EXHIBIT 1.1
GLOBAL INDUSTRIES, LTD.
(a Louisiana corporation)
UNDERWRITING AGREEMENT
March 24, 2004
9,525,000 Shares of Common Stock
(par value $0.01 per share)
Credit Lyonnais Securities (USA) Inc.
Xxxxxxx Xxxx & Company, L.L.C.
c/o Credit Lyonnais Securities (USA) Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
Global Industries, Ltd., a Louisiana corporation (the "Company"),
confirms its agreement with the Underwriters set forth on Exhibit 1 hereto (the
"Underwriter"), with respect to the issue and sale by the Company and the
purchase by the Underwriter of 9,525,000 shares of common stock, par value $0.01
per share (the "Common Stock"), of the Company (the "Firm Shares" or the
"Securities"). The Company understands that the Underwriters propose to make a
public offering of the Securities as soon as the Underwriters deem advisable
after this Agreement has been executed and delivered.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 333-86325) covering the
registration of the Securities under the Securities Act of 1933, as amended
("1933 Act"), including a related prospectus, and the registration statement has
been declared effective by the Commission. The registration statement as amended
at the time it became effective, or if a post-effective amendment has been filed
with respect thereto as amended by such post-effective amendment at the time of
its effectiveness (including in each case the information (if any) deemed to be
part of the registration statement at the time of effectiveness pursuant to Rule
430A under the 1933 Act), is hereinafter referred to as the "Registration
Statement;" the prospectus as supplemented by the prospectus supplement relating
to the sale of the Securities by the Underwriter in the form first used to
confirm sales of Securities is hereinafter referred to as the "Prospectus." Any
reference in this Agreement to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to refer to and include the
documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the 1933 Act, as of the effective date of the Registration Statement or
the date of such preliminary prospectus or the Prospectus, as the case may be
(it being understood that the specific references in this Agreement to documents
incorporated by reference in the Registration Statement or the Prospectus are
for clarifying purposes only and are not meant to limit the inclusiveness of any
definition herein), and any reference to "amend,"
"amendment" or "supplement" with respect to the Registration Statement, any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
any documents filed after such date under the Securities Exchange Act of 1934,
as amended (the "1934 Act"), and the rules and regulations of the Commission
thereunder that are deemed to be incorporated by reference therein. For purposes
of this Agreement, all references to the Registration Statement, any preliminary
prospectus, or the Prospectus or any amendment or supplement to any of the
foregoing shall be deemed to include the copy filed with the Commission pursuant
to its Electronic Data Gathering, Analysis and Retrieval system ("XXXXX").
SECTION 1
REPRESENTATIONS AND WARRANTIES
(A) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company
represents and warrants to each Underwriter as of the date hereof, and as of the
Delivery Date and agrees with each Underwriter, as follows:
(1) COMPLIANCE WITH REGISTRATION REQUIREMENTS. The
Registration Statement has become effective under the 1933 Act, no stop order
suspending the effectiveness of the Registration Statement has been issued under
the 1933 Act, no proceedings for that purpose have been instituted or are
pending or, to the knowledge of the Company, are contemplated by the Commission,
and any request on the part of the Commission for additional information has
been complied with. At the respective times that the Registration Statement and
any post-effective amendments thereto became effective and at the Delivery Date,
the Registration Statement and any amendments and supplements thereto complied
and will comply in all material respects with the requirements of the 1933 Act
and the rules and regulations promulgated thereunder (the "1933 Act
Regulations") and did not and will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading. Neither the Prospectus nor any
amendment or supplement thereto, at the time the Prospectus or any amendment or
supplement thereto was issued and at the Delivery Date, included or will include
an untrue statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The representations
and warranties in this subsection shall not apply to statements in or omissions
from the Registration Statement or the Prospectus or any amendment or supplement
thereto made in reliance upon and in conformity with information furnished to
the Company in writing by any Underwriter through Credit Lyonnais Securities
(USA) Inc. ("CLS") expressly for use in the Registration Statement or the
Prospectus or any amendment or supplement thereto. Each preliminary prospectus
and the Prospectus filed pursuant to Rule 424 under the 1933 Act, complied when
so filed in all material respects with the 1933 Act Regulations, and the
Prospectus delivered to the Underwriter for use in connection with this offering
was identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(2) INDEPENDENT ACCOUNTANTS. The accountants who certified the
financial statements and supporting schedules included or incorporated by
reference in the Registration
Statement are independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(3) FINANCIAL STATEMENTS. The consolidated financial
statements included or incorporated by reference in the Registration Statement
and the Prospectus, together with the related schedules and notes, present
fairly the financial position of the Company at the dates indicated, and the
consolidated statements of operations, stockholders' equity and cash flows of
the Company for the periods specified; such financial statements have been
prepared in conformity with generally accepted accounting principles in the
United States ("GAAP") applied on a consistent basis throughout the periods
except as set forth in the notes thereto. The supporting schedules included in
the Registration Statement present fairly in accordance with GAAP the
information required to be stated therein. Other than the historical financial
statements (and schedules) included or incorporated by reference in the
Registration Statement and Prospectus, no other historical financial statements
(or schedules) are required by the 1933 Act or the 1933 Act Regulations to be
included therein.
