE OF A DATE OF DELIVERY WHICH IS AFTER THE CLOSING
TIME, WHICH DOES NOT RESULT IN A TERMINATION OF THE OBLIGATION OF THE U.S.
UNDERWRITERS TO PURCHASE AND THE COMPANY TO SELL THE RELEVANT U.S. OPTION
SECURITIES, AS THE CASE MAY BE, EITHER THE U.S. UNDERWRITERS OR THE COMPANY
SHALL HAVE THE RIGHT TO POSTPONE THE CLOSING TIME OR THE RELEVANT DATE OF
DELIVERY, AS THE CASE MAY BE, FOR A PERIOD NOT EXCEEDING SEVEN DAYS IN ORDER TO
EFFECT ANY REQUIRED CHANGES IN THE REGISTRATION STATEMENT OR PROSPECTUS OR IN
ANY OTHER DOCUMENTS OR ARRANGEMENTS. AS USED HEREIN, THE TERM "U.S. UNDERWRITER"
INCLUDES ANY PERSON SUBSTITUTED FOR A U.S. UNDERWRITER UNDER THIS SECTION 10.
SECTION 11. NOTICES. ALL NOTICES AND OTHER COMMUNICATIONS HEREUNDER SHALL
BE IN WRITING AND SHALL BE DEEMED TO HAVE BEEN DULY GIVEN IF MAILED OR
TRANSMITTED BY ANY STANDARD FORM OF TELECOMMUNICATION. NOTICES TO THE U.S.
UNDERWRITERS SHALL BE DIRECTED TO THE U.S. UNDERWRITERS, ▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ FINANCIAL CENTER, NEW YORK, NEW YORK 10281-1201, ATTENTION OF
_______________; AND NOTICES TO THE COMPANY SHALL BE DIRECTED TO IT AT ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ATTENTION OF ▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
SECTION 12. PARTIES. THIS AGREEMENT SHALL EACH INURE TO THE BENEFIT OF AND
BE BINDING UPON THE U.S. UNDERWRITERS AND THE COMPANY AND THEIR RESPECTIVE
SUCCESSORS. NOTHING EXPRESSED OR MENTIONED IN THIS AGREEMENT IS INTENDED OR
SHALL BE CONSTRUED TO GIVE ANY PERSON, FIRM OR CORPORATION, OTHER THAN THE U.S.
UNDERWRITERS AND THE COMPANY AND THEIR RESPECTIVE SUCCESSORS AND THE CONTROLLING
PERSONS AND OFFICERS AND DIRECTORS REFERRED TO IN SECTIONS 6 AND 7 AND THEIR
HEIRS AND LEGAL REPRESENTATIVES, ANY LEGAL OR EQUITABLE RIGHT, REMEDY OR CLAIM
UNDER OR IN RESPECT OF THIS AGREEMENT OR ANY PROVISION HEREIN CONTAINED. THIS
AGREEMENT AND
-19-
ALL CONDITIONS AND PROVISIONS HEREOF ARE INTENDED TO BE FOR THE SOLE AND
EXCLUSIVE BENEFIT OF THE U.S. UNDERWRITERS AND THE COMPANY AND THEIR RESPECTIVE
SUCCESSORS, AND SAID CONTROLLING PERSONS AND OFFICERS AND DIRECTORS AND THEIR
HEIRS AND LEGAL REPRESENTATIVES, AND FOR THE BENEFIT OF NO OTHER PERSON, FIRM OR
CORPORATION. NO PURCHASER OF SECURITIES FROM ANY U.S. UNDERWRITER SHALL BE
DEEMED TO BE A SUCCESSOR BY REASON MERELY OF SUCH PURCHASE.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SPECIFIED TIMES OF DAY IN THIS AGREEMENT REFER TO NEW YORK CITY TIME.
SECTION 14. EFFECT OF HEADINGS. THE ARTICLE AND SECTION HEADINGS HEREIN
AND THE TABLE OF CONTENTS ARE FOR CONVENIENCE ONLY AND SHALL NOT AFFECT THE
CONSTRUCTION HEREOF.
