<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MAY 24, 1996
REGISTRATION NO. 333-4234
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------
AMENDMENT NO. 2
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
----------------
LANDRY'S SEAFOOD RESTAURANTS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE 1400 POST OAK BOULEVARD 76-0405386
(STATE OF INCORPORATION) SUITE 1010 (I.R.S. EMPLOYER
HOUSTON, TEXAS 77056 IDENTIFICATION NUMBER)
713/850-1010
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
TILMAN J. FERTITTA
CHAIRMAN OF THE BOARD,
PRESIDENT AND CHIEF EXECUTIVE OFFICER
LANDRY'S SEAFOOD RESTAURANTS, INC.
1400 POST OAK BOULEVARD, SUITE 1010
HOUSTON, TEXAS 77056
713/850-1010
(NAME, ADDRESS INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE,
OF AGENT FOR SERVICE)
----------------
COPIES OF ALL COMMUNICATIONS TO:
ARTHUR S. BERNER, ESQ. STEVEN L. SCHEINTHAL, ESQ. THOMAS P. MASON, ESQ.
WINSTEAD SECHREST & MINICK GENERAL COUNSEL ANDREWS & KURTH L.L.P.
P.C.
LANDRY'S SEAFOOD RESTAURANTS, INC. 4200 TEXAS COMMERCE
910 TRAVIS, SUITE 1700 1400 POST OAK BOULEVARD, TOWER
HOUSTON, TEXAS 77002 SUITE 1010 HOUSTON, TEXAS 77002
713/650-2729 HOUSTON, TEXAS 77056 713/220-4200
713/850-1010
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as
practicable after the effective date of this Registration Statement.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS
REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses of this offering will be paid by Landry's Seafood Restaurants,
Inc. (the "Registrant") and, exclusive of underwriting discounts and
commissions, are estimated as follows:
<TABLE>
<S> <C>
SEC registration fee............................................ $ 41,275
National Association of Securities Dealers filing fee........... 12,470
NASDAQ listing fee.............................................. 17,500
Printing including engraving of share certificate............... 100,000*
Legal fee and expenses.......................................... 75,000*
Accounting fees and expenses.................................... 60,000*
Blue Sky filing fees and expenses (including counsel fees)...... 20,000*
Transfer Agent and Registrar fees and expenses.................. 10,000*
Miscellaneous................................................... 163,755*
--------
Total......................................................... $500,000
========
</TABLE>
- --------
* Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Reference is made to Section 102(b)(7) of the Delaware General Corporation
Law (the "DGCL"), which enables a corporation in its original certificate of
incorporation or an amendment thereto to eliminate or limit the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of the director's fiduciary duty, except (i) for any breach
of the director's duty of loyalty to the corporation or its stockholders, (ii)
for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the
DGCL (providing for liability of directors for unlawful payment of dividends
or unlawful stock purchases or redemptions), or (iv) for any transaction from
which the director derived an improper personal benefit. The Registrant's
Certificate of Incorporation contains provisions permitted by Section
102(b)(7) of the DGCL.
The Company is incorporated under the laws of the State of Delaware. Section
145 of the DGCL ("Section 145") provides that a Delaware corporation may
indemnify any persons who are, or are threatened to be made, parties to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative (other than an action by or in the
right of such corporation), by reason of the fact that such person is or was
an officer, director, employee or agent of such corporation, or is or was
serving at the request of such corporation as a director, officer, employee or
agent of another corporation or enterprise. The indemnity may include expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement
actually and reasonably incurred by such person in connection with such
action, suit or proceeding, provided such person acted in good faith and in a
manner he reasonably believed to be in or not opposed to the corporation's
best interests and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that his conduct was unlawful. A Delaware
corporation may indemnify any persons who were or are parties or are
threatened to be made a party, to any threatened, pending or completed action
or suit by or in the right of the corporation by reason of the fact that such
person is or was a director, officer, employee or agent of such corporation,
or enterprise. The indemnity may include expenses (including attorneys' fees)
actually and reasonably incurred by such person in connection with the defense
or settlement of such action or suit, provided such person acted in good faith
and in a manner he reasonably believed to be in or not opposed to the
corporation's best interest except that no indemnification is permitted
without judicial approval if the officer is adjudged to be liable to the
corporation. Where an officer or director is successful on the merits or
otherwise in the defense of any action referred to above, the corporation must
indemnify him against the expenses which such officer or director has actually
and reasonably incurred.
II-1
<PAGE>
Article IX of the Company's Certificate of Incorporation provides that the
Company shall indemnify any person who was or is a party or is threatened to
be made a party to any threatened, pending, or completed action, suit or
proceeding, whether civil, criminal, administrative, or investigative (other
than an action by or in the right of the Company) by reason of the fact that
he is or was a director, officer, employee or agent of the Company, or is or
was serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise, against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement actually and reasonably incurred by him in
connection with such action, suit or proceeding if he acted in good faith and
in a manner he reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his conduct was unlawful. The
termination of any action, suit, or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person did not act in good faith and in
a manner which he reasonably believed to be in or not opposed to the best
interests of the Company, and, with respect to any criminal action or
proceeding, had reasonable cause to believe that his conduct was unlawful.
The Certificate of Incorporation further provides that the Company shall
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of
the Company to procure a judgment in its favor by reason of the fact that he
is or was a director, officer, employee or agent of the Company, or is or was
serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection with the defense or settlement of
such action or suit if he acted in good faith and in a manner he reasonably
believed to be in or not opposed to the best interests of the Company and
except that no indemnification shall be made in respect of any claim, issue,
or matter as to which such person shall have been adjudged to be liable to the
Company unless and only to the extent that the Delaware Court of Chancery or
the court in which such action or suit was brought shall determine upon
application that, despite the adjudication of liability but in view of all the
circumstances of the case, such person is fairly and reasonably entitled to
indemnify for such expenses which the Delaware Court of Chancery of such other
court shall deem proper.
The Certificate of Incorporation also provides that to the extent that a
director, officer, employee or agent of the Company has been successful on the
merits or otherwise in defense of any action, suit or proceeding referred to
above, or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
The Certificate of Incorporation further provides that any indemnification
under the above paragraphs (unless ordered by a court) shall be made by the
Company only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances because he has met the applicable standard of conduct set fort
in the above paragraph. Such determination shall be made (i) by the Board of
Directors by a majority vote of a quorum consisting of directors who were not
parties to such action, suit or proceeding, or (ii) if such a quorum is not
obtainable, or, even if obtainable, if a quorum of disinterested directors so
directs, by independent legal counsel in a written opinion, or (iii) by the
stockholders. Notwithstanding the foregoing, a director, officer, employee or
agent of the Company shall be able to contest any determination that the
director, officer, employee or agent has not met the applicable standard of
conduct set fort in the above paragraphs by petitioning a court of appropriate
jurisdiction.
The Certificate of Incorporation also provides that expenses (including
attorneys' fees) incurred by an officer or director in defending or settling
any civil, criminal, administrative or investigative action, suit or
proceeding may be paid by the Company in advance of the final disposition of
such action, suit or proceeding upon receipt of an undertaking by or on behalf
of such director or officer to repay such amount if it shall ultimately be
determined that he is not entitled to be indemnified by the Company as
authorized in these paragraphs. Such expenses incurred by other employees and
agents may be so paid upon such terms and conditions, if any, as the Board of
Directors deems appropriate.
II-2
<PAGE>
The Certificate of Incorporation further provides that the indemnification
and advancement of expenses provided by, or granted pursuant to, the other
sections of these paragraphs shall not be deemed exclusive of any other rights
to which those seeking indemnification or advancement of expenses may be
entitled under any Bylaw, agreement, vote of stockholders or disinterested
directors or otherwise, both as to action in his official capacity and as to
action in another capacity while holding such office.
The Certificate of Incorporation further provides that the Company shall
have the power to purchase and maintain insurance on behalf of any person who
is or was a director, officer, employee or agent of the Company, or is or was
serving at the request of the Company as a director, officer, employee or
agent of another corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against him and incurred by him in
any such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such liability under
the provisions of these paragraphs.
The indemnification and advancement of expenses provided by, or granted
pursuant to, the Certificate of Incorporation, unless otherwise provided when
authorized or ratified, continue as to a person who has ceased to be a
director, officer, employee or agent and shall inure to the benefit of the
heirs, executors and administrators of such a person.
Article VIII of the Company's Bylaws, requires the Company to indemnify the
Company's directors and officers to the extent permitted under the DGCL and
the Certificate of Incorporation.
The Company has entered into indemnification agreements with the Directors
and certain officers.
The foregoing discussion is qualified in its entirety by reference to the
DGCL and the Registrant's Certificate of Incorporation and By-Laws.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits.
Certain of the exhibits to this Registration Statement are hereby
incorporated by reference to the Company's Registration Statement on Form S-1
No. 33-65498 as filed with the Securities and Exchange Commission and all
amendments thereto with which they were filed as exhibits with the same
exhibit number in such Registration Statement. Such exhibits are denoted with
the letter "A". Exhibits denoted by * have been previously filed with this
Registration Statement. Exhibits denoted by "B" are incorporated by reference
to the Company's current report on Form 8-K dated April 26, 1996. Exhibits
denoted by ** are filed herewith.
<TABLE>
<CAPTION>
EXHIBIT
NO. EXHIBIT
------- -------
<C> <S>
**1 --Form of Underwriting Agreement.
2.1 --Form of Plan and Agreement of Corporate Restructuring--Pirogue -A-
2.2 --Form of Plan and Agreement of Corporate Restructuring -A-
2.3 --Agreement and Plan of Merger among the Registrant, Bayport
Restaurant Corp, Inc. and Landry's Acquisition, Inc. -B-
3.1 --Certificate of Incorporation of Landry's Seafood Restaurants, Inc.
as filed with the Delaware Secretary of State on June 23, 1993, as
amended -A-
3.2 --Bylaws of Landry's Seafood Restaurants, Inc. -A-
4 --Specimen Common Stock Certificate, $.01 par value of Landry's
Seafood Restaurants, Inc. -A-
*5 --Opinion of Winstead Sechrest & Minick P.C. regarding legality.
*10.1 --Agreement regarding credit facility among the Registrant, Bayport
Restaurant Group, Inc. et al. -B-
*10.2 --Loan Agreement between the Registrant and Bayport Restaurant Group,
Inc. -B-
*23.1 --Consent of Arthur Andersen LLP.
*23.2 --Consent of Grant Thornton LLP.
*23.3 --Consent of Winstead Sechrest & Minick P.C. (included in their
opinion filed as Exhibit 5).
*24 --Powers of Attorney.
</TABLE>
II-3
<PAGE>
(b) Financial Statement Schedules.
All schedules are omitted because the required information is included in
the Consolidated Financial Statements or the Notes thereto or is otherwise
inapplicable.
ITEM 17. UNDERTAKINGS
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 (the "Act") may be permitted to directors, officers and controlling
persons of the Registrant pursuant to the provisions described in Item 15
above, or otherwise, the Registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Act and is, therefore, unenforceable. In the event
that a claim for indemnification against such liabilities (other than the
payment by the Registrant of expenses incurred or paid by a director, officer
or controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification is against public
policy as expressed in the Act and will be governed by the final adjudication
of such issue.
The undersigned Registrant hereby undertakes to provide to the Underwriters
at the closing specified in the Underwriting Agreement certificates in such
denominations and registered in such names as required by the Underwriters to
permit prompt delivery to each purchaser.
The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the 1933 Act, the
information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 403A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the 1933 Act shall be deemed to be part of this registration statement
as of the time it was declared effective.
(2) For the purpose of determining any liability under the 1933 Act, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to the
initial bona fide offering thereof.
(3) For purposes of determining any liability under the Securities Act of
1933, each filing of the Registrant's annual report pursuant to Section 13(a)
or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated
by reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
II-4
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED IN THE CITY OF HOUSTON, STATE OF TEXAS, ON THE 24TH DAY OF MAY,
1996.
Landry's Seafood Restaurants, Inc.
/s/ Tilman J. Fertitta
By:__________________________________
Tilman J. Fertitta,
Chairman of the Board/President
and Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ Tilman J. Fertitta Chairman, President and May 24, 1996
____________________________________ Chief Executive Officer and
Tilman J. Fertitta Director (Principal
Executive Officer)
* Paul S. West Vice President, Principal May 24, 1996
____________________________________ Financial Officer,
Paul S. West Principal Accounting
Officer and Director
* E.A. Jaksa, Jr. Executive Vice President and May 24, 1996
____________________________________ Director
E.A. Jaksa, Jr.
* Steven L. Scheinthal Vice President, May 24, 1996
____________________________________ Administration, Secretary,
Steven L. Scheinthal General Counsel and
Director
* James E. Masucci Director May 24, 1996
____________________________________
James E. Masucci
* Joe Max Taylor Director May 24, 1996
____________________________________
Joe Max Taylor
/s/ Tilman J. Fertitta May 24, 1996
____________________________________
Tilman J. Fertitta
*Attorney-in-Fact
</TABLE>
II-5
<PAGE>
4,500,000 SHARES
LANDRY'S SEAFOOD RESTAURANTS, INC.
COMMON STOCK
UNDERWRITING AGREEMENT
----------------------
May ___, 1996
MONTGOMERY SECURITIES
J.C. BRADFORD & CO.
PIPER JAFFRAY INC.
As Representatives of the Several Underwriters
c/o MONTGOMERY SECURITIES
600 Montgomery Street
San Francisco, California 94111
Dear Sirs:
Section 1. Introductory. Landry's Seafood Restaurants, Inc., a Delaware
corporation (the "Company"), proposes to issue and sell 4,000,000 shares of its
authorized but unissued Common Stock (the "Common Stock") and Tilman J. Fertitta
(the "Selling Stockholder") proposes to sell an aggregate of 500,000 shares of
the Company's issued and outstanding Common Stock to the several underwriters
named in Schedule A annexed hereto (the "Underwriters"). Said aggregate of
4,500,000 shares are herein called the "Firm Common Shares." In addition, the
Company and the Selling Stockholder propose to grant to the Underwriters an
option to purchase up to an aggregate of 675,000 additional shares of Common
Stock (the "Optional Common Shares"), as provided in Section 5 hereof. The Firm
Common Shares and, to the extent such option is exercised, the Optional Common
Shares are hereinafter collectively referred to as the "Common Shares."