(4) NO MATERIAL ADVERSE CHANGE IN BUSINESS. Since the
respective dates as of which information is given in the Prospectus, except as
otherwise stated therein or in documents incorporated therein by reference,
there has been no material adverse change in the condition, financial or
otherwise, results of operations or business of the Company and the subsidiaries
taken as a whole (a "Material Adverse Effect").
(5) GOOD STANDING OF THE COMPANY. The Company has been duly
incorporated and is validly existing as a corporation in good standing under the
laws of the State of Louisiana and has the requisite corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Registration Statement and Prospectus and to enter into and
perform its obligations under this Agreement. The Company is duly qualified as a
foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a Material
Adverse Effect.
(6) GOOD STANDING OF SUBSIDIARIES. Each subsidiary of the
Company named in Annex A hereto (each a "Significant Subsidiary" and
collectively the "Significant Subsidiaries") has been duly incorporated and is
validly existing as a corporation, limited liability company or limited
liability partnership, or general or limited partnership, as the case may be, in
good standing under the laws of the jurisdiction of its organization, has all
requisite power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and Prospectus,
and is duly qualified as a foreign corporation, limited liability company or
limited liability partnership or general or limited partnership, as the case may
be, to transact business and is in good standing in each jurisdiction in which
such qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect, All of the
issued and outstanding capital stock of each of the Significant Subsidiaries
that is a corporation has been duly authorized and validly issued, is fully paid
and non-assessable, and all of the partnership and other equity
interests in each other Significant Subsidiary are validly issued and fully
paid; except as otherwise disclosed in the Registration Statement, all such
shares and interests, as the case may be, are owned by the Company, directly or
through Significant Subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity, and none of the
outstanding shares of capital stock or partnership or other equity interests of
any Significant Subsidiary was issued in violation of the preemptive or similar
rights of any security holder of such Significant Subsidiary. The Company's
Significant Subsidiaries owned in the aggregate 90% of the consolidated assets
of the Company and its subsidiaries, taken as a whole, as of December 31, 2003
and had in the aggregate more than 90% of the consolidated revenues of the
Company and its subsidiaries, taken as a whole, for the year ended December 31,
2003, in each case, as determined in accordance with generally accepted
accounting principles in the United States.
(7) CAPITALIZATION. The authorized capital stock of the
Company is, and the issued and outstanding capital stock of the Company as of
the Delivery Date, but before giving effect to the sale of the Securities
contemplated hereby, will be, as set forth in Schedule A annexed hereto, which
has been prepared from the books and records of the Company. The shares of
issued and outstanding capital stock of the Company have been duly authorized
and validly issued and are fully paid and non-assessable and, none of the
outstanding shares of capital stock of the Company was issued in violation of
the preemptive or similar rights of any security holder of the Company.
(8) OTHER SECURITIES. Except as disclosed in the Registration
Statement or the Prospectus, and other than pursuant to current director and
employee benefit plans disclosed in the Registration Statement or the
Prospectus, there are no outstanding (i) securities or obligations of the
Company or any of its Subsidiaries convertible into or exchangeable for any
capital stock of the Company or any Subsidiary, (ii) warrants, rights or options
to subscribe for or purchase from the Company or any Subsidiary any capital
stock or any such convertible or exchangeable securities or obligations, or
(iii) obligations of the Company or any Subsidiary to issue any shares of
capital stock, any such convertible or exchangeable securities or obligations,
or any such warrants, rights or option.