-20-
IF THE FOREGOING IS IN ACCORDANCE WITH YOUR UNDERSTANDING OF OUR
AGREEMENT, PLEASE SIGN AND RETURN TO THE COMPANY A COUNTERPART HEREOF, WHEREUPON
THIS INSTRUMENT, ALONG WITH ALL COUNTERPARTS, WILL BECOME A BINDING AGREEMENT
BETWEEN THE U.S. UNDERWRITERS AND THE COMPANY IN ACCORDANCE WITH ITS TERMS.
VERY TRULY YOURS,
PACKAGED ICE, INC.
BY:___________________________
TITLE:________________________
CONFIRMED AND ACCEPTED,
AS OF THE DATE FIRST ABOVE WRITTEN:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇▇▇▇▇ & COMPANY, INC.
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC
▇▇▇▇▇▇▇▇ INC.
BY: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
BY:_______________________________________
AUTHORIZED SIGNATORY
-21-
SCHEDULE A
NUMBER OF
INITIAL U.S.
NAME OF U.S. UNDERWRITER SECURITIES
--------------------------------------- ------------------------------------
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED.....................
▇▇▇▇▇▇▇▇▇ & COMPANY, INC...............
BEAR, ▇▇▇▇▇▇▇ & CO. INC................
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇ SECURITIES LLC..
▇▇▇▇▇▇▇▇ INC........................... ___________
TOTAL............................
===========
Sch A-1
SCHEDULE B
PACKAGED ICE, INC.
_________ SHARES OF COMMON STOCK
(PAR VALUE $.01 PER SHARE)
1. THE INITIAL PUBLIC OFFERING PRICE PER SHARE FOR THE SECURITIES,
DETERMINED AS PROVIDED IN SAID SECTION 2, SHALL BE $O.
2. THE PURCHASE PRICE PER SHARE FOR THE U.S. SECURITIES TO BE PAID BY THE
SEVERAL U.S. UNDERWRITERS SHALL BE $O, BEING AN AMOUNT EQUAL TO THE INITIAL
PUBLIC OFFERING PRICE SET FORTH ABOVE LESS $O PER SHARE; PROVIDED THAT THE
PURCHASE PRICE PER SHARE FOR ANY U.S. OPTION SECURITIES PURCHASED UPON THE
EXERCISE OF THE OVER-ALLOTMENT OPTION DESCRIBED IN SECTION 2(B) SHALL BE REDUCED
BY AN AMOUNT PER SHARE EQUAL TO ANY DIVIDENDS OR DISTRIBUTIONS DECLARED BY THE
COMPANY AND PAYABLE ON THE INITIAL U.S. SECURITIES BUT NOT PAYABLE ON THE U.S.
OPTION SECURITIES.
Sch B-1
SCHEDULE C
PERSONS SUBJECT TO LOCK-UP
Sch C-1
EXHIBIT A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(B)(I)
(I) EACH OF THE COMPANY AND THE SUBSIDIARIES HAS BEEN DULY INCORPORATED
AND IS VALIDLY EXISTING AS A CORPORATION IN GOOD STANDING UNDER THE LAWS OF ITS
RESPECTIVE JURISDICTION OF INCORPORATION AND HAS ALL REQUISITE CORPORATE POWER
AND AUTHORITY TO OWN, LEASE AND OPERATE ITS PROPERTIES AND TO CONDUCT ITS
BUSINESS AS DESCRIBED IN THE PROSPECTUSES AND TO ENTER INTO AND PERFORM ITS
OBLIGATIONS UNDER THE U.S. PURCHASE AGREEMENT AND THE INTERNATIONAL PURCHASE
AGREEMENT.