You have advised the Company and the Selling Stockholder that the
Underwriters propose to make a public offering of their respective portions of
the Common Shares on the effective date of the registration statement
hereinafter referred to, or as soon thereafter as in your judgment is advisable.
The Company and the Selling Stockholder hereby confirm their respective
agreements with respect to the purchase of the Common Shares by the Underwriters
as follows:
<PAGE>
Section 2. Representations and Warranties of the Company and the Selling
Stockholder. The Company and the Selling Stockholder represent and warrant to
the several Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-_______) with
respect to the Common Shares has been prepared by the Company in conformity with
the requirements of the Securities Act of 1933, as amended (the "Act"), and the
rules and regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder, and has been filed with the
Commission. The Company has prepared and has filed or proposes to file prior to
the effective date of such registration statement an amendment or amendments to
such registration statement, which amendment or amendments have been or will be
similarly prepared. There have been delivered to you two signed copies of such
registration statement and amendments, together with two copies of each exhibit
filed therewith. Conformed copies of such registration statement and amendments
(but without exhibits) and of the related preliminary prospectus have been
delivered to you in such reasonable quantities as you have requested. The
Company will next file with the Commission one of the following: (i) prior to
effectiveness of such registration statement, a further amendment thereto,
including the form of final prospectus, (ii) a final prospectus in accordance
with Rules 430A and 424(b) of the Rules and Regulations or (iii) a term sheet
(the "Term Sheet") as described in and in accordance with Rules 434 and 424(b)
of the Rules and Regulations. As filed, the final prospectus, if one is used,
or the Term Sheet and Preliminary Prospectus, if a final prospectus is not used,
shall include all Rules 430A Information (as hereinafter defined), and, except
to the extent that you shall agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the date and time
that this Agreement was executed and delivered by the parties hereto, or, to the
extent not completed at such date and time, shall contain only such specific
additional information and other changes (beyond that contained in the latest
Preliminary Prospectus) as the Company shall have previously advised you in
writing would be included or made therein.
The term "Registration Statement" as used in this Agreement shall mean such
registration statement at the time such registration statement becomes effective
and, in the event any post-effective amendment thereto becomes effective prior
to the First Closing Date (as hereinafter defined), shall also mean such
registration statement as so amended; provided, however, that such term shall
also include (i) all Rule 430A Information deemed to be included in such
registration statement at the time such registration statement becomes effective
as provided by Rule 430A of the Rules and Regulations and (ii) any registration
statement filed pursuant to 462(b) of the Rules and Regulations relating to the
Common Shares. The term "Preliminary Prospectus" as used in this agreement
shall mean any preliminary prospectus referred to in the preceding paragraph and
any preliminary prospectus included in the Registration Statement at the time it
becomes effective that omits Rule 430A Information. The term "Prospectus" as
used in this Agreement shall mean either (i) the prospectus relating to the
Common Shares in the form in which it is first filed with the Commission
pursuant to Rule 424(b) of the Rules and Regulations or, (ii) if a Term Sheet is
not used and no filing pursuant to Rule 424(b) of the Rules and Regulations is
required, shall mean the form of final prospectus included in the Registration
Statement at the time such registration statement becomes effective or (iii) if
a Term Sheet is used, the Term Sheet in the form in which it is first filed
2
<PAGE>
with the Commission pursuant to Rule 424(b) of the Rules and Regulations,
together with the Preliminary Prospectus included in the Registration Statement
at the time it becomes effective. The term "Rule 430A Information" as used in
this Agreement shall mean information with respect to the Common Shares and the
offering thereof permitted to be omitted from the Registration Statement when it
becomes effective pursuant to Rule 430A of the Rules and Regulations. Any
reference herein to any Preliminary Prospectus, the Prospectus or Registration
Statement shall be deemed to refer to and include the documents incorporated by
reference therein pursuant to Form S-3 under the Act, as of the date of such
Preliminary Prospectus, Prospectus or Registration Statement, as the case may
be.
(b) The Commission has not issued any order preventing or suspending the
use of any Preliminary Prospectus, and each Preliminary Prospectus has conformed
in all material respects to the requirements of the Act and the Rules and
Regulations and, as of its date, has not included any untrue statement of a
material fact or omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; and at the time the Registration Statement becomes
effective, and at all times subsequent thereto up to and including each Closing
Date hereinafter mentioned, the Registration Statement and the Prospectus, and
any amendments or supplements thereto, will contain all material statements and
information required to be included therein by the Act and the Rules and
Regulations and will in all material respects conform to the requirements of the
Act and the Rules and Regulations, and neither the Registration Statement nor
the Prospectus, nor any amendment or supplement thereto, will include any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
provided, however, no representation or warranty contained in this subsection
2(b) shall be applicable to information contained in or omitted from any
Preliminary Prospectus, the Registration Statement, the Prospectus or any such
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
specifically for use in the preparation thereof. The documents incorporated by
reference in the Prospectus, when they were filled with the Commission,
conformed in all material respects to the requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations of the Commission thereunder, and none of such documents 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.
(c) The Company does not own or control, directly or indirectly, any
corporation, association or other entity other than the subsidiaries listed (i)
in Exhibit 21 to the Company's Annual Report on Form 10-K for its most recent
fiscal year or (ii) on Schedule B hereto (the "subsidiaries"). The only
subsidiaries of the Company that would constitute "significant subsidiaries", as
such term is defined in Rule 1-02 of Regulation S-X of the Rules and
Regulations, are listed under the caption "Significant Subsidiaries" on Schedule
B attached hereto (such subsidiaries are referred to herein as the "Significant
Subsidiaries"). The Company and each of its subsidiaries other than Landry's
Management, L.P. (the "Corporate Subsidiaries") have been duly incorporated and
are validly existing as corporations in good standing under the laws of their
3
<PAGE>
respective jurisdictions of incorporation, with full power and authority
(corporate and other) to own and lease their properties and conduct their
respective businesses as described in the Registration Statement and the
Prospectus; Landry's Management L.P. (the "Partnership") has been duly
organized and is validly existing and in good standing as a limited partnership
under the laws of its jurisdiction of organization, with full power and
authority (partnership and other) to own and lease its properties and conduct
its business as described in the Registration Statement and the Prospectus; the
Company owns directly or indirectly (through one or more Corporate
Subsidiaries), all of the outstanding capital stock of its Corporate
Subsidiaries and all of the outstanding general and limited partner interests in
the Partnership, free and clear of all claims, liens, charges and encumbrances;
the Company and each of its subsidiaries are in possession of and operating in
compliance with all franchises, authorizations, licenses, permits, easements,
consents, certificates and orders material to the conduct of their respective
businesses, all of which are valid and in full force and effect; the Company and
each of its subsidiaries are duly qualified to do business and in good standing
as a foreign corporation or a foreign limited partnership, as applicable, in
each jurisdiction in which the ownership or leasing of properties or the conduct
of their respective businesses require such qualification, except for
jurisdictions in which the failure to so qualify would not have a material
adverse effect upon the Company and its subsidiaries, taken as a whole; and no
proceeding has been instituted in any such jurisdiction, revoking, limiting or
curtailing, or seeking to revoke, limit or curtail, such power and authority or
qualification.
(d) The Company has an authorized and outstanding capital stock as set
forth under the heading "Capitalization" in the Prospectus; the issued and
outstanding shares of Common Stock have been duly authorized and validly issued,
are fully paid and nonassessable, have been approved for quotation on the NASDAQ
National Market, have been issued in compliance with all federal and state
securities laws, were not issued in violation of or subject to any preemptive
rights or other rights to subscribe for or purchase securities, and conform to
the description thereof contained in the Prospectus. All issued and outstanding
shares of capital stock of the Corporate Subsidiaries of the Company have been
duly authorized and validly issued and are fully paid and nonassessable. All of
the outstanding general and limited partner interests in the Partnership have
been duly authorized and validly issued and are fully paid and nonassessable.
Except as disclosed in or contemplated by the Prospectus and the financial
statements of the Company, and the related notes thereto, included in the
Prospectus, neither the Company nor any subsidiary has outstanding any options
to purchase, or any preemptive rights or other rights to subscribe for or to
purchase, any securities or obligations convertible into, or any contracts or
commitments to issue or sell, shares of its capital stock or any such options,
rights, convertible securities or obligations. The description of the Company's
stock option plans, and other stock plans or arrangements, and the options or
other rights granted and exercised thereunder, set forth in the Prospectus
accurately and fairly presents the information required to be shown with respect
to such plans, arrangements, options and rights.
(e) The Common Shares to be sold by the Company have been duly authorized
and, when issued, delivered and paid for in the manner set forth in this
Agreement, will be duly authorized, validly issued, fully paid and
nonassessable, and will conform to the description thereof contained in the
Prospectus. No preemptive rights or other rights to subscribe for or purchase
exist
4
<PAGE>
with respect to the issuance and sale of the Common Shares by the Company
pursuant to this Agreement. No stockholder of the Company has any right which
has not been waived to require the Company to register the sale of any shares
owned by such stockholder under the Act in the public offering contemplated by
this Agreement. No further approval or authority of the stockholders or the
Board of Directors of the Company will be required for the transfer and sale of
the Common Shares to be sold by the Selling Stockholder or the issuance and sale
of the Common Shares to be sold by the Company as contemplated by this
Agreement.
(f) The Company has full legal right, power and authority to enter into
this Agreement and perform the transactions contemplated hereby. This Agreement
has been duly authorized, executed and delivered by the Company and constitutes
a valid and binding obligation of the Company in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other similar laws relating to or
affecting creditor rights generally or by general equitable principles and
except for indemnification provisions. The making and performance of this
Agreement by the Company and the consummation of the transactions herein
contemplated will not violate any provisions of the certificate of incorporation
or bylaws, or other organizational documents of the Company or any of its
subsidiaries, and will not conflict with, result in the breach or violation of,
or constitute, either by itself or upon notice or the passage of time or both, a
default under any agreement, mortgage, deed of trust, lease, franchise, license,
indenture, permit or other instrument to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries or
any of its respective properties may be bound or affected, any statute or any
authorization, judgment, decree, order, rule or regulation of any court or any
regulatory body, administrative agency or other governmental body applicable to
the Company or any of its subsidiaries or any of their respective properties.
No consent, approval, authorization or other order of any court, regulatory
body, administrative agency or other governmental body is required for the
execution and delivery of this Agreement or the consummation of the transactions
contemplated by this Agreement, except for compliance with the Act, the Blue Sky
laws applicable to the public offering of the Common Shares by the several
Underwriters and the clearance of such offering with the National Association of
Securities Dealers, Inc. (the "NASD").
(g) Arthur Andersen LLP, who have expressed their opinion with respect to
the audited financial statements of the Company, and related schedules, filed
with the Commission as a part of the Registration Statement and included in the
Prospectus and in the Registration Statement, are independent accountants as
required by the Act and the Rules and Regulations.
(h) The financial statements and schedules of the Company, and the related
notes thereto, included in the Registration Statement and the Prospectus present
fairly the financial position of the Company as of the respective dates of such
financial statements and schedules, and the results of operations and changes in
financial position of the Company for the respective periods covered thereby.
Such statements, schedules and related notes have been prepared in accordance
with generally accepted accounting principles applied on a consistent basis as
certified by the independent accountants named in subsection 2(g). No other
financial statements or schedules are required to
5
<PAGE>
be included in the Registration Statement. The selected financial data set forth
in the Prospectus under the captions "Capitalization" and "Selected Consolidated
Financial Information" fairly present the information set forth therein on the
basis stated in the Registration Statement. The pro forma financial information
set forth in the Prospectus has been prepared in accordance with the Rules and
Regulations related to pro forma financial information, the assumptions used in
the preparation thereof are reasonable and the adjustments used therein are
appropriate to give effect to the transactions that form the basis for such pro
forma adjustments.
(i) Except as disclosed in the Prospectus, and except as to defaults which
individually or in the aggregate would not be material to the Company, neither
the Company nor any of its subsidiaries is in violation or default of any
provision of its certificate of incorporation or bylaws, or other organizational
documents, or is in breach of or default with respect to any provision of any
agreement, judgment, decree, order, mortgage, deed of trust, lease, franchise,
license, indenture, permit or other instrument to which it is a party or by
which or any of its properties are bound; and there does not exist any state of
facts which constitutes an event of default on the part of the Company or any
such subsidiary as defined in such documents or which, with notice or lapse of
time or both, would constitute such an event of default.
(j) There are no contracts or other documents required to be described in
the Registration Statement or to be filed as exhibits to the Registration
Statement by the Act, or by the Rules and Regulations which have not been
described or filed as required. The contracts so described in the Prospectus
are in full force and effect on the date hereof, and neither the Company nor any
of its subsidiaries, nor to the best of the Company's knowledge, any other party
is in breach of or default under any of such contracts.
(k) There are no legal or governmental actions, suits or proceedings
pending or, to the best of the Company's knowledge, threatened to which the
Company or any of its subsidiaries is or may be a party or of which property
owned or leased by the Company or any of its subsidiaries is or may be the
subject, or related to environmental or discrimination matters, which actions,
suits or proceedings might, individually or in the aggregate, prevent or
adversely affect the transactions contemplated by this Agreement or result in a
material adverse change in the condition (financial or otherwise), properties,
business, results of operations or prospects of the Company and its
subsidiaries; and no labor disturbance by the employees of the Company or any of
its subsidiaries exists or is imminent which might be expected to affect
adversely such condition, properties, business, results of operations or
prospects. Neither the Company nor any of its subsidiaries is a party or
subject to the provisions of any material injunction, judgment, decree or order
of any court, regulatory body, administrative agency or other governmental body.
(l) The Company or the applicable subsidiary has good and defensible title
to all the properties and assets reflected as owned in the financial statements
hereinabove described (or elsewhere in the Prospectus), subject to no lien,
mortgage, pledge, charge or encumbrance of any kind, except (i) those, if any,
reflected in such financial statements (or elsewhere in the Prospectus), or (ii)
those which are not material in amount and do not adversely affect the use made
and proposed
6
<PAGE>
to be made of such property by the Company and its subsidiaries. The Company or
the applicable subsidiary holds its leased properties under valid and binding
leases, with such exceptions as are not materially significant in relation to
the business of the Company. Except as disclosed in the Prospectus, the Company
owns or leases all such properties as are necessary to its operations as now
conducted or as proposed to be conducted.