(9) AUTHORIZATION OF AGREEMENT AND BINDING EFFECT. This
Agreement has been duly authorized, executed and delivered by the Company and
constitutes a valid and binding obligation of the Company enforceable in
accordance with its terms except as enforcement may be limited by bankruptcy,
insolvency or other laws or court decisions relating to or affecting creditor's
rights generally, and except to the extent that enforcement of the
indemnification and contribution obligations provided for herein may be limited
by federal or state securities laws or the public policies underlying such laws.
(10) AUTHORIZATION AND DESCRIPTION OF SECURITIES. The
Securities have been duly authorized for issuance and sale to each Underwriter
pursuant to this Agreement and, when issued and delivered by the Company
pursuant to this Agreement against payment of the consideration set forth
herein, will be as of the Delivery Date, validly issued, fully paid and
non-assessable; the Common Stock conforms in all material respects to the
description thereof contained in the Registration Statement and Prospectus or in
documents incorporated therein by
reference, and such descriptions conform in all material respects to the rights
set forth in the instruments defining the same; no holder of the Securities will
be subject to personal liability by reason of being such a holder; the issuance
of the Securities is not subject to preemptive or other similar rights of any
security holder of the Company; and the Company has duly reserved a sufficient
number of shares of Common Stock for issuance of the Securities pursuant to this
Agreement and for issuance upon the exercise, conversion or exchange of all
outstanding options and other securities of the Company that are convertible
into or exchangeable for Common Stock.
(11) ABSENCE OF DEFAULTS AND CONFLICTS. Neither the Company
nor any of its Significant Subsidiaries is in violation of its charter, by-laws
or other organizational documents or in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any contract,
indenture, mortgage, deed of trust, loan or credit agreement, note, lease or
other agreement or instrument to which the Company or any of its Significant
Subsidiaries is a party or by which it or any of them may be bound, or to which
any of the property or assets of the Company or any Significant Subsidiary is
subject (collectively "Agreements and Instruments"), except for defaults that
would not result in a Material Adverse Effect. The execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated by this Agreement have been duly authorized by all necessary
corporate action and (except as contemplated by the Registration Statement or
Prospectus) do not and will not, whether with or without the giving of notice or
passage of time or both, constitute a breach of, or default under, or result in
the creation or imposition of any lien, charge or encumbrance upon any of the
properties or assets of the Company or any subsidiary pursuant to, the
Agreements and Instruments or violations of any applicable law, statute, rule,
regulation, judgment, order, writ or decree of any government, government
instrumentality or court, having jurisdiction over the Company or any Subsidiary
(except for such conflicts, breaches or defaults or liens, charges, encumbrances
or violations that would not result in a Material Adverse Effect).
(12) ABSENCE OF LABOR DISPUTE. No labor dispute with the
employees of the Company or any subsidiary exists or to the knowledge of the
Company is imminent that is reasonably likely to have a Material Adverse Effect.
(13) ABSENCE OF PROCEEDINGS. Except as described in the
Registration Statement or the Prospectus there is no action, suit, proceeding,
inquiry or investigation before or brought by any court or governmental agency
or body, now pending, against or affecting the Company or any subsidiary that
(a) is required to be disclosed in the Registration Statement, (b) individually
or in the aggregate is reasonably likely to have a Material Adverse Effect, (c)
could reasonably be expected to materially and adversely affect the ability of
the Company to perform its obligations under this Agreement, or (d) is otherwise
material in the context of the sale of the Securities; and no such actions,
suits or proceedings are to the Company's knowledge threatened or contemplated.
(14) EXHIBITS. There are no contracts or documents that are
required to be described in the Registration Statement or the Prospectus or to
be filed as exhibits thereto or to documents incorporated by reference therein
that have not been so described and filed as required.
(15) STOCK EXCHANGE. The Company's Common Stock is quoted
on the Nasdaq National Market ("Nasdaq"). The Company has given due notice to
Nasdaq of its subsequent listing of the Securities on the Nasdaq, and the Nasdaq
has not raised any issues with respect to such notice.