(II) EACH OF THE COMPANY AND THE SUBSIDIARIES IS DULY QUALIFIED AS A
FOREIGN CORPORATION TO TRANSACT BUSINESS AND IS IN GOOD STANDING IN EACH
JURISDICTION IN WHICH SUCH QUALIFICATION IS REQUIRED, WHETHER BY REASON OF THE
OWNERSHIP OR LEASING OF PROPERTY OR THE CONDUCT OF BUSINESS, EXCEPT WHERE THE
FAILURE SO TO QUALIFY OR TO BE IN GOOD STANDING WOULD NOT RESULT IN A MATERIAL
ADVERSE EFFECT.
(III) THE AUTHORIZED, ISSUED AND OUTSTANDING CAPITAL STOCK OF THE COMPANY
IS AS SET FORTH IN THE PROSPECTUS IN THE COLUMN ENTITLED "ACTUAL" UNDER THE
CAPTION "CAPITALIZATION" (EXCEPT FOR SUBSEQUENT ISSUANCES, IF ANY, PURSUANT TO
THE U.S. PURCHASE AGREEMENT AND THE INTERNATIONAL PURCHASE AGREEMENT OR PURSUANT
TO RESERVATIONS, AGREEMENTS OR EMPLOYEE BENEFIT PLANS REFERRED TO IN THE
PROSPECTUSES OR PURSUANT TO THE EXERCISE OF CONVERTIBLE SECURITIES OR OPTIONS
REFERRED TO IN THE PROSPECTUSES); THE SHARES OF ISSUED AND OUTSTANDING CAPITAL
STOCK HAVE BEEN DULY AUTHORIZED AND VALIDLY ISSUED AND ARE FULLY PAID AND
NON-ASSESSABLE; AND NONE OF THE OUTSTANDING SHARES OF CAPITAL STOCK OF THE
COMPANY WAS ISSUED IN VIOLATION OF ANY PREEMPTIVE RIGHTS AFFORDED BY THE
COMPANY'S ARTICLES OF INCORPORATION OR BYLAWS OR BY STATUTE OR, TO OUR
KNOWLEDGE, ANY OTHER SIMILAR RIGHTS OF ANY SECURITYHOLDER OF THE COMPANY.
(IV) THE SECURITIES TO BE PURCHASED BY THE U.S. UNDERWRITERS AND THE
INTERNATIONAL MANAGERS FROM THE COMPANY HAVE BEEN DULY AUTHORIZED FOR ISSUANCE
AND SALE TO THE UNDERWRITERS PURSUANT TO THE U.S. PURCHASE AGREEMENT AND THE
INTERNATIONAL PURCHASE AGREEMENT, RESPECTIVELY, AND, WHEN ISSUED AND DELIVERED
BY THE COMPANY PURSUANT TO THE U.S. PURCHASE AGREEMENT AND THE INTERNATIONAL
PURCHASE AGREEMENT, RESPECTIVELY, AGAINST PAYMENT OF THE CONSIDERATION SET FORTH
IN THE U.S. PURCHASE AGREEMENT AND THE INTERNATIONAL PURCHASE AGREEMENT, WILL BE
VALIDLY ISSUED AND FULLY PAID AND NON-ASSESSABLE AND NO HOLDER OF THE SECURITIES
IS OR WILL BE SUBJECT TO PERSONAL LIABILITY BY REASON OF BEING SUCH A HOLDER.
(V) THE ISSUANCE OF THE SECURITIES IS NOT SUBJECT TO THE PREEMPTIVE RIGHTS
AFFORDED BY THE COMPANY'S ARTICLES OF INCORPORATION OR BYLAWS OR BY STATUTE OR,
TO OUR KNOWLEDGE, ANY OTHER SIMILAR RIGHTS OF ANY SECURITY HOLDER OF THE
COMPANY.
(VI) THE U.S. PURCHASE AGREEMENT AND THE INTERNATIONAL PURCHASE AGREEMENT
HAVE BEEN DULY AUTHORIZED, EXECUTED AND DELIVERED BY THE COMPANY.