(m) Since the respective dates as of which information is given in the
Registration Statement and Prospectus, and except as described in or
specifically contemplated by the Prospectus: (i) the Company and its
subsidiaries have not incurred any material liabilities or obligations,
indirect, direct or contingent, or entered into any material verbal or written
agreement or other transaction which is not in the ordinary course of business
or which could result in a material reduction in the future earnings of the
Company and its subsidiaries, taken as a whole; (ii) the Company and its
subsidiaries have not sustained any material loss or interference with their
respective businesses or properties from fire, flood, windstorm, accident or
other calamity, whether or not covered by insurance; (iii) the Company has not
paid or declared any dividends or other distributions with respect to its
capital stock and the Company and its subsidiaries are not in default in the
payment of principal or interest on any outstanding debt obligations; (iv) there
has not been any change in the capital stock (other than upon the sale of the
Common Shares hereunder) or indebtedness material to the Company and its
subsidiaries (other than in the ordinary course of business); and (v) there has
not been any material adverse change in the condition (financial or otherwise),
business, properties, results of operations or prospects of the Company and its
subsidiaries, taken as a whole.
(n) Except as disclosed in or specifically contemplated by the Prospectus,
the Company and its subsidiaries have sufficient trademarks, trade names, patent
rights, copyrights, licenses, approvals and governmental authorizations to
conduct their businesses as now conducted; the expiration of any trademarks,
trade names, patent rights, copyrights, licenses, approvals or governmental
authorizations would not have a material adverse effect on the condition
(financial or otherwise), business, results of operations or prospects of the
Company or its subsidiaries taken as a whole; and the Company has no knowledge
of any infringement by it or its subsidiaries of trademark, trade name rights,
patent rights, copyrights, licenses, trade secret or other similar rights of
others, and there is no claim being made against the Company or its subsidiaries
regarding trademark, trade name, patent, copyright, license, trade secret or
other infringement which could have a material adverse effect on the condition
(financial or otherwise), business, results of operations or prospects of the
Company and its subsidiaries, taken as a whole.
(o) The Company has not been advised, and has no reason to believe, that
either it or any of its subsidiaries is not conducting business in compliance
with all applicable laws, rules and regulations of the jurisdictions in which it
is conducting business, including, without limitation, all applicable local,
state and federal environmental laws and regulations; except where failure to be
so in compliance would not materially adversely affect the condition (financial
or otherwise), business, results of operations or prospects of the Company and
its subsidiaries, taken as a whole.
7
<PAGE>
(p) All United States federal income tax returns of the Company and its
subsidiaries required by law to be filed have been filed (except for the federal
income tax returns for the Company and its subsidiaries for the year ended
December 31, 1995 with respect to which the Company has filed for extensions as
permitted by law) and all taxes shown by such returns or otherwise assessed,
which are due and payable, have been paid; each of the Company and the
subsidiaries has filed all other tax returns that are required to have been
filed by it pursuant to applicable foreign, state, local or other law, except
insofar as the failure to file such returns would not have a material adverse
effect on the condition (financial or otherwise), business, prospects or results
of operations of the Company and its subsidiaries, taken as a whole, and have
paid all taxes due pursuant to such returns or pursuant to any assessment
received by the Company and the subsidiaries, except for such taxes, if any, as
are being contested in good faith and as to which adequate reserves have been
provided; the charges, accruals and reserves on the books of the Company and the
subsidiaries in respect of any tax liability for any years not finally
determined are adequate to meet any assessments or re-assessments for additional
tax for any years not finally determined, except to the extent of any inadequacy
that would not have a material adverse effect on the condition (financial or
otherwise), business, prospects or results of operations of the Company and its
subsidiaries, taken as a whole.
(q) Neither the Company nor any of its subsidiaries are, or on the First
Closing Date or Second Closing Date will be, an "investment company" or a
company "controlled" by an "investment company" as defined under the Investment
Company Act of 1940, as amended, and the rules and regulations promulgated by
the Commission thereunder (collectively, the "Investment Company Act").
(r) The Company has not distributed and will not distribute prior to the
First Closing Date any offering material in connection with the offering and
sale of the Common Shares other than the Prospectus, the Registration Statement
and the other materials permitted by the Act.
(s) Each of the Company and its subsidiaries maintains insurance of the
types and in the amounts generally deemed adequate for its business, including,
but not limited to, insurance covering real and personal property owned or
leased by the Company and its subsidiaries against theft, damage, destruction,
acts of vandalism and all other risks customarily insured against, all of which
insurance is in full force and effect.
(t) Neither the Company nor any of its subsidiaries has at any time during
the last five years (i) made any unlawful contribution to any candidate for
foreign office, or failed to disclose fully any contribution in violation of law
or (ii) made any payment to any federal or state governmental officer or
official, or other person charged with similar public or quasi-public duties,
other than payments required or permitted by the laws of the United States or of
any jurisdiction thereof.
8
<PAGE>
(u) The Company has not taken and will not take, directly or indirectly,
any action designed to or that might be reasonably expected to cause or result
in stabilization or manipulation of the price of the Common Stock to facilitate
the sale or resale of the Common Shares.
(v) The Company is eligible to use a Registration Statement on Form S-3
under the Act and the Rules and Regulations thereunder for purposes of
registering the Common Shares under the Act.
(w) To the best of the Company's knowledge, neither the Company nor any of
its affiliates is currently doing business with the government of Cuba or with
any person or affiliate located in Cuba.
(x) The Company has full legal right, power and authority to enter into the
Agreement and Plan of Merger among the Company, Landry's Acquisition, Inc. and
Bayport Restaurant Group, Inc. ("Bayport") dated as of April 18, 1996 (the
"Merger Agreement"), the Agreement Regarding Credit Facility among the Company,
The First National Bank of Boston (for itself and as agent), Capital Bank,
Bayport, Crab House, Inc., Capt. Crab's Take-Away of 79th Street, Inc., Take-
Away King Shopping Plaza, Inc. and Cryotech Industries of North Carolina, Inc.
dated as of April 18, 1996 (the "Agreement Regarding Credit Facility") and the
Loan Agreement among the Company, Bayport and Crab House, Inc. dated as of April
18, 1996 (the "Loan Agreement") and perform the transactions contemplated
thereby. Each of the Merger Agreement, the Agreement Regarding Credit Facility
and Loan Agreement (collectively, the "Bayport Agreements") has been duly
authorized, executed and delivered by the Company and constitutes a valid and
binding obligation of the Company in accordance with its terms, except as
enforcement may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws relating to or affecting
creditor rights generally or by general equitable principles and except for
indemnification provisions. None of the execution, delivery or performance of
any of the Bayport Agreements by the Company nor the consummation of the
transactions therein contemplated did nor will violate any provisions of the
certificate of incorporation or bylaws, or other organizational documents, of
the Company or any of its subsidiaries, and none of the execution, delivery or
performance of any of the Bayport Agreements by the Company nor the consummation
of the transactions therein contemplated did nor will conflict with, result in
the breach or violation of, or constitute, either by itself or upon notice or
the passage of time or both, a default under any agreement, mortgage, deed of
trust, lease, franchise, license, indenture, permit or other instrument to which
the Company or any of its subsidiaries is a party or by which the Company or any
of its subsidiaries or any of its respective properties may be bound or
affected, any statute or any authorization, judgment, decree, order, rule or
regulation of any court or any regulatory body, administrative agency or other
governmental body applicable to the Company or any of its subsidiaries or any of
their respective properties. No consent, approval, authorization or other order
of any court, regulatory body, administrative agency or other governmental body
is required for the execution and delivery of any of the Bayport Agreements or
the consummation of the transactions contemplated thereby, except for compliance
with the Act, Blue Sky laws and the Hart-Scott-Rodino Antitrust Improvements Act
(the "HSR Act").
9
<PAGE>
(y) Grant Thornton LLP, who have expressed their opinion with respect to
the audited financial statements of Bayport incorporated by reference in the
Prospectus and in the Registration Statement, are independent accountants as
required by the Act and the Rules and Regulations.
(z) The financial statements and schedules of Bayport, and the related
notes thereto, incorporated by reference in the Registration Statement and the
Prospectus (the "Bayport Financial Statements") present fairly the financial
position of Bayport as of the respective dates of such financial statements and
schedules, and the results of operations and changes in financial position of
the Company for the respective periods covered thereby. Such statements,
schedules and related notes have been prepared in accordance with generally
accepted accounting principles applied on a consistent basis as certified by the
independent accountants named in subsection 2(y).
(aa) Bayport and each of its subsidiaries have been duly incorporated and
are validly existing as corporations in good standing under the laws of their
respective jurisdictions of incorporation, with full power and authority
(corporate and other) to own and lease their properties and conduct their
respective businesses as described in the Registration Statement and the
Prospectus under the caption "Business - Business of Bayport"; Bayport and each
of its subsidiaries are in possession of and operating in compliance with all
franchises, authorizations, licenses, permits, easements, consents, certificates
and orders material to the conduct of their respective businesses, all of which
are valid and in full force and effect; Bayport and each of its subsidiaries are
duly qualified to do business and in good standing as a foreign corporation or a
foreign limited partnership, as applicable, in each jurisdiction in which the
ownership or leasing of properties or the conduct of their respective businesses
require such qualification, except for jurisdictions in which the failure to so
qualify would not have a material adverse effect upon Bayport and its
subsidiaries, taken as a whole; and no proceeding has been instituted in any
such jurisdiction, revoking, limiting or curtailing, or seeking to revoke, limit
or curtail, such power and authority or qualification.
(bb) Bayport has an authorized and outstanding capital stock as set forth
in the latest balance sheet and related notes thereto included in the Bayport
Financial Statements incorporated by reference in the Prospectus; the issued and
outstanding shares of capital stock of Bayport have been duly authorized and
validly issued, are fully paid and nonassessable, have been issued in compliance
with all federal and state securities laws and were not issued in violation of
or subject to any preemptive rights or other rights to subscribe for or purchase
securities. All issued and outstanding shares of capital stock of the
subsidiaries of Bayport have been duly authorized and validly issued and are
fully paid and nonassessable and are owned beneficially by Bayport free and
clear of all liens, encumbrances, equities, claims, security interests, voting
trusts or other defects of title whatsoever. Except as disclosed in the
Prospectus or the latest balance sheet and related notes thereto included in the
Bayport Financial Statements, neither Bayport any subsidiary of Bayport has
outstanding any options to purchase, or any preemptive rights or other rights to
subscribe for or to purchase, any securities or obligations convertible into, or
any contracts or commitments to issue or sell, shares of its capital stock or
any such options, rights, convertible securities or obligations. The description
of Bayport's stock option plans, and other stock plans or arrangements, and the
options or other rights granted and exercised thereunder, set forth in the
latest balance sheet and 11
10
<PAGE>
related notes thereto included in the Bayport Financial Statements accurately
and fairly presents the information required to be shown with respect to such
plans, arrangements, options and rights.
(cc) Except as to defaults which individually or in the aggregate would not
be material to Bayport, neither Bayport nor any of its subsidiaries is in
violation or default of any provision of its certificate of incorporation,
bylaws or other organizational documents, or is in breach of or default with
respect to any provision of any agreement, judgment, decree, order, mortgage,
deed of trust, lease, franchise, license, indenture, permit or other instrument
to which it is a party or by which or any of its properties are bound; and there
does not exist any state of facts which constitutes an event of default on the
part of Bayport or any such subsidiary as defined in such documents or which,
with notice or lapse of time or both, would constitute such an event of default.
(dd) There are no legal or governmental actions, suits or proceedings
pending or, to the best of the Company's knowledge, threatened to which Bayport
or any of its subsidiaries is or may be a party or of which property owned or
leased by Bayport or any of its subsidiaries is or may be the subject, or
related to environmental or discrimination matters, which actions, suits or
proceedings might, individually or in the aggregate, prevent or adversely affect
the transactions contemplated by this Agreement or result in a material adverse
change in the condition (financial or otherwise), properties, business, results
of operations or prospects of Bayport and its subsidiaries; and no labor
disturbance by the employees of Bayport or any of its subsidiaries exists or is
imminent which might be expected to affect adversely such condition, properties,
business, results of operations or prospects. Neither Bayport nor any of its
subsidiaries is a party or subject to the provisions of any material injunction,
judgment, decree or order of any court, regulatory body, administrative agency
or other governmental body.
(ee) Bayport or the applicable subsidiary has good and defensible title to
all the properties and assets reflected as owned in the latest balance sheet
included in the Bayport Financial Statements, subject to no lien, mortgage,
pledge, charge or encumbrance of any kind, except (i) those, if any, reflected
in such financial statements, or (ii) those which are not material in amount and
do not adversely affect the use made and proposed to be made of such property by
Bayport and its subsidiaries. Bayport or the applicable subsidiary holds its
leased properties under valid and binding leases, with such exceptions as are
not materially significant in relation to the business of Bayport. Bayport owns
or leases all such properties as are necessary to its operations as now
conducted or as proposed to be conducted.
(ff) Since the respective dates as of which information is given in the
Registration Statement and Prospectus, and except as described in or
specifically contemplated by the Prospectus: (i) Bayport and its subsidiaries
have not incurred any material liabilities or obligations, indirect, direct or
contingent, or entered into any material verbal or written agreement or other
transaction which is not in the ordinary course of business or which could
result in a material reduction in the future earnings of Bayport and its
subsidiaries, taken as a whole; (ii) Bayport and its subsidiaries have not
sustained any material loss or interference with their respective businesses or
properties from fire, flood, windstorm, accident or other calamity, whether or
not covered by insurance; (iii)
11
<PAGE>
Bayport has not paid or declared any dividends or other distributions with
respect to its capital stock and Bayport and its subsidiaries are not in default
in the payment of principal or interest on any outstanding debt obligations;
(iv) there has not been any change in the capital stock or indebtedness material
to Bayport and its subsidiaries (other than in the ordinary course of business);
and (v) there has not been any material adverse change in the condition
(financial or otherwise), business, properties, results of operations or
prospects of Bayport and its subsidiaries, taken as a whole.