(16) ABSENCE OF FURTHER REQUIREMENTS. No filing with, or
authorization, approval, consent, license, order, registration, qualification or
decree of, any court or governmental authority or agency is necessary for the
performance by the Company of its obligations hereunder or in connection with
the offering, issuance or sale of the Securities under this Agreement or the
consummation of the transactions contemplated by this Agreement, except such as
have been obtained or as may be required under the 1933 Act or the 1933 Act
Regulations and foreign or state securities or blue sky laws.
(17) POSSESSION OF LICENSES AND PERMITS. The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by appropriate
federal, state, local or foreign regulatory bodies as are necessary to conduct
the business now operated by them, except where the failure to have obtained the
same would not have a Material Adverse Effect; the Company and its Significant
Subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not, singly
or in the aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except where the invalidity or
the failure to be in full force and effect would not have a Material Adverse
Effect; and neither the Company nor any of its subsidiaries has received any
notice of proceedings relating to the revocation or modification of any such
Governmental Licenses which, singly or in the aggregate, if the subject of an
unfavorable decision, ruling or finding would result in a Material Adverse
Effect.
(18) PROPERTIES. The Company and the Significant Subsidiaries
have good and marketable title to, or valid and enforceable leasehold interests
in, all of their owned and leased real properties and good and marketable title
to, or valid and enforceable leasehold interests in, all other material
properties owned or leased by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as exception, defects, mortgages, pledges,
security interests, claims, restrictions or encumbrances (a) are described in
the Registration Statement or Prospectus or (b) do not, singly or in the
aggregate, have a Material Adverse Effect.
(19) INSURANCE. The Company and each of the Significant
Subsidiaries is insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as they deem appropriate.
(20) TAXES. The Company and each of the Significant
Subsidiaries has filed all material foreign, federal, state and local tax
returns that are required to be filed or have requested extensions thereof
(except in any case in which the failure so to file would not have a Material
Adverse Effect) and has paid all taxes required to be paid by it and any other
assessment, fine or
penalty levied against it to the extent due and payable, except for any such
assessment, fine or penalty that is currently being contested in good faith or
would not have a Material Adverse Effect.
(21) INVESTMENT COMPANY ACT. The Company is not, and upon the
issuance and sale of the Securities as herein contemplated and the application
of the net proceeds therefrom as described in the Prospectus will not be, an
"investment company" as such term is defined in the Investment Company Act of
1940, as amended (the "1940 Act").
(22) ENVIRONMENTAL LAWS. There has been no storage, disposal,
generation, manufacture, refinement, transportation, handling or treatment of
hazardous substances or hazardous wastes by the Company or any of its
subsidiaries (or, to the knowledge of the Company, any of their predecessors in
interest), at, upon or from any of the property now or previously owned, leased
or operated by the Company or its Subsidiaries in violation of any applicable
law, ordinance, rule, regulation, order, judgment, decree or permit that would
require the Company or any subsidiary to undertake any remedial action under any
applicable law, ordinance, rule, regulation, order, judgment, decree or permit,
except for any violation or remedial action that would not, individually or in
the aggregate with all such violations and remedial actions, have a Material
Adverse Effect. Except for abandonment and similar costs incurred or to be
incurred in the ordinary course of business of the Company and any of its
subsidiaries, there has been no material spill, discharge, leak, emission,
injection, escape, dumping or release of any kind onto any property now or
previously owned, leased or operated by the Company or any of its subsidiaries
or into the environmental surrounding such property of any hazardous substances
or hazardous wastes due to or caused by the Company or any of its subsidiaries
(or, to the knowledge of the Company, any of their predecessors in interest),
except for any such spill, discharge, leak, emission, injection, escape, dumping
or release that would not, singularly or in the aggregate with all such spills,
discharges, leaks, emissions, injections, escapes, dumpings and releases, result
in a Material Adverse Effect; and the terms "hazardous substances," and
"hazardous wastes" shall be construed broadly to include such terms and similar
terms, all of which shall have the meanings specified in any applicable local,
state and federal laws or regulations with respect to environmental protection.