(VII) THE REGISTRATION STATEMENT, INCLUDING ANY RULE 462(B) REGISTRATION
STATEMENT, HAS BEEN DECLARED EFFECTIVE UNDER THE 1933 ACT; ANY REQUIRED FILING
OF THE PROSPECTUSES PURSUANT TO RULE 424(B) HAS BEEN MADE IN THE MANNER AND
WITHIN THE TIME PERIOD REQUIRED BY RULE 424(B); AND, TO OUR KNOWLEDGE, NO STOP
ORDER SUSPENDING THE EFFECTIVENESS OF THE REGISTRATION STATEMENT OR ANY RULE
462(B) REGISTRATION STATEMENT HAS BEEN ISSUED UNDER THE 1933 ACT AND NO
PROCEEDINGS FOR THAT PURPOSE HAVE BEEN INSTITUTED OR ARE PENDING OR THREATENED
BY THE COMMISSION.
A-1
(VIII)THE REGISTRATION STATEMENT, INCLUDING ANY RULE 462(B) REGISTRATION
STATEMENT, AND THE RULE 430A INFORMATION, AS APPLICABLE, THE PROSPECTUSES AND
EACH AMENDMENT OR SUPPLEMENT TO THE REGISTRATION STATEMENT AND THE PROSPECTUSES
AS OF THEIR RESPECTIVE EFFECTIVE OR ISSUE DATES (OTHER THAN THE FINANCIAL
STATEMENTS AND SUPPORTING SCHEDULES INCLUDED THEREIN OR OMITTED THEREFROM, AS TO
WHICH WE EXPRESS NO OPINION) COMPLIED AS TO FORM IN ALL MATERIAL RESPECTS WITH
THE REQUIREMENTS OF THE 1933 ACT AND THE 1933 ACT REGULATIONS.
(IX) THE FORM OF CERTIFICATE USED TO EVIDENCE THE COMMON STOCK COMPLIES IN
ALL MATERIAL RESPECTS WITH ALL APPLICABLE STATUTORY REQUIREMENTS, WITH ANY
APPLICABLE REQUIREMENTS OF THE CHARTER AND BY-LAWS OF THE COMPANY AND THE
REQUIREMENTS OF THE NASDAQ NATIONAL MARKET.
(X) TO OUR KNOWLEDGE, THERE IS NOT PENDING OR THREATENED ANY ACTION, SUIT,
PROCEEDING, INQUIRY OR INVESTIGATION, TO WHICH THE COMPANY OR ANY SUBSIDIARY IS
A PARTY, OR TO WHICH THE PROPERTY OF THE COMPANY OR ANY SUBSIDIARY IS SUBJECT,
BEFORE OR BROUGHT BY ANY COURT OR GOVERNMENTAL AGENCY OR BODY, DOMESTIC OR
FOREIGN, WHICH WOULD REASONABLY BE EXPECTED TO RESULT IN A MATERIAL ADVERSE
EFFECT, OR WHICH WOULD REASONABLY BE EXPECTED TO MATERIALLY AND ADVERSELY AFFECT
THE PROPERTIES OR ASSETS THEREOF OR THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED IN THE U.S. PURCHASE AGREEMENT OR THE INTERNATIONAL PURCHASE
AGREEMENT OR THE PERFORMANCE BY THE COMPANY OF ITS OBLIGATIONS THEREUNDER.
(XI) THE INFORMATION IN THE PROSPECTUSES UNDER THE HEADINGS "MANAGEMENT --
STOCK OPTION PLAN," "--1998 STOCK OPTION PLAN," "--EMPLOYMENT AND TERMINATION;"
"CERTAIN TRANSACTIONS;" "DESCRIPTION OF CAPITAL STOCK," "CERTAIN UNITED STATES
TAX CONSIDERATIONS FOR NON-UNITED STATES HOLDERS" AND "SHARES ELIGIBLE FOR
FUTURE SALE," AND IN THE REGISTRATION STATEMENT UNDER ITEM 14, TO THE EXTENT
THAT IT CONSTITUTES MATTERS OF LAW, SUMMARIES OF LEGAL MATTERS, THE COMPANY'S
CHARTER AND BYLAWS OR LEGAL CONCLUSIONS, HAS BEEN
REVIEWED BY US AND IS CORRECT IN ALL MATERIAL RESPECTS.