(gg) The Company has not been advised, and has no reason to believe, that
either Bayport or any of its subsidiaries is not conducting business in
compliance with all applicable laws, rules and regulations of the jurisdictions
in which it is conducting business, including, without limitation, all
applicable local, state and federal environmental laws and regulations; except
where failure to be so in compliance would not materially adversely affect the
condition (financial or otherwise), business, results of operations or prospects
of Bayport and its subsidiaries, taken as a whole.
(hh) Bayport has full right, power and authority to enter into each of the
Bayport Agreements; each of the Bayport Agreements has been duly and validly
authorized by all necessary corporate action by Bayport (except for obtaining
the approval of the transactions contemplated by the Merger Agreement by its
stockholders in accordance with the applicable provisions of the law of its
state of incorporation, its certificate of incorporation and its bylaws), has
been duly and validly executed and delivered by and on behalf of Bayport, and is
a valid and binding agreement of Bayport in accordance with its terms, except as
enforceability may be limited by general equitable principles, bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally; and no approval, authorization, order, consent, registration, filing,
qualification, license or permit of or with any court, regulatory,
administrative or other governmental body is required for the execution and
delivery of any of the Bayport Agreements by Bayport or the consummation of the
transactions contemplated thereby, except for compliance with the Act, United
States and Canadian Blue Sky laws and the HSR Act;
(ii) Neither the execution or performance of any of the Bayport Agreements
nor the consummation of the transactions therein contemplated did or will
conflict with, result in the breach of, or constitute, either by itself or upon
notice or the passage of time or both, a default under, any agreement, mortgage,
deed of trust, lease, franchise, license, indenture, permit or other instrument
to which Bayport or any of its subsidiaries is a party or by which Bayport or
any of its subsidiaries or any of its or their property may be bound which is
material to Bayport and its subsidiaries, or violate any of the provisions of
the certificate of incorporation or bylaws, or other organizational documents,
of Bayport or any of its subsidiaries or violate any statute, judgment, decree,
order, rule or regulation of any court or governmental body having jurisdiction
over Bayport or any of its subsidiaries or any of its or their property.
(jj) To the best knowledge of the Company, after due inquiry, the
representations and warranties of Bayport set forth in the Merger Agreement are
true and correct in all material respects.
12
<PAGE>
(kk) The Company is not aware of any event, condition or state of facts
that would reasonably cause the Company to believe that any condition to the
consummation of the transactions contemplated by the Merger Agreement will not
be satisfied.
Section 3. Representations, Warranties and Covenants of the Selling
Stockholder.
(a) The Selling Stockholder represents and warrants to, and agrees with,
the several Underwriters that:
(i) The Selling Stockholder has, and on the First Closing Date and the
Second Closing Date hereinafter mentioned, will have, good and marketable title
to the Common Shares proposed to be sold by the Selling Stockholder hereunder on
such Closing Date and full right, power and authority to enter into this
Agreement and to sell, assign, transfer and deliver such Common Shares
hereunder, free and clear of all voting trust arrangements, liens, encumbrances,
equities, security interests, restrictions and claims whatsoever; and upon
delivery of and payment for such Common Shares hereunder, the Underwriters will
acquire good and marketable title thereto, free and clear of all liens,
encumbrances, equities, claims, restrictions, security interests, voting trusts
or other defects of title whatsoever.
(ii) The performance of this Agreement and the consummation of the
transactions contemplated hereby will not result in a breach or violation by the
Selling Stockholder of any of the terms or provisions of, or constitute a
default by the Selling Stockholder under, any indenture, mortgage, deed of
trust, trust (constructive or other), loan agreement, lease, franchise, license
or other agreement or instrument to which the Selling Stockholder is a party or
by which the Selling Stockholder or any of his properties is bound, any statute,
or any judgment, decree, order, rule or regulation of any court or governmental
agency or body applicable to the Selling Stockholder or any of his properties.
(iii) The Selling Stockholder has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which might
reasonably be expected to cause or result in stabilization or manipulation of
the price of any security of the Company to facilitate the sale or resale of the
Common Shares.
(b) The Selling Stockholder agrees with the Company and the Underwriters
not to offer to sell, sell or contract to sell or otherwise dispose of any
shares of Common Stock or securities convertible into or exchangeable for any
shares of Common Stock, for a period of 90 days after the date of the Prospectus
without the prior written consent of Montgomery Securities.
Section 4. Representations and Warranties of the Underwriters. The
Underwriters, represent and warrant to the Company and to the Selling
Stockholder that the information set forth (i) on the cover page of the
Prospectus with respect to price, underwriting discounts and commissions and
terms of the offering and (ii) under "Underwriting" in the Prospectus was
furnished to the Company by and on behalf of the Underwriters for use in
connection with the preparation of
13
<PAGE>
the Registration Statement and the Prospectus and is correct in all material
respects. The Company and the Selling Stockholder acknowledge that this
information is the sole information furnished to the Company by the Underwriters
for inclusion in the Registration Statement, any Preliminary Prospectus, any
Prospectus, or any amendment or supplement thereto.
Section 5. Purchase, Sale and Delivery of Common Shares. On the basis of
the representations, warranties and agreements herein contained, but subject to
the terms and conditions herein set forth, (i) the Company agrees to issue and
sell to the Underwriters 4,000,000 of the Firm Common Shares, and (ii) the
Selling Stockholder agrees to sell to the Underwriters 500,000 of the Firm
Common Shares. The Underwriters agree, severally and not jointly, to purchase
from the Company and the Selling Stockholder, respectively, the number of Firm
Common Shares described below. The purchase price per share to be paid by the
several Underwriters to the Company and to the Selling Stockholder,
respectively, shall be $_____ per share.
The obligation of each Underwriter to the Company shall be to purchase from
the Company that number of full shares which (as nearly as practicable, as
determined by you) bears to 4,000,000 the same proportion as the number of
shares set forth opposite the name of such Underwriter in Schedule A hereto
bears to the total number of Firm Common Shares. The obligation of each
Underwriter to the Selling Stockholder shall be to purchase from the Selling
Stockholder that number of full shares which (as nearly as practicable, as
determined by you) bears to 500,000 the same proportion as the number of shares
set forth opposite the name of such Underwriter in Schedule A hereto bears to
the total number of Firm Common Shares.
Delivery of certificates for the Firm Common Shares to be purchased by the
Underwriters and payment therefor shall be made at the offices of Montgomery
Securities, 600 Montgomery Street, San Francisco, California (or such other
place as may be agreed upon by the Company and the Representatives) at such time
and date, not later than the third (or, if the Firm Common Shares are priced, as
contemplated by Rule 15c6-1(c) under the Securities Exchange Act of 1934, after
4:30 P.M. Washington D.C. time, the fourth) full business day following the
first date that any of the Common Shares are released by you for sale to the
public, as you shall designate by at least 48 hours prior notice to the Company
(or at such other time and date, not later than one week after such third or
fourth, as the case may be, full business day as may be agreed upon by the
Company and the Representatives (the "First Closing Date"); provided, however,
that if the Prospectus is at any time prior to the First Closing Date
recirculated to the public, the First Closing Date shall occur upon the later of
the third or fourth, as the case may be, full business day following the first
date that any of the Common Shares are released by you for sale to the public or
the date that is 48 hours after the date that the Prospectus has been so
recirculated.
Delivery of certificates for the Firm Common Shares shall be made by or on
behalf of the Company and the Selling Stockholder to you, for the respective
accounts of the Underwriters, with respect to the Firm Common Shares to be sold
by the Company and by the Selling Stockholder against payment by you, for the
accounts of the several Underwriters, of the purchase price therefor by wire
transfer of federal funds to an account designated by the Company and an account
14
<PAGE>
designated by the Selling Stockholder in proportion to the number of Firm Common
Shares to be sold by the Company and the Selling Stockholder, respectively. The
certificates for the Firm Common Shares shall be registered in such names and
denominations as you shall have requested at least two full business days prior
to the First Closing Date, and shall be made available for checking and
packaging on the business day preceding the First Closing Date at a location in
New York, New York, as may be designated by you. Time shall be of the essence,
and delivery at the time and place specified in this Agreement is a further
condition to the obligations of the Underwriters.
In addition, on the basis of the representations, warranties and agreements
herein contained, but subject to the terms and conditions herein set forth, the
Company and the Selling Stockholder hereby grant an option to the several
Underwriters to purchase, severally and not jointly, up to an aggregate of
675,000 Optional Common Shares, as provided more fully below, at the purchase
price per share to be paid for the Firm Common Shares, for use solely in
covering any over allotments made by you in the sale and distribution of the
Firm Common Shares. In the event that such option is exercised in full, (i) the
Company shall sell _________ Optional Common Shares and (ii) the Selling
Stockholder shall sell _______ Optional Common Shares. In the event that such
option is exercised for less than 675,000 Optional Common Shares, the number of
Optional Common Shares to be sold by the Company and the Selling Stockholder
shall be proportionately reduced. The option granted hereunder may be exercised
at any time (but not more than once) within 30 days after the first date that
any of the Common Shares are released by you for sale to the public, upon notice
by you to the Company and the Selling Stockholder setting forth the aggregate
number of Optional Common Shares as to which the Underwriters are exercising the
option, the names and denominations in which the certificates for such shares
are to be registered and the time and place at which such certificates will be
delivered. Such time of delivery (which may not be earlier than the First
Closing Date), being herein referred to as the "Second Closing Date," shall be
determined by you, but if at any time other than the First Closing Date shall
not be earlier than three nor later than five full business days after delivery
of such notice of exercise. The number of Optional Common Shares to be
purchased by each Underwriter shall be determined by multiplying the number of
Optional Common Shares to be sold by the Company and the Selling Stockholder
pursuant to such notice of exercise by a fraction, the numerator of which is the
number of Firm Common Shares to be purchased by such Underwriter as set forth
opposite its name in Schedule A and the denominator of which is 4,000,000
(subject to such adjustments to eliminate any fractional share purchases as you
in your discretion may make). Certificates for the Optional Common Shares will
be made available for checking and packaging on the business day preceding the
Second Closing Date at a location in New York, New York, as may be designated by
you. The manner of payment for and delivery of the Optional Common Shares shall
be the same as for the Firm Common Shares purchased from the Company and the
Selling Stockholder as specified in the two preceding paragraphs. At any time
before lapse of the option, you may cancel such option by giving written notice
of such cancellation to the Company and the Selling Stockholder. If the option
is canceled or expires unexercised in whole or in part, the Company will
deregister under the Act the number of Optional Common Shares as to which the
option has not been exercised.
15
<PAGE>
You have advised the Company and the Selling Stockholder that each
Underwriter has authorized you to accept delivery of its Common Shares, to make
payment and to receipt therefor. You, individually and not as the
Representatives of the Underwriters, may (but shall not be obligated to) make
payment for any Common Shares to be purchased by any Underwriter whose funds
shall not have been received by you by the First Closing Date or the Second
Closing Date, as the case may be, for the account of such Underwriter, but any
such payment shall not relieve such Underwriter from any of its obligations
under this Agreement.
Subject to the terms and conditions hereof, the Underwriters propose to
make a public offering of their respective portions of the Common Shares as soon
after the effective date of the Registration Statement as in the judgment of the
Underwriters is advisable and at the public offering price set forth on the
cover page of and on the terms set forth in the final prospectus, if one is
used, or on the first page of the Term Sheet, if one is used.
Section 6. Covenants of the Company. The Company covenants and agrees
that:
(a) The Company will use its best efforts to cause the Registration
Statement and any amendment thereof, if not effective at the time and date that
this Agreement is executed and delivered by the parties hereto, to become
effective. If the Registration Statement has become or becomes effective
pursuant to Rule 430A of the Rules and Regulations, or the filing of the
Prospectus is otherwise required under Rule 424(b) of the Rules and Regulations,
the Company will file the Prospectus, properly completed, pursuant to the
applicable paragraph of Rule 424(b) of the Rules and Regulations within the time
period prescribed and will provide evidence satisfactory to you of such timely
filing. The Company will promptly advise you in writing (i) of the receipt of
any comments of the Commission, (ii) of any request of the Commission for
amendment of or supplement to the Registration Statement (either before or after
it becomes effective), any Preliminary Prospectus or the Prospectus or for
additional information, (iii) when the Registration Statement shall have become
effective and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the institution
of any proceedings for that purpose. If the Commission shall enter any such
stop order at any time, the Company will use its best efforts to obtain the
lifting of such order at the earliest possible moment. The Company will not
file any amendment or supplement to the Registration Statement (either before or
after it becomes effective), any Preliminary Prospectus or the Prospectus of
which you have not been furnished with a copy a reasonable time prior to such
filing or to which you reasonably object or which is not in compliance with the
Act and the Rules and Regulations.
(b) The Company will prepare and file with the Commission, promptly upon
your request, any amendments or supplements to the Registration Statement or the
Prospectus which in your judgment may be necessary or advisable to enable the
several Underwriters to continue the distribution of the Common Shares and will
use its best efforts to cause the same to become effective as promptly as
possible. The Company will fully and completely comply with the provisions of
Rule 430A of the Rules and Regulations with respect to information omitted from
the Registration Statement in reliance upon such Rule.
16
<PAGE>
(c) If at any time within the nine-month period referred to in Section
10(a)(3) of the Act during which a prospectus relating to the Common Shares is
required to be delivered under the Act any event occurs, as a result of which
the Prospectus, including any amendments or supplements, would include an untrue
statement of a material fact, or omit to state any material fact required to
be stated therein or necessary to make the statements therein not misleading, or
if it is necessary at any time to amend the Prospectus, including any amendments
or supplements, to comply with the Act or the Rules and Regulations, the Company
will promptly advise you thereof and will promptly prepare and file with the
Commission, at its own expense, an amendment or supplement which will correct
such statement or omission or an amendment or supplement which will effect such
compliance and will use its best efforts to cause the same to become effective
as soon as possible; and, in case any Underwriter is required to deliver a
prospectus after such nine-month period, the Company upon request, but at the
expense of such Underwriter, will promptly prepare such amendment or amendments
to the Registration Statement and such Prospectus or Prospectuses as may be
necessary to permit compliance with the requirements of Section 10(a)(3) of the
Act.