(23) REGISTRATION RIGHTS. Except as described in the
Registration Statement, there are no registration rights or other similar rights
to have any securities registered pursuant to the Registration Statement except
for the Non-Competition and Registration Rights Agreement filed as Exhibit 10.7
to the Company's Annual Report on Form 10-K for the year ended December 31,
2002. Except as described in the Registration Statement, there are no
registration rights or other similar rights to have any securities otherwise
registered by the Company under the 1933 Act except for the Non-Competition and
Registration Rights Agreement filed as Exhibit 10.7 to the Company's Annual
Report on Form 10-K for the year ended December 31, 2002. The issuance and sale
of the Securities pursuant to the Registration Statement and the Prospectus will
not violate or conflict with the terms of the Non-Competition and Registration
Rights Agreement referenced in the preceding sentence.
(24) PATENTS, TRADEMARKS, ETC. The Company and its
subsidiaries owns or possesses adequate licenses or other rights to use all
patents, trademarks, service marks, trade names, copyrights, software and design
licenses, trade secrets, manufacturing processes, other
intangible property rights and know-how (collectively "Intangibles") necessary
to entitle the Company to conduct its business as presently conducted, which if
not so owned, possessed or capable of being acquired on reasonable terms would
have a Material Adverse Effect, and the Company has not received notice of
infringement of or conflict with, asserted rights of others with respect to any
Intangibles that could reasonably be expected to have a Material Adverse Effect.
(25) INTERNAL ACCOUNTING. Subject to such exceptions, if any,
as could not reasonably be expected to have a Material Adverse Effect, the
Company maintains a system of internal accounting controls sufficient to provide
reasonable assurances that (i) transactions are executed in accordance with
management's general or specific authorizations, (ii) transactions are recorded
as necessary to permit preparation of financial statements in conformity with
generally accepted accounting principles and to maintain accountability for
assets, (iii) access to assets is permitted only in accordance with management's
general or specific authorization and (iv) the recorded accountability for
assets is compared with existing assets at reasonable intervals and appropriate
action is taken with respect to any differences; and, except as would not have a
Material Adverse Effect, none of the Company, the subsidiaries, or to the
knowledge of the Company, any employee or agent thereof, has made any payment of
funds of the Company or the subsidiaries, or received or retained any funds, and
no funds of the Company or the subsidiaries have been set aside to be used for
any payment, in each case in violation of any law, rule or regulation.
(26) SECURITIES COMPLIANCE; FLOAT. Since January 1, 2001, the
Company has timely filed all reports, schedules, forms, statements and other
documents required to be filed by it with the Commission pursuant to the
reporting requirements of the 1934 Act. The aggregate market value of the
Company's issued and outstanding Common Stock held by persons or entities that
do not, directly or indirectly, through one or more intermediaries, control or
are controlled by, or are under common control with, the Company is equal to or
exceeds $150 million.
(B) OFFICERS' CERTIFICATES. Any certificate signed by any officer of
the Company or any Subsidiaries that is delivered to the Underwriter or to
counsel for the Underwriter pursuant to this Agreement shall be deemed a
representation and warranty solely by the Company to the Underwriter as to the
matters covered thereby.
SECTION 2
SALE AND DELIVERY TO UNDERWRITERS; CLOSING
(A) SALE OF SECURITIES. On the basis of the representations and
warranties herein contained and subject to the terms and conditions herein set
forth, the Company agrees to sell to the Underwriters, and the Underwriters
agree, severally and not jointly, to purchase from the Company, at a price of
$5.05 per share, the respective numbers of Firm Shares set forth opposite the
names of the Underwriters in Exhibit 1 hereto (for an aggregate of 9,525,000
Firm Shares
and an aggregate purchase price of $48,101,250, which represents a discount of
3.8% from the anticipated initial offering price to the public).
(B) PAYMENT. Payment of the purchase price for, and the delivery of,
the Firm Shares shall be made at the offices of Credit Lyonnais Securities (USA)
Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000 or at such other place as
shall be agreed upon by CLS and the Company, at 9:00 a.m. (EST) on March 29,
2004, or such other time not later than ten business days after such date as
shall be agreed upon by CLS and the Company (such time and date of payment and
delivery being herein called "Delivery Date"). On the Delivery Date, the Company
shall deliver or cause to be delivered the Firm Shares through the facilities of
the Depository Trust Company ("DTC") for the accounts of the several
Underwriters, against payment of the purchase price therefor by wire transfer of
immediately available funds to ABA No. , Account number:
.