(XII) TO OUR KNOWLEDGE, THERE ARE NO STATUTES OR REGULATIONS THAT ARE
REQUIRED TO BE DESCRIBED IN THE PROSPECTUSES THAT ARE NOT DESCRIBED AS REQUIRED.
(XIII)ALL DESCRIPTIONS IN THE PROSPECTUSES OF CONTRACTS AND OTHER
DOCUMENTS TO WHICH THE COMPANY OR ANY SUBSIDIARY IS A PARTY ARE ACCURATE IN ALL
MATERIAL RESPECTS; TO OUR KNOWLEDGE, THERE ARE NO FRANCHISES, CONTRACTS,
INDENTURES, MORTGAGES, LOAN AGREEMENTS, NOTES, LEASES OR OTHER INSTRUMENTS
REQUIRED TO BE DESCRIBED OR REFERRED TO IN THE REGISTRATION STATEMENT OR TO BE
FILED AS EXHIBITS THERETO OTHER THAN THOSE DESCRIBED OR REFERRED TO THEREIN OR
FILED OR INCORPORATED BY REFERENCE AS EXHIBITS THERETO, AND THE DESCRIPTIONS
THEREOF OR REFERENCES THERETO ARE CORRECT IN ALL MATERIAL RESPECTS.
(XIV) NO FILING WITH, OR AUTHORIZATION, APPROVAL, CONSENT, LICENSE, ORDER,
REGISTRATION, QUALIFICATION OR DECREE OF, ANY COURT OR GOVERNMENTAL AUTHORITY OR
AGENCY, DOMESTIC OR FOREIGN (OTHER THAN UNDER THE 1933 ACT AND THE 1933 ACT
REGULATIONS, WHICH HAVE BEEN OBTAINED, OR AS MAY BE REQUIRED UNDER THE
SECURITIES OR BLUE SKY LAWS OF THE VARIOUS STATES, AS TO WHICH WE EXPRESS NO
OPINION) IS NECESSARY OR REQUIRED IN CONNECTION WITH THE DUE AUTHORIZATION,
EXECUTION AND DELIVERY OF THE U.S. PURCHASE AGREEMENT AND THE INTERNATIONAL
PURCHASE AGREEMENT OR FOR THE OFFERING, ISSUANCE, SALE OR DELIVERY OF THE
SECURITIES.
(XV) THE EXECUTION, DELIVERY AND PERFORMANCE OF THE U.S. PURCHASE
AGREEMENT AND THE INTERNATIONAL PURCHASE AGREEMENT AND THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED IN THE U.S. PURCHASE AGREEMENT, THE INTERNATIONAL
PURCHASE AGREEMENT AND IN THE REGISTRATION STATEMENT (INCLUDING THE ISSUANCE AND
SALE OF THE SECURITIES, AND THE USE OF THE PROCEEDS FROM THE SALE OF THE
SECURITIES AS DESCRIBED IN THE PROSPECTUSES UNDER THE CAPTION "USE OF PROCEEDS")
AND COMPLIANCE BY THE COMPANY WITH ITS OBLIGATIONS UNDER THE U.S. PURCHASE
AGREEMENT AND THE INTERNATIONAL PURCHASE AGREEMENT DO NOT AND WILL NOT, WHETHER
WITH OR WITHOUT THE GIVING OF NOTICE OR LAPSE OF TIME OR BOTH, CONFLICT WITH OR
CONSTITUTE A BREACH OF, OR DEFAULT OR REPAYMENT EVENT (AS DEFINED IN SECTION
1(A)(X) OF THE PURCHASE AGREEMENTS) UNDER OR RESULT IN THE CREATION
A-2
OR IMPOSITION OF ANY LIEN, CHARGE OR ENCUMBRANCE UPON ANY PROPERTY OR ASSETS OF
THE COMPANY OR ANY SUBSIDIARY PURSUANT TO ANY CONTRACT, INDENTURE, MORTGAGE,