(d) As soon as practicable, but not later than 45 days after the end of the
first quarter ending after one year following the "effective date of the
Registration Statement" (as defined in Rule 158(c) of the Rules and
Regulations), the Company will make generally available to its security holders
an earnings statement (which need not be audited) covering a period of 12
consecutive months beginning after the effective date of the Registration
Statement which will satisfy the provisions of the last paragraph of Section
11(a) of the Act.
(e) During such period as a prospectus is required by law to be delivered
in connection with sales by an Underwriter or dealer, the Company, at its
expense, but only for the nine-month period referred to in Section 10(a)(3) of
the Act, will furnish to you and the Selling Stockholder or mail to your order
copies of the Registration Statement, the Prospectus, the Preliminary Prospectus
and all amendments and supplements to any such documents in each case as soon as
available and in such quantities as you and the Selling Stockholder may request,
for the purposes contemplated by the Act.
(f) The Company shall cooperate with you and your counsel in order to
qualify or register the Common Shares for sale under (or obtain exemptions from
the application of) the Blue Sky laws of such jurisdictions as you designate,
will comply with such laws and will continue such qualifications, registrations
and exemptions in effect so long as reasonably required for the distribution of
the Common Shares. The Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any such
jurisdiction where it is not presently qualified or where it would be subject to
taxation as a foreign corporation, nor shall the Company be required to escrow
any shares of capital stock of the Company. The Company will advise you
promptly of the suspension of the qualification or registration of (or any such
exemption relating to) the Common Shares for offering, sale or trading in any
jurisdiction or any initiation or threat of any proceeding for any such purpose,
and in the event of the issuance of any order suspending such qualification,
registration or exemption, the Company, with your cooperation, will use its best
efforts to obtain the withdrawal thereof.
17
<PAGE>
(g) During the period of five years hereafter or for so long as required by
law, if shorter, the Company will furnish to the Representatives and, upon
request of the Representatives, to each of the other Underwriters: (i) as soon
as practicable after the end of each fiscal year, copies of the
Annual Report of the Company containing the balance sheet of the Company as of
the close of such fiscal year and statements of income, stockholders' equity and
cash flows for the year then ended and the opinion thereon of the Company's
independent public accountants; (ii) as soon as practicable after the filing
thereof, copies of each proxy statement, Annual Report on Form 10-K, Quarterly
Report on Form 10-Q, Report on Form 8-K or other report filed by the Company
with the Commission, the NASD or any securities exchange; and (iii) as soon as
available, copies of any report or communication of the Company mailed generally
to holders of its Common Stock.
(h) During the period of 90 days after the first date that any of the
Common Shares are released by you for sale to the public, without the prior
written consent of either Montgomery Securities or each of the Representatives
(which consent may be withheld at the sole discretion of Montgomery Securities
or the Representatives, as the case may be), the Company will not issue, offer,
sell, grant options to purchase or otherwise dispose of any of the Company's
equity securities or any other securities convertible into or exchangeable with
its Common Stock or other equity security, except that Company may, without
consent, issue shares of Common Stock upon exercise of stock options outstanding
as of the date of the Prospectus and grant additional options under the
Company's 1993 Stock Option Plan, the Company's Nonqualified Formula Stock
Option Plan for Non-Employee Directors and any other stock option plan adopted
by the Board of Directors of the Company and approved by the stockholders of the
Company, in each case consistent with past practices.
(i) The Company will apply the net proceeds of the sale of the Common
Shares sold by it substantially in accordance with its statements under the
caption "Use of Proceeds" in the Prospectus.
(j) The Company (i) will use its best efforts to qualify or register its
Common Stock for sale in non-issuer transactions under, or obtain exemptions
from the application of, the Blue Sky laws of the State of California (and
thereby permit market making transactions and secondary trading in the Company's
Common Stock in California), (ii) will comply with such Blue Sky laws, and (iii)
will continue such qualifications, registrations and exemptions in effect for a
period of five years after the date hereof.
(k) The Company will file with the National Association of Securities
Dealers, Inc. all documents and notices required by the NASD of companies that
have issued securities that are traded in the over-the-counter market and
quotations of which are reported by the Nasdaq National Market.
You may, in your sole discretion, waive in writing the performance by the
Company of any one or more of the foregoing covenants or extend the item for
their performance.
18
<PAGE>
Section 7. Payment of Expenses. Whether or not the transactions
contemplated hereunder are consummated or this Agreement becomes effective or is
terminated, the Company agrees to pay all costs, fees and expenses of the
Company and, except as set forth below, of the Selling Stockholder incurred in
connection with the performance of their obligations hereunder and in connection
with the transactions contemplated hereby, including, without limiting the
generality of the foregoing, (i) all expenses incident to the issuance and
delivery of the Common Shares (including all costs of preparing stock
certificates), (ii) all fees and expenses of the registrar and transfer agent of
the Common Stock, (iii) all necessary issue, transfer and other stamp taxes in
connection with the issuance and sale of the Common Shares to the Underwriters,
(iv) all fees and expenses of the Company's counsel and the Company's
independent accountants, (v) all costs and expenses incurred in connection with
the preparation, printing, filing, shipping and distribution of the Registration
Statement, each Preliminary Prospectus and the Prospectus (including all
exhibits and financial statements) and all amendments and supplements provided
for herein, this Agreement, the Agreement Among Underwriters, the Selected
Dealers Agreement, the Underwriters' Questionnaire, the Underwriters' Power of
Attorney and the Blue Sky memorandum, (vi) all filing fees, attorneys' fees and
expenses incurred by the Company or the Underwriters in connection with
qualifying or registering (or obtaining exemptions from the qualification or
registration of) all or any part of the Common Shares for offer and sale under
the United States or Canadian Blue Sky laws, (vii) all filing fees, attorneys'
fees and expenses incurred by the Company or the Underwriters in connection with
compliance with the rules of the National Association of Securities Dealers,
Inc. ("NASD") in connection with the offering of the Common Shares, and (viii)
all other fees, costs and expenses referred to in Item 13 of the Registration
Statement. Except as provided in this Section 7, Section 9 and Section 11
hereof, the Underwriters shall pay all of their own expenses, including the fees
and disbursements of their counsel (excluding those relating to qualification,
registration or exemption under the United States or Canadian Blue Sky laws and
the Blue Sky memorandum referred to above). This Section 7 shall not affect any
agreements relating to the payment of expenses between the Company and the
Selling Stockholder.
The Selling Stockholder will pay (directly or by reimbursement) all fees
and expenses incident to the performance of his obligations under this Agreement
which are not otherwise specifically provided for herein, including but not
limited to (i) any fees and expenses of counsel for the Selling Stockholder; and
(ii) all expenses and taxes incident to the sale and delivery of the Common
Shares to be sold by the Selling Stockholder to the Underwriters hereunder.
Section 8. Conditions of the Obligations of the Underwriters. The
obligations of the several Underwriters to purchase and pay for the Firm Common
Shares on the First Closing Date and the Optional Common Shares on the Second
Closing Date shall be subject to the accuracy of the representations and
warranties on the part of the Company and the Selling Stockholder herein set
forth as of the date hereof and as of the First Closing Date or the Second
Closing Date, as the case may be, to the accuracy of the statements of Company
officers and the Selling Stockholder made pursuant to the provisions hereof, to
the performance by the Company and the Selling Stockholder of their respective
obligations hereunder, and to the following additional conditions:
19
<PAGE>
(a) The Registration Statement shall have become effective not later than
5:30 P.M., Washington, D.C. time, on the date of this Agreement, or at such
later time as shall have been consented to by you; if the filing of the
Prospectus, or any supplement thereto, is required pursuant to Rule 424(b) of
the Rules and Regulations, the Prospectus shall have been filed in the manner
and within the time period required by Rule 424(b) of the Rules and Regulations;
prior to such Closing Date, no stop order suspending the effectiveness of the
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or shall be pending or, to the knowledge of
the Company, the Selling Stockholder or the Underwriters, shall be contemplated
by the Commission; any request of the Commission for inclusion of additional
information in the Registration Statement, or otherwise, shall have been
complied with to the Underwriters' satisfaction; and prior to such Closing Date
there shall not have come to the attention of the Underwriters any facts that
would cause them to believe that the Prospectus, at the time it was required to
be delivered to a purchaser of the Common Shares, contained any untrue statement
of a material fact or omitted to state any material fact necessary in order to
make the statements therein, in light of the circumstances under which they were
made, not misleading.
(b) The Underwriters shall be satisfied that since the respective dates as
of which information is given in the Registration Statement and Prospectus, (i)
there shall not have been any change in the capital stock (other than upon the
sale of the Common Shares under this Agreement or pursuant to the exercise of
director or employee stock options outstanding as of the respective dates of the
Registration Statement or the Prospectus) of the Company or any of its
subsidiaries or any material change in the indebtedness (other than as
contemplated by the Prospectus) of the Company or any of its subsidiaries, (ii)
except as set forth or contemplated by the Registration Statement or the
Prospectus, no material verbal or written agreement or other transaction shall
have been entered into by the Company or any of its subsidiaries, which is not
in the ordinary course of business or which could result in a material reduction
in the future earnings of the Company and its subsidiaries, taken as a whole,
(iii) no loss or damage (whether or not insured) to the property of the Company
or any of its subsidiaries shall have been sustained which materially and
adversely affects the condition (financial or otherwise), business, results of
operations or prospects of the Company and its subsidiaries, taken as a whole,
(iv) no legal or governmental action, suit or proceeding affecting the Company
or any of its subsidiaries which is material to the Company and its subsidiaries
or which affects or may affect the transactions contemplated by this Agreement
shall have been instituted or threatened and (v) there shall not have been any
material change in the condition (financial or otherwise), business, management,
results of operations or prospects of the Company and its subsidiaries taken as
a whole which makes it impractical or inadvisable in your judgment to proceed
with the public offering or purchase the Common Shares as contemplated hereby.
(c) There shall have been furnished to you on each Closing Date, in form
and substance satisfactory to the Underwriters, except as otherwise expressly
provided below:
20
<PAGE>
(i) An opinion of Winstead Sechrest & Minick P.C., counsel for the Company,
addressed to the Underwriters and dated the First Closing Date, or the Second
Closing Date, as the case may be, to the effect that:
(1) The Company and each of the Significant Subsidiaries other than
Landry's Management, L.P. (the "Significant Corporate Subsidiaries") have been
duly incorporated, are validly existing and in good standing as corporations
under the laws of their respective jurisdictions and have all requisite
corporate power and authority to own or lease its properties and conduct its
business as described in the Prospectus; the Partnership has been duly organized
and is validly existing and in good standing as a limited partnership under the
laws of its jurisdiction of organization and has all requisite partnership power
and authority to own or lease its properties and conduct its business as
described in the Prospectus; the Company and each of the Significant Corporate
Subsidiaries is duly qualified as a foreign corporation in good standing in all
other jurisdictions where it owns or leases properties or conducts business; and
the Partnership is duly qualified as a foreign limited partnership in good
standing in all other jurisdictions where it owns or leases properties or
conducts business;
(2) The authorized, issued and outstanding capital stock of the Company is
as set forth under the caption "Capitalization" in the Prospectus; all necessary
and proper corporate proceedings have been taken in order to authorize validly
such authorized Common Stock; all outstanding shares of Common Stock (including
the Firm Common Shares and any Optional Common Shares) have been duly and
validly issued, are fully paid and nonassessable, have been issued in compliance
with federal and state securities laws, were not issued in violation of or
subject to any preemptive rights or other rights to subscribe for or purchase
any securities and conform to the description thereof contained in the
Prospectus; without limiting the foregoing, there are no preemptive or other
rights to subscribe for or purchase any of the Common Shares to be sold by the
Company hereunder;
(3) All of the issued and outstanding shares of capital stock of the
Company's Significant Corporate Subsidiaries have been duly and validly
authorized and issued, are fully paid and nonassessable and are owned
beneficially by the Company free and clear of all liens, encumbrances, equities,
claims, security interests, voting trusts or other defects of title whatsoever;
and all of the outstanding general partner and limited partner interests in the
Partnership have been duly authorized and validly issued, are fully paid and
nonassessable and are owned, directly or indirectly (through one or more
Significant Corporate Subsidiaries), by the Company and are owned beneficially
by the Company free and clear of all liens, encumbrances, equities, claims,
security interests, voting trusts or other defects of title whatsoever;
(4) The certificates evidencing the Common Shares to be delivered hereunder
are in due and proper form under Delaware law, and when duly countersigned by
the Company's transfer agent and registrar, and delivered to, or upon the order
of, the Underwriters against
21
<PAGE>
payment of the agreed consideration therefor in accordance with the provisions
of this Agreement, the Common Shares represented thereby will be duly authorized
and validly issued, fully paid and nonassessable, will not have been issued in
violation of or subject to any preemptive rights or other rights to subscribe
for or purchase securities and will conform in all respects to the description
thereof contained in the Prospectus and there is no restriction upon the voting
or transfer of any of the Common Shares pursuant to applicable law (assuming
compliance with all applicable federal and state securities laws) or the
Company's certificate of incorporation or bylaws or, to the best of such
counsel's knowledge, any agreement or other outstanding instrument;
(5) Except as disclosed in or specifically contemplated by the Prospectus,
to the best of such counsel's knowledge, there are no outstanding options,
warrants or other rights calling for the issuance of, and no commitments, plans
or arrangements to issue, any shares of capital stock of the Company or any of
its subsidiaries or any security convertible into or exchangeable for capital
stock of the Company or any of its subsidiaries;
(6) (a) The Registration Statement has become effective under the Act, and,
to the best of such counsel's knowledge, no stop order suspending the
effectiveness of the Registration Statement or preventing the use of the
Prospectus has been issued and no proceedings for that purpose have been
instituted or are pending or contemplated by the Commission; any required filing
of the Prospectus and any supplement thereto pursuant to Rule 424(b) of the
Rules and Regulations has been made in the manner and within the time period
required by such Rule 424(b);
(b) The Registration Statement, the Prospectus and each amendment or
supplement thereto (except for the financial statements and schedules included
therein as to which such counsel need express no opinion) comply as to form in