SECTION 3
COVENANTS OF THE COMPANY
The Company covenants with each Underwriter as follows:
(A) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS. The
Company, subject to Section 3(b) hereof, will comply with the requirements of
Rule 430A, and at any time when the Prospectus is required to be delivered under
the 1933 Act in connection with sales by each Underwriter or any dealer will
notify each Underwriter promptly, and confirm the notice in writing (i) when any
post-effective amendment to the Registration Statement shall become effective or
any supplement to the Prospectus or any amended prospectus shall have been
filed, (ii) of the receipt of any comments from the Commission, (iii) of any
request by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, and
(iv) of the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or of any order preventing or
suspending the use of any preliminary prospectus, or of the suspension of the
qualification of the Securities for offering or sale in any jurisdiction, or of
the initiation or threatening of any proceedings for any of such purposes. The
Company will promptly effect the filings necessary pursuant to Rule 424(b)(2)
(or, if applicable, Rule 424(b)(5)) not later than the second business day
following the execution and delivery of this Agreement, and will take such steps
as it deems necessary to ascertain promptly whether the form of prospectus
transmitted for filing under Rule 424(b) was received for filing by the
Commission and, in the event that it was not, it will promptly file such
prospectus. The Company will use its commercially reasonable efforts to prevent
the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(B) FILING OF AMENDMENTS. At any time when the Prospectus is required
to be delivered under the 1933 Act in connection with sales by the Underwriters
or any dealer the Company will give the Underwriters notice of its intention to
file or prepare any amendment to the Registration Statement (including any
filing under Rule 462(b)), any or any amendment, supplement or revision to
either the prospectus included in the Registration Statement at the time it
became effective or to the Prospectus, will furnish the Underwriters with copies
of any such
documents a reasonable amount of time prior to such proposed filing or use, as
the case may be, and will provide the Underwriters with a reasonable opportunity
to comment on any such proposed amendment, supplement or revision.
(C) DELIVERY OF REGISTRATION STATEMENTS. The Company has furnished or,
upon request and to the extent reasonably available, will deliver to each
Underwriter and counsel for the Underwriters, without charge, signed copies of
the Registration Statement as originally filed and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein) and
signed copies of all consents and certificates of experts, and will also deliver
to each Underwriter, without charge, a conformed copy of the Registration
Statement as originally filed and of each amendment thereto (without exhibits).
The copies of the Registration Statement and each amendment thereto furnished to
the Underwriters will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted or required by Regulation S-T.
(D) DELIVERY OF PROSPECTUS. The Company will furnish to each
Underwriter, without charge, during the period when the Prospectus is required
to be delivered under the 1933 Act or the 1934 Act, such number of copies of the
Prospectus (as amended or supplemented) as such Underwriter may reasonably
request. The Prospectus and any amendments or supplements thereto furnished to
each Underwriter will be identical to the electronically transmitted copies
thereof filed with the Commission pursuant to XXXXX, except to the extent
permitted or required by Regulation S-T.
(E) CONTINUED COMPLIANCE WITH SECURITIES LAWS. The Company will comply
with the 1933 Act and the 1933 Act Regulations so as to permit the completion of
the distribution of the Securities as contemplated in this Agreement and in the
Prospectus. If at any time when a prospectus is required by the 1933 Act to be
delivered in connection with sales of the Securities, any event shall occur or
condition shall exist as a result of which it is necessary, in the reasonable
opinion of counsel for the Underwriters or for the Company, to amend the
Registration Statement or amend or supplement the Prospectus in order that the
Prospectus will not include any untrue statements of a material fact or omit to
state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances under which they are made, or if it
shall be necessary, in the reasonable opinion of such counsel, at any such time
to amend the Registration Statement or amend or supplement the Prospectus in
order to comply with the requirements of the 1933 Act or the 1933 Act
Regulations, the Company will promptly prepare and file with the Commission,
subject to Section 3(b) hereof, such amendment or supplement as may be necessary
to correct such statement or omission or to make the Registration Statement or
the Prospectus comply with such requirements, and the Company will furnish to
each Underwriter such number of copies of such amendment or supplement as such
Underwriter may reasonably request.