DEED OF TRUST, LOAN OR CREDIT AGREEMENT, NOTE, LEASE OR ANY OTHER AGREEMENT OR
INSTRUMENT, KNOWN TO US, TO WHICH THE COMPANY OR ANY SUBSIDIARY IS A PARTY OR BY
WHICH IT OR ANY OF THEM MAY BE BOUND, OR TO WHICH ANY OF THE PROPERTY OR ASSETS
OF THE COMPANY OR ANY SUBSIDIARY IS SUBJECT (EXCEPT FOR SUCH CONFLICTS, BREACHES
OR DEFAULTS OR LIENS, CHARGES OR ENCUMBRANCES THAT WOULD NOT HAVE A MATERIAL
ADVERSE EFFECT), NOR WILL SUCH ACTION RESULT IN ANY VIOLATION OF THE PROVISIONS
OF THE CHARTER, BY-LAWS OR OTHER GOVERNING DOCUMENTS OF THE COMPANY OR ANY
SUBSIDIARY OR ANY APPLICABLE LAW, STATUTE, RULE, REGULATION APPLICABLE TO THE
TRANSACTIONS OF THE TYPE CONTEMPLATED BY THIS AGREEMENT OR ANY JUDGMENT, ORDER,
WRIT OR DECREE, KNOWN TO US, OF ANY GOVERNMENT, GOVERNMENT INSTRUMENTALITY OR
COURT, DOMESTIC OR FOREIGN, HAVING JURISDICTION OVER THE COMPANY OR ANY
SUBSIDIARY OR ANY OF THEIR RESPECTIVE PROPERTIES, ASSETS OR OPERATIONS.
(XVI) TO OUR KNOWLEDGE, EXCEPT AS SET FORTH IN THE PROSPECTUSES, THERE ARE
NO PERSONS WITH REGISTRATION RIGHTS OR OTHER SIMILAR RIGHTS TO HAVE ANY
SECURITIES REGISTERED PURSUANT TO THE REGISTRATION STATEMENT OR OTHERWISE
REGISTERED BY THE COMPANY UNDER THE 1933 ACT.
(XVII)THE COMPANY IS NOT, AND WILL NOT BE AFTER APPLICATION OF THE
PROCEEDS OF THE OFFERING OF THE SECURITIES AS SET FORTH IN THE PROSPECTUSES, AN
"INVESTMENT COMPANY" OR AN ENTITY "CONTROLLED" BY AN "INVESTMENT COMPANY," AS
SUCH TERMS ARE DEFINED IN THE 1940 ACT.
NOTHING HAS COME TO OUR ATTENTION THAT WOULD LEAD US TO BELIEVE THAT THE
REGISTRATION STATEMENT OR ANY AMENDMENT THERETO, INCLUDING THE RULE 430A
INFORMATION, (EXCEPT FOR FINANCIAL STATEMENTS AND SCHEDULES AND OTHER FINANCIAL
DATA INCLUDED THEREIN OR OMITTED THEREFROM, AS TO WHICH WE MAKE NO STATEMENT),
AT THE TIME SUCH REGISTRATION STATEMENT OR ANY SUCH 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 PROSPECTUSES OR ANY AMENDMENT OR SUPPLEMENT THERETO
(EXCEPT FOR FINANCIAL STATEMENTS AND SCHEDULES AND OTHER FINANCIAL DATA INCLUDED
THEREIN OR OMITTED THEREFROM, AS TO WHICH WE MAKE NO STATEMENT), AT THE TIME THE
PROSPECTUSES WERE ISSUED, AT THE TIME ANY SUCH AMENDED OR SUPPLEMENTED
PROSPECTUS WAS ISSUED OR AT THE CLOSING TIME, INCLUDED OR INCLUDES AN UNTRUE
STATEMENT OF A MATERIAL FACT OR OMITTED OR OMITS TO STATE A MATERIAL FACT
NECESSARY IN ORDER TO MAKE THE STATEMENTS THEREIN, IN THE LIGHT OF THE
CIRCUMSTANCES UNDER WHICH THEY WERE MADE, NOT MISLEADING.