all material respects with the requirements of the Act and the Rules and
Regulations;
(c) To the best of such counsel's knowledge, there are no franchises,
leases, contracts, agreements or documents of a character required to be
disclosed in the Registration Statement or Prospectus or to be filled as
exhibits to the Registration Statement which are not disclosed or filed, as
required;
(d) To the best of such counsel's knowledge, there are no legal or
governmental actions, suits or proceedings pending or threatened against the
Company which are required to be described in the Prospectus which are not
described as required;
(e) The documents incorporated by reference in the Registration Statement
and the Prospectus (except for the financial statements and schedules included
therein as to which such counsel need express no opinion), when they were filed
with the Commission, complied as to form in all material respects with the
requirements of the Exchange Act and the rules and regulations of the Commission
thereunder;
22
<PAGE>
(7) The Company has full right, power and authority to enter into this
Agreement and to sell and deliver the Common Shares to be sold by it to the
several Underwriters; this Agreement has been duly and validly authorized by all
necessary corporate action by the Company, has been duly and validly executed
and delivered by and on behalf of the Company, and is a valid and binding
agreement of the Company in accordance with its terms, except as enforceability
may be limited by general equitable principles, bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and except as to those provisions relating to indemnity or contribution for
liabilities arising under the Act as to which no opinion need be expressed; and
no approval, authorization, order, consent, registration, filing, qualification,
license or permit of or with any court, regulatory, administrative or other
governmental body is required for the execution and delivery of this Agreement
by the Company or the consummation of the transactions contemplated by this
Agreement, except (i) such as have been obtained and are in full force and
effect under the Act and (ii) such as may be required under United States and
Canadian Blue Sky laws in connection with the purchase and distribution of the
Common Shares by the Underwriters and the clearance of such offering with the
NASD (as to which matters in clauses (i) and (ii) no opinion need be expressed);
(8) Neither the execution or performance of this Agreement nor the
consummation of the transactions herein contemplated will conflict with, result
in the breach of, or constitute, either by itself or upon notice or the passage
of time or both, a default under, any agreement, mortgage, deed of trust, lease,
franchise, license, indenture, permit or other instrument known to such counsel
to which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries or any of its or their property may be bound
which is material to the Company and its subsidiaries, or violate any of the
provisions of the certificate of incorporation or bylaws, or other
organizational documents, of the Company or any of its subsidiaries or, so far
as is known to such counsel, violate any statute, judgment, decree, order, rule
or regulation of any court or governmental body having jurisdiction over the
Company or any of its subsidiaries or any of its or their property;
(9) Neither the Company nor any subsidiary is in violation of its
certificate of incorporation or bylaws, or other organizational documents or to
the best of such counsel's knowledge, in breach of or default with respect to
any provision of any agreement, mortgage, deed of trust, lease, franchise,
license, indenture, permit or other instrument known to such counsel to which
the Company or any such subsidiary is a party or by which it or any of its
properties may be bound or affected, except where such default would not
materially adversely affect the Company and its subsidiaries; and, to the best
of such counsel's knowledge, the Company and its subsidiaries are in compliance
with all laws, rules, regulations, judgments, decrees, orders and statutes of
any court or jurisdiction to which they are subject, except where noncompliance
would not materially adversely affect the Company and its subsidiaries;
23
<PAGE>
(10) To the best of such counsel's knowledge, no holders of securities of
the Company have rights which have not been waived to the registration of shares
of Common Stock or other securities, because of the filing of the Registration
Statement by the Company or the offering contemplated hereby;
(11) To the best of such counsel's knowledge, this Agreement has been duly
authorized, executed and delivered by or on behalf of the Selling Stockholder;
the performance of this Agreement and the consummation of the transactions
herein contemplated by the Selling Stockholder will not result in a breach of,
or constitute a default under, any indenture, mortgage, deed of trust, trust
(constructive or other), loan agreement, lease, franchise, license or other
agreement or instrument to which the Selling Stockholder is a party or by which
the Selling Stockholder or any of his properties may be bound, or violate any
statute, judgment, decree, order, rule or regulation known to such counsel of
any court or governmental body having jurisdiction over the Selling Stockholder
or any of his properties; and to the best of such counsel's knowledge, no
approval, authorization, order or consent of any court, regulatory body,
administrative agency or other governmental body is required for the execution
and delivery of this Agreement or the consummation by the Selling Stockholder of
the transactions contemplated by this Agreement, except (i) such as have been
obtained and are in full force and effect under the Act and (ii) such as may be
required under the rules of the NASD and United States and Canadian Blue Sky
laws;
(12) To the best of such counsel's knowledge, the Selling Stockholder has
full right, power and authority to enter into this Agreement and to sell,
transfer and deliver the Common Shares to be sold on such Closing Date by the
Selling Stockholder hereunder and good and marketable title to the Common Shares
to be sold on the Closing Date by the Selling Stockholder hereunder, free and
clear of all liens, encumbrances, equities, claims, restrictions, security
interests, voting trusts, or other defects of title whatsoever, has been
transferred to the Underwriters (whom counsel may assume to be bona fide
purchasers) who have purchased such Common Shares hereunder;
(13) To the best of such counsel's knowledge, this Agreement is a valid and
binding agreement of the Selling Stockholder in accordance with its terms except
as enforceability may be limited by general equitable principles, bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and except with respect to those provisions relating to indemnities or
contributions for liabilities under the Act, as to which no opinion need be
expressed;
(14) No transfer taxes are required to be paid in connection with the sale
and delivery of the Common Shares to the Underwriters hereunder;
(15) The Company has full right, power and authority to enter into each of
the Bayport Agreements; each of the Bayport Agreements has been duly and validly
authorized by all necessary corporate action by the Company, has been duly and
validly executed and
24
<PAGE>
delivered by and on behalf of the Company, and is a valid and binding agreement
of the Company in accordance with its terms, except as enforceability may be
limited by general equitable principles, bankruptcy, insolvency, reorganization,
moratorium or other laws affecting creditors' rights generally and except as to
those provisions relating to indemnity or contribution for liabilities arising
under the Act as to which no opinion need be expressed; and no approval,
authorization, order, consent, registration, filing, qualification, license or
permit of or with any court, regulatory, administrative or other governmental
body is required for the execution and delivery of any of the Bayport Agreements
by the Company or the consummation of the transactions contemplated thereby,
except for compliance with the Act, United States and Canadian Blue Sky laws and
the HSR Act; and
(16) Neither the execution or performance by the Company of any of the
Bayport Agreements and the consummation of the transactions therein contemplated
did or will conflict with, result in the breach of, or constitute, either by
itself or upon notice or the passage of time or both, a default under, any
agreement, mortgage, deed of trust, lease, franchise, license, indenture, permit
or other instrument known to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries or
any of its or their property may be bound which is material to the Company and
its subsidiaries, or violate any of the provisions of the certificate of
incorporation or bylaws, or other organizational documents, of the Company or
any of its subsidiaries or, so far as is known to such counsel, violate any
statute, judgment, decree, order, rule or regulation of any court or
governmental body having jurisdiction over the Company or any of its
subsidiaries or any of its or their property.
In rendering such opinion, such counsel may rely as to the matters set
forth in paragraphs (11), (12), (13) and (14), on opinions of other counsel
retained by the Selling Stockholder, as to matters of local law, on opinions of
local counsel, and as to matters of fact, on certificates of the Selling
Stockholder and of officers of the Company and of governmental officials, in
which case their opinion is to state that they are so doing and that the
Underwriters are justified in relying on such opinions or certificates and
copies of said opinions or certificates are to be attached to the opinion. Such
counsel shall also include a statement to the effect that nothing has come to
such counsel's attention that would lead such counsel to believe that either at
the effective date of the Registration Statement or at the applicable Closing
Date, the Registration Statement or the Prospectus, or any such amendment or
supplement, contains any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading;
(ii) An opinion of Akerman, Senterfitt & Eidson, P.A., counsel for Bayport,
addressed to the Underwriters and dated the First Closing Date, or the Second
Closing Date, as the case may be, to the effect that:
(1) Bayport and each of its significant subsidiaries, as such term is
defined in Rule 1-02 of Regulation S-X of the Rules and Regulations (the
"Bayport Significant
25
<PAGE>
Subsidiaries") have been duly incorporated, are validly existing and in good
standing as corporations under the laws of their respective jurisdictions and
have all requisite corporate power and authority to own or lease their
respective properties and conduct their respective business as described in the
Prospectus; and each of Bayport and the Bayport Significant Subsidiaries is duly
qualified as a foreign corporation in good standing in all other jurisdictions
where it owns or leases properties or conducts business;
(2) The authorized, issued and outstanding capital stock of Bayport is as
set forth in the latest balance sheet and related notes thereto included in the
Bayport Financial Statements incorporated by reference in the Prospectus; all
necessary and proper corporate proceedings have been taken in order to validly
authorize such authorized capital stock; all outstanding shares of capital stock
of Bayport have been duly and validly issued, are fully paid and nonassessable,
have been issued in compliance with federal and state securities laws and were
not issued in violation of or subject to any preemptive rights or other rights
to subscribe for or purchase any securities;
(3) All of the issued and outstanding shares of capital stock of Bayport's
Significant Subsidiaries have been duly and validly authorized and issued, are
fully paid and nonassessable and are owned beneficially by Bayport free and
clear of all liens, encumbrances, equities, claims, security interests, voting
trusts or other defects of title whatsoever;
(4) Except as disclosed in the latest balance sheet and related notes
thereto included in the Bayport Financial Statements incorporated by reference,
to the best of such counsel's knowledge, there are no outstanding options,
warrants or other rights calling for the issuance of, and no commitments, plans
or arrangements to issue, any shares of capital stock of Bayport or any of its
subsidiaries or any security convertible into or exchangeable for capital stock
of Bayport or any of its subsidiaries;
(5) To the best of such counsel's knowledge, there are no legal or
governmental actions, suits or proceedings pending or threatened against Bayport
which are not described in the Merger Agreement;
(6) Bayport has full right, power and authority to enter into each of the
Bayport Agreements; each of the Bayport Agreements has been duly and validly
authorized by all necessary corporate action by Bayport (except for obtaining
the approval of the transactions contemplated by the Merger Agreement by its
stockholders in accordance with the applicable provisions of the law of its
state of incorporation, its certificate of incorporation or its bylaws), has
been duly and validly executed and delivered by and on behalf of Bayport, and is
a valid and binding agreement of Bayport in accordance with its terms, except as
enforceability may be limited by general equitable principles, bankruptcy,
insolvency, reorganization, moratorium or other laws affecting creditors' rights
generally and except as to those provisions relating to indemnity or
contribution for liabilities arising under the Act
26
<PAGE>
as to which no opinion need be expressed; and no approval, authorization, order,
consent, registration, filing, qualification, license or permit of or with any
court, regulatory, administrative or other governmental body is required for the
execution and delivery of any of the Bayport Agreements by Bayport or the
consummation of the transactions contemplated thereby, except for compliance
with the Act, United States and Canadian Blue Sky laws and the HSR Act;
(7) Neither the execution or performance of any of the Bayport Agreements
by Bayport nor the consummation of the transactions therein contemplated did or
will conflict with, result in the breach of, or constitute, either by itself or
upon notice or the passage of time or both, a default under, any agreement,
mortgage, deed of trust, lease, franchise, license, indenture, permit or other
instrument known to such counsel to which Bayport or any of its subsidiaries is
a party or by which Bayport or any of its subsidiaries or any of its or their
property may be bound which is material to Bayport and its subsidiaries, or
violate any of the provisions of the certificate of incorporation or bylaws, or
other organizational documents, of Bayport or any of its subsidiaries or, so far
as is known to such counsel, violate any statute, judgment, decree, order, rule
or regulation of any court or governmental body having jurisdiction over Bayport
or any of its subsidiaries or any of its or their property;
(8) Neither Bayport nor any subsidiary is in violation of its certificate
of incorporation or bylaws, or other organizational documents or to the best of
such counsel's knowledge, in breach of or default with respect to any provision
of any agreement, mortgage, deed of trust, lease, franchise, license, indenture,
permit or other instrument known to such counsel to which Bayport or any such
subsidiary is a party or by which it or any of its properties may be bound or
affected, except where such default would not materially adversely affect
Bayport and its subsidiaries; and, to the best of such counsel's knowledge,
Bayport and its subsidiaries are in compliance with all laws, rules,
regulations, judgments, decrees, orders and statutes of any court or
jurisdiction to which they are subject, except where noncompliance would not
materially adversely affect Bayport and its subsidiaries.
In rendering such opinion, such counsel may rely, as to matters of local
law, on opinions of local counsel, and as to matters of fact, on certificates of
officers of Bayport and of governmental officials, in which case their opinion
is to state that they are so doing and that the Underwriters are justified in
relying on such opinions or certificates and copies of said opinions or
certificates are to be attached to the opinion. Such counsel shall also include
a statement to the effect that nothing has come to such counsel's attention that
would lead such counsel to believe that either at the effective date of the
Registration Statement or at the applicable Closing Date, the portions of the
Registration Statement or the Prospectus contained under the captions "The
Bayport Acquisition" and "Business - Business of Bayport" contains any untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading;
27
<PAGE>
(iii) Such opinion or opinions of Andrews & Kurth L.L.P., counsel for the
Underwriters, dated the First Closing Date or the Second Closing Date, as the
case may be, with respect to the incorporation of the Company, the sufficiency
of all corporate proceedings and other legal matters relating to this Agreement,
the validity of the Common Shares, the Registration Statement and the Prospectus
and other related matters as the Underwriters may reasonably require, and the
Company and the Selling Stockholder shall have furnished to such counsel such
documents and shall have exhibited to them such papers and records as they may
reasonably request for the purpose of enabling them to pass upon such matters.
In connection with such opinions, such counsel may rely on representations or
certificates of officers of the Company and governmental officials.
(iv) A certificate of the Company executed by the Chief Executive Officer
or President and the chief financial or accounting officer of the Company, dated
the First Closing Date or the Second Closing Date, as the case may be, to the
effect that:
(1) The representations and warranties of the Company set forth in Section
2 of this Agreement are true and correct as of the date of this Agreement and
as of the First Closing Date or the Second Closing Date, as the case may be,
and the Company has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied on or prior to such Closing
Date;
(2) The Commission has not issued any order preventing or suspending the
use of the Prospectus or any Preliminary Prospectus filed as a part of the
Registration Statement or any amendment thereto; no stop order suspending the
effectiveness of the Registration Statement has been issued; and to the best of
the knowledge of the respective signers, no proceedings for that purpose have
been instituted or are pending or contemplated under the Act;
(3) Each of the respective signers of the certificate has carefully
examined the Registration Statement and the Prospectus; in his opinion and to
the best of his knowledge, the Registration Statement and the Prospectus and
any amendments or supplements thereto contain all statements required to be
stated therein regarding the Company and its subsidiaries; and neither the
Registration Statement nor the Prospectus nor any amendment or supplement
thereto includes any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading;
(4) Since the initial date on which the Registration Statement was filed,
no agreement, written or oral, transaction or event has occurred which should
have been set forth in an amendment to the Registration Statement or in a
supplement to or amendment of any prospectus which has not been disclosed in
such a supplement or amendment;
(5) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, and except as disclosed in or
contemplated by the Prospectus,
28
<PAGE>
there has not been any material adverse change or a development involving a
material adverse change in the condition (financial or otherwise), business,
properties, results of operations, management or prospects of the Company and
its subsidiaries taken as a whole; and no legal or governmental action, suit or
proceeding is pending or threatened against the Company or any of its
subsidiaries which is material to the Company and its subsidiaries, whether or
not arising from transactions in the ordinary course of business, or which may
adversely affect the transactions contemplated by this Agreement; since such
dates and except as so disclosed, neither the Company nor any of its
subsidiaries has entered into any verbal or written agreement or other
transaction which is not in the ordinary course of business or which could
result in a material reduction in the future earnings of the Company or
incurred any material liability or obligation, direct, contingent or indirect,
made any change in its capital stock, made any material change in its short-
term debt or funded debt or repurchased or otherwise acquired any of the
Company's capital stock; and the Company has not declared or paid any dividend,
or made any other distribution, upon its outstanding capital stock payable to
stockholders of record on a date prior to the First Closing Date or Second
Closing Date; and
(6) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus and except as disclosed in or
contemplated by the Prospectus, the Company and its subsidiaries have not
sustained a material loss or damage by strike, fire, flood, windstorm, accident
or other calamity (whether or not insured).
(v) On the First Closing Date or the Second Closing Date, as the case may
be, a certificate, dated such Closing Date and addressed to the Underwriters,
signed by or on behalf of the Selling Stockholder to the effect that the
representations and warranties of the Selling Stockholder in this Agreement are
true and correct, as if made at and as of the First Closing Date or the Second
Closing Date, as the case may be, and the Selling Stockholder has complied with
all the agreements and satisfied all the conditions on his part to be performed
or satisfied prior to the First Closing Date or the Second Closing Date, as the
case may be.
(vi) On the date before this Agreement is executed, and also on the First
Closing Date and the Second Closing Date a letter addressed to the Underwriters
from Arthur Andersen LLP, independent accountants, the first one to be dated the
day before the date of this Agreement, the second one to be dated the First
Closing Date and the third one (in the event of a Second Closing) to be dated
the Second Closing Date, in form and substance satisfactory to you.
(vii) On the date before this Agreement is executed, and also on the First
Closing Date and the Second Closing Date a letter addressed to the Underwriters
from Grant Thornton LLP, independent accountants, the first one to be dated the
day before the date of this Agreement, the second one to be dated the First
Closing Date and the third one (in the event of a Second Closing) to be dated
the Second Closing Date, in form and substance satisfactory to you.
29
<PAGE>
(viii) On or before the First Closing Date, letters from each director and
officer of the Company, in form and substance satisfactory to you, confirming
that for a period of 90 days after the date of the Prospectus, such person will
not directly or indirectly sell or offer to sell or otherwise dispose of any
shares of Common Stock or any right to acquire such shares without the prior
written consent of Montgomery Securities other than shares disposed of as bona
fide gifts, provided such gifted shares continued to be bound for the prescribed
period.
(ix) On or before the First Closing Date, the Common Shares shall have been
duly approved for quotation on the Nasdaq National Market.
All such opinions, certificates, letters and documents shall be in
compliance with the provisions hereof only if they are satisfactory to you and
to Andrews & Kurth L.L.P., counsel for the Underwriters. The Company shall
furnish you with such manually signed or conformed copies of such opinions,
certificates, letters and documents as you request. Any certificate signed by
any officer of the Company and delivered to the Underwriters or to counsel for
the Underwriters shall be deemed to be a representation and warranty by the
Company to the Underwriters as to the statements made therein.
If any condition to your obligations hereunder to be satisfied prior to or
at the First Closing Date is not so satisfied, this Agreement at your election
will terminate upon notification by you to the Company and the Selling
Stockholder without liability on your part or the part of the Company or the
Selling Stockholder except for the expenses to be paid or reimbursed by the
Company and by the Selling Stockholder pursuant to Sections 7 and 9 hereof and
except to the extent provided in Section 11 hereof.
Section 9. Reimbursement of Underwriters' Expenses. Notwithstanding any
other provisions hereof, if this Agreement shall be terminated by you pursuant
to Section 8, or if the sale to the Underwriters of the Common Shares at the
First Closing is not consummated because of any refusal, inability or failure on
the part of the Company or the Selling Stockholder to perform any agreement
herein or to comply with any provision hereof, the Company agrees to reimburse
you upon demand for all out-of-pocket expenses that shall have been reasonably
incurred by you in connection with the proposed purchase and the sale of the
Common Shares, including but not limited to fees and disbursements of counsel,
printing expenses, travel expenses, postage, telegraph charges and telephone
charges relating directly to the offering contemplated by the Prospectus. Any
such termination shall be without liability of any party to any other party
except that the provisions of this Section, Section 7 and Section 11 shall at
all times be effective and shall apply.
Section 10. Effectiveness of Registration Statement. You, the Company
and the Selling Stockholder will use your, its and his best efforts to cause the
Registration Statement to become effective, to prevent the issuance of any stop
order suspending the effectiveness of the Registration Statement and, if such
stop order be issued, to obtain as soon as possible the lifting thereof.
30
<PAGE>
Section 11. Indemnification. (a) The Company and the Selling
Stockholder, jointly and severally, agree to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within the
meaning of the Act against any losses, claims, damages, liabilities or expenses,
joint or several, to which such Underwriter or such controlling person may
become subject, under the Act, the Exchange Act, or other federal or state
statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the written
consent of the Company), insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof as contemplated below) arise out of
or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state in any of them a
material fact required to be stated therein or necessary to make the statements
in any of them not misleading, or arise out of or are based in whole or in part
on any inaccuracy in the representations and warranties of the Company or the
Selling Stockholder contained herein or any failure of the Company or the
Selling Stockholder to perform their respective obligations hereunder or under
law; and will reimburse each Underwriter and each such controlling person for
any legal and other expenses as such expenses are reasonably incurred by such
Underwriter or such controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action; provided, however, neither the Company nor the
Selling Stockholder will be liable in any such case to the extent that any such
loss, claim, damage, liability or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in the Registration Statement, any Preliminary Prospectus, the Prospectus
or any amendment or supplement thereto in reliance upon and in conformity with
the information furnished to the Company pursuant to Section 4 hereof; and
provided further, that with respect to any untrue statement or omission or
alleged untrue statement or omission made in any Preliminary Prospectus, the
indemnity contained in this paragraph shall not inure to the benefit of any
Underwriter from whom the person asserting any such loss, claim, damages,
liabilities or expenses purchased the Common Stock concerned (or to the benefit
of any person controlling such Underwriter) to the extent any such loss, claim,
damage, liability or expense of such Underwriter or controlling person results
from the fact that a copy of the Prospectus was not sent or given to such person
at or prior to the written confirmation of sale of Common Stock to such person
as required by the Act, and if the untrue statement or omission has been
corrected in the Prospectus, unless the failure to deliver the Prospectus was a
result of noncompliance by the Company with its obligations under Section 6(e)
hereof; and provided further, that the Selling Stockholder shall only be liable
under this paragraph for an amount equal to the initial offering price of the
Common Stock sold by the Selling Stockholder to the Underwriters. The Company
and the Selling Stockholder may agree, as among themselves and without limiting
the rights of the Underwriters under this Agreement, as to their respective
amounts of such liability for which they each shall be responsible. In addition
to their other obligations under this Section 11(a), the Company and the Selling
Stockholder agree that, as an interim measure during the pendency of any claim,
action, investigation, inquiry or other proceeding arising out of or based upon
any statement or omission, or any alleged statement or omission, or any
inaccuracy in the representations and warranties of the Company or the Selling
Stockholder herein or failure to perform their obligations hereunder, all as
described in this
31
<PAGE>
Section 11(a), they will reimburse each Underwriter on a quarterly basis for all
reasonable legal or other expenses incurred in connection with investigating or
defending any such claim, action, investigation, inquiry or other proceeding,
notwithstanding the absence of a judicial determination as to the propriety and
enforceability of the Company's or the Selling Stockholder's obligation to
reimburse each Underwriter for such expenses and the possibility that such
payments might later be held to have been improper by a court of competent
jurisdiction. To the extent that any such interim reimbursement payment is so
held to have been improper, each Underwriter shall promptly return it to the
Company together with interest, compounded daily, determined on the basis of the
prime rate (or other commercial lending rate for borrowers of the highest credit
standing) announced from time to time by Bank of America NT&SA, San Francisco,
California (the "Prime Rate"). Any such interim reimbursement payments which are
not made to an Underwriter within 30 days of a request for reimbursement, shall
bear interest at the Prime Rate from the date of such request. This indemnity
agreement will be in addition to any liability which the Company or the Selling
Stockholder may otherwise have.
(b) Each Underwriter will severally indemnify and hold harmless the
Company, each of its directors, each of its officers who signed the Registration
Statement, the Selling Stockholder and each person, if any, who controls the
Company or the Selling Stockholder within the meaning of the Act, against any
losses, claims, damages, liabilities or expenses to which the Company, the
Selling Stockholders, or any such director, officer or controlling person may
become subject, under the Act, the Exchange Act, or other federal or state
statutory law or regulation, or at common law or otherwise (including the
settlement of any litigation, if such settlement is effected with the written
consent of such Underwriter), insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof as contemplated below)
arise out of or are based upon any untrue or alleged untrue statement of any
material fact contained in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in the Registration Statement, any Preliminary Prospectus, the
Prospectus, or any amendment or supplement thereto, in reliance upon and in
conformity with the information furnished to the Company pursuant to Section 4
hereof, and will reimburse the Company, the Selling Stockholder, or any such
director, officer or controlling person for any legal and other expense
reasonably incurred by the Company, the Selling Stockholder, or any such
director, officer or controlling person in connection with investigating,
defending, settling, compromising or paying any such loss, claim, damage,
liability, expense or action. In addition to its other obligations under this
Section 11(b), each Underwriter severally agrees that, as an interim measure
during the pendency of any claim, action, investigation, inquiry or other
proceeding arising out of or based upon any statement or omission, or any
alleged statement or omission, or any alleged statement or omission, described
in this Section 11(b) which relates to information furnished to the Company
pursuant to Section 4 hereof, it will reimburse the Company (and, to the extent
applicable, each officer, director, controlling person or the Selling
Stockholder) on a quarterly basis for all reasonable legal or other expenses
incurred in connection with investigating or defending any such claim, action,
32
<PAGE>
investigation, inquiry or other proceeding, notwithstanding the absence of a
judicial determination as to the propriety and enforceability of the
Underwriters' obligation to reimburse the Company (and, to the extent
applicable, each officer, director, controlling person or the Selling
Stockholder) for such expenses and the possibility that such payments might
later be held to have been improper by a court of competent jurisdiction. To the
extent that any such interim reimbursement payment is so held to have been
improper, the Company (and, to the extent applicable, each officer, director,
controlling person or the Selling Stockholder) shall promptly return it to the
Underwriters together with interest, compounded daily, determined on the basis
of the Prime Rate. Any such interim reimbursement payments which are not made to
the Company within 30 days of a request for reimbursement, shall bear interest
at the Prime Rate from the date of such request. This indemnity agreement will
be in addition to any liability which such Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under this
Section, notify the indemnifying party in writing of the commencement thereof,
but the omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party for contribution or
otherwise than under the indemnity agreement contained in this Section or to the
extent it is not prejudiced as a proximate result of such failure. In case any
such action is brought against any indemnified party and such indemnified party
seeks or intends to seek indemnity from an indemnifying party, the indemnifying
party will be entitled to participate in, and, to the extent that it may wish,
jointly with all other indemnifying parties similarly notified, to assume the
defense thereof with counsel reasonably satisfactory to such indemnified party;
provided, however, if the defendants in any such action include both the
indemnified party and the indemnifying party and the indemnified party shall
have reasonably concluded that there may be a conflict between the positions of
the indemnifying party and the indemnified party in conducting the defense of
any such action or that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have the right to
select separate counsel to assume such legal defenses and to otherwise
participate in the defense of such action on behalf of such indemnified party or
parties. Upon receipt of notice from the indemnifying party to such indemnified
party of its election so to assume the defense of such action and approval by
the indemnified party of counsel, the indemnifying party will not be liable to
such indemnified party under this Section 11 for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof unless (i) the indemnified party shall have employed such counsel in
connection with the assumption of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Underwriters in the case of paragraph (a),
representing the indemnified parties who are parties to such action) or (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time after notice of commencement of the action, in each of which cases the fees
and expenses of counsel shall be at the expense of the indemnifying party.