IN RENDERING OPINIONS SET FORTH ABOVE WITH RESPECT TO MATTERS CONCERNING
THE SUBSIDIARIES; SUCH COUNSEL MAY RELY (A) AS TO MATTERS INVOLVING THE
APPLICATION OF THE LAWS OF THE JURISDICTION OF INCORPORATION OR ORGANIZATION OF
EACH SUBSIDIARY, UPON THE OPINION OF COUNSEL TO EACH SUBSIDIARY (WHICH OPINION
SHALL BE DATED AND FURNISHED TO THE U.S. UNDERWRITERS AT THE CLOSING TIME, SHALL
BE SATISFACTORY IN FORM AND SUBSTANCE TO COUNSEL FOR THE U.S. UNDERWRITERS AND
SHALL EXPRESSLY STATE THAT THE U.S. UNDERWRITERS MAY RELY ON SUCH OPINION AS IF
IT WERE ADDRESSED TO THEM), PROVIDED THAT SUCH COUNSEL SHALL STATE IN THEIR
OPINION THAT THEY BELIEVE THAT THEY AND THE U.S. UNDERWRITERS ARE JUSTIFIED IN
RELYING UPON SUCH OPINION, AND (B), AS TO MATTERS OF FACT (BUT NOT AS TO LEGAL
CONCLUSIONS), TO THE EXTENT THEY DEEM PROPER, ON CERTIFICATES OF OFFICERS OF THE
COMPANY AND PUBLIC OFFICIALS. SUCH OPINION SHALL NOT STATE THAT IT IS TO BE
GOVERNED OR QUALIFIED BY, OR THAT IT IS OTHERWISE SUBJECT TO, ANY TREATISE,
WRITTEN POLICY OR OTHER DOCUMENT RELATING TO LEGAL OPINIONS, INCLUDING, WITHOUT
LIMITATION, THE LEGAL OPINION ACCORD OF THE ABA SECTION OF BUSINESS LAW (1991).
▇-▇
▇▇▇▇▇▇▇ ▇
▇, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated,
▇▇▇▇▇▇▇▇▇ & Company, Inc.
Bear, ▇▇▇▇▇▇▇ & Co. Inc.
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC
▇▇▇▇▇▇▇▇ Inc.
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Proposed Public Offering by Packaged Ice. Inc.
Dear Sirs:
The undersigned, a stockholder and/or an officer and/or director of
Packaged Ice, Inc., a Texas corporation (the "Company"), understands that
▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
("▇▇▇▇▇▇▇ ▇▇▇▇▇"), ▇▇▇▇▇▇▇▇▇ & Company, Inc.; Bear, ▇▇▇▇▇▇▇ & Co. Inc.;
NationsBanc ▇▇▇▇▇▇▇▇▇▇ Securities LLC and ▇▇▇▇▇▇▇▇ Inc. propose to enter into a
U.S. Purchase Agreement (the "U.S. Purchase Agreement") with the Company
providing for the public offering of shares (the "Securities") of the Company's
common stock, par value $.01 per share (the "Common Stock"). In recognition of
the benefit that such an offering will confer upon the undersigned as a
shareholder and an officer and/or director of the Company, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned agrees with each underwriter to be named in the
U.S. Purchase Agreement that, during a period of 180 days from the date of the
U.S. Purchase Agreement, the undersigned will not, without the prior written
consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, directly or indirectly, (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 for the sale of, or
otherwise dispose of or transfer any shares of the Company's Common Stock or any
securities convertible into or exchangeable or exercisable for Common Stock,
whether now owned or hereafter acquired by the undersigned or with respect to
which the undersigned has or hereafter acquires the power of disposition, or
file any registration statement under the Securities Act of 1933, as amended,
with respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock, whether
any such swap or transaction is to be settled by delivery of Common Stock or
other securities, in cash or otherwise.
Very truly yours,
Signature:___________________________
Print Name:__________________________
B-1