33
<PAGE>
(d) If the indemnification provided for in this Section 11 is required by
its terms but is for any reason held to be unavailable to or otherwise
insufficient to hold harmless an indemnified party under paragraphs (a), (b) or
(c) in respect of any losses, claims, damages, liabilities or expenses referred
to herein, then each applicable indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of any losses,
claims, damages, liabilities or expenses referred to herein (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, the Selling Stockholder and the Underwriters from the offering of the
Common Shares or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company, the Selling Stockholder and the Underwriters in connection
with the statements or omissions or inaccuracies in the representations and
warranties herein which resulted in such losses, claims, damages, liabilities or
expenses, as well as any other relevant equitable considerations. The respective
relative benefits received by the Company, the Selling Stockholder and the
Underwriters shall be deemed to be in the same proportion, in the case of the
Company and the Selling Stockholder as the total price paid to the Company and
to the Selling Stockholder, respectively, for the Common Shares sold by them to
the Underwriters (net of underwriting commissions but before deducting expenses)
bears to the total price to the public set forth on the cover of the Prospectus,
and in the case of the Underwriters as the underwriting commissions received by
them bears to the total price to the public set forth on the cover of the
Prospectus. The relative fault of the Company, the Selling Stockholder and the
Underwriters shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact or the inaccurate or the alleged
inaccurate representation and/or warranty relates to information supplied by the
Company, the Selling Stockholder or the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The amount paid or payable by a party as a result of
the losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include, subject to the limitations set forth in subparagraph (c) of
this Section 11, any legal or other fees or expenses reasonably incurred by such
party in connection with investigating or defending any action or claim. The
provisions set forth in subparagraph (c) of this Section 11 with respect to
notice of commencement of any action shall apply if a claim for contribution is
to be made under this subparagraph (d); provided, however, that no additional
notice shall be required with respect to any action for which notice has been
given under subparagraph (c) for purposes of indemnification. The Company, the
Selling Stockholder and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 11 were determined solely by
pro rata allocation (even if the 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 in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 11, no Underwriter
shall be required to contribute any amount in excess of the amount of the total
underwriting commissions received by such Underwriter in connection with the
Common Shares underwritten by it and distributed to the public. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters'
34
<PAGE>
obligations to contribute pursuant to this Section 11 are several in proportion
to their respective underwriting commitments and not joint.
(e) It is agreed that any controversy arising out of the operation of the
interim reimbursement arrangements set forth in Sections 11(a) and 11(b) hereof,
including the amounts of any requested reimbursement payments and the method of
determining such amounts, shall be settled by arbitration conducted under the
provisions of the Constitution and Rules of the Board of Governors of the New
York Stock Exchange, Inc. or pursuant to the Code of Arbitration Procedure of
the NASD. Any such arbitration must be commenced by service of a written demand
for arbitration or written notice of intention to arbitrate, therein electing
the arbitration tribunal. In the event the party demanding arbitration does not
make such designation of an arbitration tribunal in such demand or notice, then
the party responding to said demand or notice is authorized to do so. Such an
arbitration would be limited to the operation of the interim reimbursement
provisions contained in Sections 11(a) and 11(b) hereof and would not resolve
the ultimate propriety or enforceability of the obligation to reimburse expenses
which is created by the provisions of such Sections 11(a) and 11(b) hereof.
Section 12. Default of Underwriters. It shall be a condition to this
Agreement and the obligation of the Company and the Selling Stockholder to sell
and deliver the Common Shares hereunder, and of each Underwriter to purchase the
Common Shares in the manner as described herein, that, except as hereinafter in
this paragraph provided, each of the Underwriters shall purchase and pay for all
the Common Shares agreed to be purchased by such Underwriter hereunder upon
tender to the Representatives of all such shares in accordance with the terms
hereof. If any Underwriter defaults in its obligations to purchase Common
Shares hereunder on either the First or Second Closing Date and the aggregate
number of Common Shares which such defaulting Underwriter agreed but failed to
purchase on such Closing Date does not exceed 10% of the total number of Common
Shares which the Underwriters are obligated to purchase on such Closing Date,
the non-defaulting Underwriters shall be obligated severally, in proportion to
their respective commitments hereunder, to purchase the Common Shares which such
defaulting Underwriter agreed but failed to purchase on such Closing Date. If
any Underwriter defaults and the aggregate number of Common Shares with respect
to which such default occurs is more than the above percentage and arrangements
satisfactory to the Representatives and the Company for the purchase of such
Common Shares by other persons are not made within 48 hours after such default,
this Agreement will terminate without liability on the part of any non-
defaulting Underwriter or the Company or the Selling Stockholder except for the
expenses to be paid by the Company and the Selling Stockholder pursuant to
Section 7 hereof and except to the extent provided in Section 11 hereof.
In the event that Common Shares to which a default relates are to be
purchased by the non-defaulting Underwriter or by another party or parties, the
Representatives or the Company shall have the right to postpone the First or
Second Closing Date, as the case may be, for not more than five business days in
order that the necessary changes in the Registration Statement, Prospectus and
any other documents, as well as any other arrangements, may be effected. As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter under this Section. Nothing herein will relieve a defaulting
Underwriter from liability for its default.
35
<PAGE>
Section 13. Effective Date. This Agreement shall become effective
immediately as to Sections 7, 9, 11, 14 and 16 and, as to all other provisions,
(i) if at the time of execution of this Agreement the Registration Statement has
not become effective, at 2:00 P.M., California time, on the first full business
day following the effectiveness of the Registration Statement, or (ii) if at the
time of execution of this Agreement the Registration Statement has been declared
effective, at 2:00 P.M., California time, on the first full business day
following the date of execution of this Agreement; but this Agreement shall
nevertheless become effective at such earlier time after the Registration
Statement becomes effective as you may determine on and by notice to the Company
or by release of any of the Common Shares for sale to the public. For the
purposes of this Section 13, the Common Shares shall be deemed to have been so
released upon the release for publication of any newspaper advertisement
relating to the Common Shares or upon the release by you of telegrams (i)
advising Underwriters that the Common Shares are released for public offering,
or (ii) offering the Common Shares for sale to securities dealers, whichever may
occur first.
Section 14. Termination. Without limiting the right to terminate this
Agreement pursuant to any other provision hereof:
(a) This Agreement may be terminated by the Company by notice to you and
the Selling Stockholder or by you by notice to the Company and the Selling
Stockholder at any time prior to the time this Agreement shall become effective
as to all its provisions, and any such termination shall be without liability on
the part of the Company or the Selling Stockholder to any Underwriter (except
for the expenses to be paid or reimbursed by the Company and the Selling
Stockholder pursuant to Sections 7 and 9 hereof and except to the extent
provided in Section 11 hereof) or of any Underwriter to the Company or the
Selling Stockholder (except to the extent provided in Section 11 hereof).
(b) This Agreement may also be terminated by you prior to the First Closing
Date by notice to the Company (i) if additional material governmental
restrictions, not in force and effect on the date hereof, shall have been
imposed upon trading in securities generally or minimum or maximum prices shall
have been generally established on the New York Stock Exchange or on the
American Stock Exchange or in the over the counter market by the NASD, or
trading in securities generally shall have been suspended on either such
exchange or in the over the counter market by the NASD, or a general banking
moratorium shall have been established by federal, New York or California
authorities, (ii) if an outbreak of major hostilities or other national or
international calamity or any substantial change in political, financial or
economic conditions shall have occurred or shall have accelerated or escalated
to such an extent, as, in the judgment of the Representatives, to materially and
adversely affect the marketability of the Common Shares, (iii) if any adverse
event shall have occurred or shall exist which makes untrue or incorrect in any
material respect any statement or information contained in the Registration
Statement or Prospectus or which is not reflected in the Registration Statement
or Prospectus but should be reflected therein in order to make the statements or
information contained therein not misleading in any material respect, or (iv) if
there shall be any action, suit or proceeding pending or threatened, or there
shall have been any development or prospective development involving
particularly the business or properties or securities of the Company or any of
its subsidiaries or the transactions contemplated by this
36
<PAGE>
Agreement, which, in the reasonable judgment of the Representatives, may
materially and adversely affect the Company's business or earnings and makes it
impracticable or inadvisable to offer or sell the Common Shares. Any termination
pursuant to this subsection (b) shall be without liability on the part of any
Underwriter to the Company or the Selling Stockholder or on the part of the
Company or the Selling Stockholder to any Underwriter (except for expenses to be
paid or reimbursed by the Company and the Selling Stockholder pursuant to
Sections 7 and 9 hereof and except to the extent provided in Section 11 hereof).
(c) This Agreement shall also terminate at 5:00 P.M., California time, on
the tenth full business day after the Registration Statement shall have become
effective if the initial public offering price of the Common Shares shall not
then as yet have been determined as provided in Section 5 hereof. Any
termination pursuant to this subsection (c) shall be without liability on the
part of any Underwriter to the Company or the Selling Stockholder or on the part
of the Company or the Selling Stockholder to any Underwriter (except for
expenses to be paid or reimbursed by the Company and the Selling Stockholder
pursuant to Sections 7 and 9 hereof and except to the extent provided in Section
11 hereof).
Section 15. Failure of the Selling Stockholder to Sell and Deliver. If
the Selling Stockholder shall fail to sell and deliver to the Underwriters the
Common Shares to be sold and delivered by the Selling Stockholder at the First
Closing Date under the terms of this Agreement, then the Underwriters may at
their option, by written notice from you to the Company and the Selling
Stockholder, either (i) terminate this Agreement without any liability on the
part of any Underwriter or, except as provided in Sections 7, 9 and 11 hereof,
the Company or the Selling Stockholder, or (ii) purchase the shares which the
Company has agreed to sell and deliver in accordance with the terms hereof. In
the event of a failure by the Selling Stockholder to sell and deliver as
referred to in this Section, either you or the Company shall have the right to
postpone the First Closing Date for a period not exceeding seven business days
in order that the necessary changes in the Registration Statement, Prospectus
and any other documents, as well as any other arrangements, may be effected.
Section 16. Representations and Indemnities to Survive Delivery. The
respective indemnities, agreements, representations, warranties and other
statements of the Company, of its officers, of the Selling Stockholder and of
the several Underwriters set forth in or made pursuant to this Agreement will
remain in full force and effect, regardless of any investigation made by or on
behalf of any Underwriters or the Company or any of its or their partners,
officers or directors or any controlling person, or the Selling Stockholder, as
the case may be, and will survive delivery of and payment for the Common Shares
sold hereunder and any termination of this Agreement.
Section 17. Notices. All communications hereunder shall be in writing
and, if sent to the Underwriters shall be mailed, delivered or telegraphed and
confirmed to you at 600 Montgomery Street, San Francisco, California 94111,
Attention: Karl Matthies, with a copy to Andrews & Kurth L.L.P., 4200 Texas
Commerce Tower, Houston, Texas 77002, Attn: Thomas P. Mason, Esq.; and if sent
to the Company or the Selling Stockholder shall be mailed, delivered or
telegraphed and confirmed to the Company at 1400 Post Oak Boulevard, Suite 1010,
Houston, Texas 77056, Attention: Tilman J. Fertitta, with a copy to Winstead
Sechrest & Minick P.C., 910 Travis,
37
<PAGE>
Suite 1700, Houston, Texas 77002, Attention: Arthur S. Berner; Esq. The Company,
the Selling Stockholder or you may change the address for receipt of
communications hereunder by giving notice to the others.
Section 18. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto, including any substitute Underwriters pursuant
to Section 12 hereof, and to the benefit of the officers and directors and
controlling persons referred to in Section 11, and in each case their respective
successors, personal representatives and assigns, and no other person will have
any right or Obligation hereunder. No such assignment shall relieve any party of
its obligations hereunder. The term "successors" shall not include any purchaser
of the Common Shares as such from any of the Underwriters merely by reason of
such purchase.
Section 19. Representation of Underwriters. You will act as
Representatives for the several Underwriters in connection with all dealings
hereunder, and any action under or in respect of this Agreement taken by you
jointly or by Montgomery Securities, as Representatives, will be binding upon
all the Underwriters.
Section 20. Partial Unenforceability. The invalidity or unenforceability
of any Section, paragraph or provision of this Agreement shall not affect the
validity or enforceability of any other Section, paragraph or provision hereof.
If any Section, paragraph or provision of this Agreement is for any reason
determined to be invalid or unenforceable, there shall be deemed to be made such
minor changes (and only such minor changes) as are necessary to make it valid
and enforceable.
Section 21. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws (and not the laws pertaining to
conflicts of laws) of the State of Delaware.
Section 22. General. This Agreement constitutes the entire agreement of
the parties to this Agreement and supersedes all prior written or oral and all
contemporaneous oral agreements, understandings and negotiations with respect to
the subject matter hereof. This Agreement may be executed in several
counterparts' each one of which shall be an original, and all of which shall
constitute one and the same document.
In this Agreement, the masculine, feminine and neuter genders and the
singular and the plural include one another. The section headings in this
Agreement are for the convenience of the parties only and will not affect the
construction or interpretation of this Agreement. This Agreement may be amended
or modified, and the observance of any term of this Agreement may be waived,
only by a writing signed by the Company, the Selling Stockholder and you.
38
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
kindly sign and return to us the enclosed copies hereof, whereupon it will
become a binding agreement among the Company, the Selling Stockholder and the
several Underwriters including you, all in accordance with its terms.
Very truly yours,
LANDRY'S SEAFOOD
RESTAURANTS, INC.
By: ________________________________
Tilman J. Fertitta, President
and Chief Executive Officer
SELLING STOCKHOLDER
By: ________________________________
Tilman J. Fertitta
The foregoing Underwriting Agreement
is hereby confirmed and accepted by us
in San Francisco, California as of the
date first above written.
MONTGOMERY SECURITIES
J.C. BRADFORD & CO.
PIPER JAFFRAY INC.
ACTING AS REPRESENTATIVES OF THE
SEVERAL UNDERWRITERS NAMED IN
THE ATTACHED SCHEDULE A.
BY: MONTGOMERY SECURITIES
By: _________________________________
Richard A. Smith
Managing Director
39
<PAGE>
SCHEDULE A
<TABLE>
<CAPTION>
NUMBER OF FIRM
COMMON SHARES
TO BE PURCHASED
NAME OF UNDERWRITER BY UNDERWRITERS
- ------------------- ---------------
<S> <C>
Montgomery Securities.............................
J.C. Bradford & Co. ..............................
Piper Jaffray Inc. ...............................
---------
TOTAL................................. 4,500,000
=========
</TABLE>
40
<PAGE>
SCHEDULE B
SUBSIDIARIES OF LANDRY'S SEAFOOD RESTAURANTS, INC.
SIGNIFICANT SUBSIDIARIES:
- ------------------------
Landry's G.P., Inc., a Delaware corporation
Landry's Limited, Inc., a Delaware corporation
Landry's Trademark, Inc., a Delaware corporation
LSRI Holdings, Inc., a Delaware corporation
Landry's Management, L.P., a Delaware limited partnership
OTHER SUBSIDIARIES NOT LISTED ON EXHIBIT 21 TO THE COMPANY'S ANNUAL REPORT ON
FORM 10-K FOR THE YEAR ENDED DECEMBER 31, 1995:
41