(F) BLUE SKY QUALIFICATIONS. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify, if necessary, the Securities for
offering and sale under the applicable securities laws of such states as each
Underwriter may designate and to maintain such qualifications in effect so long
as required for completion of the distribution of the Securities; provided,
however, that the Company shall not be obligated to file any general consent to
service
of process or to qualify as a foreign corporation or as a dealer in securities
in any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject.
(G) RULE 158. The Company will, as soon as practicable after the date
of this Agreement (it being understood that the Company shall have until at
least 410 days after the end of the Company's current fiscal quarter), make
generally available to the Company's security holders and deliver to each
Underwriter an earnings statement of the Company and its subsidiaries (which
need not be audited) complying with Section 11(a) of the 1933 Act and the 1933
Act Regulations (including, at the option of the Company, Rule 158).
(H) USE OF PROCEEDS. The Company will use the net proceeds received
by it from the sale of the Securities in the manner specified in the Prospectus
under "Use of Proceeds."
(I) LISTING. The Company will use its commercially reasonable efforts
to effect and continue the listing of the Securities on the Nasdaq National
Market.
(J) RESTRICTION ON SALE OF SECURITIES. During a period of 60 days from
March 24, 2004, the Company will not, without the prior written consent of CLS,
offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any shares of Common Stock or securities convertible into or
exchangeable or exercisable for any shares of Common Stock, enter into any
transaction that would have the same effect, or enter into any swap, hedge or
other arrangement that transfers, in whole or in part, any of the economic
consequences of ownership of Common Stock, whether any such aforementioned
transaction is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise, or publicly disclose the intention to make any
such offer, sale, pledge or disposition, or to enter into any such transaction,
swap, hedge or other arrangement. The foregoing sentence shall not apply to (A)
the Company's sale of the Securities to be sold hereunder, (B) any shares of
Common Stock issued or options to purchase Common Stock granted under the
current employee or director benefit plans of the Company or any employee
benefit plans of the Company in which all non-officer full-time employees of the
Company are eligible to participate on substantially similar terms (and which
plans are described in the Registration Statement or Prospectus), (C) the
issuance by the Company of shares of Common Stock in exchange for or upon
conversion of currently outstanding securities of the Company in accordance with
their terms (which exchangeable or convertible securities are described in the
Registration Statement or Prospectus) or (D) the issuance of shares of capital
stock of the Company in connection with acquisitions made in the ordinary course
of business.
(K) COMPLIANCE WITH REGULATION M. The Company will not, and will use
its commercially reasonable efforts to cause its officers, directors and
affiliates not to, in violation of Regulation M under the 1934 Act (i) take,
directly or indirectly prior to completion of the distribution contemplated by
this Agreement, any action designed to stabilize or manipulate the price of any
security of the Company, or that may cause or result in, or that might in the
future reasonably be expected to cause or result in, the stabilization or
manipulation of the price of any security of the Company, to facilitate the sale
or resale of any of the Common Stock, (ii) sell, bid for, purchase or pay anyone
any compensation for soliciting purchases of the Common Stock, or
(iii) pay or agree to pay to any person any compensation for soliciting any
order to purchase any other securities of the Company.
SECTION 4
PAYMENT OF EXPENSES
(A) EXPENSES. The Company will pay all expenses incident to the
performance of its obligations under this Agreement, including (i) the
preparation and filing of the Registration Statement (including financial
statements and exhibits) as originally filed and of each amendment thereto, (ii)
the issuance and delivery of the Securities to the Underwriters, including any
stock or other transfer taxes payable upon the sale, issuance or delivery of the
Securities to the Underwriters, (iii) the preparation and delivery to the
Underwriters of copies of any preliminary prospectus, the Prospectus and any
amendments or supplements thereto, (iv) the preparation and delivery to the
Underwriter of copies of any Blue Sky Survey and any supplement thereto,
including fees and disbursements of counsel for the Underwriters in connection
therewith; provided, however, that the aggregate of all such reimbursable
expenses described in this clause (iv) shall not exceed $3,000, (v) the fees and
expenses of any transfer agent or registrar for the Securities, and (vi) the
fees and expenses incurred in connection with the listing of the Securities on
the Nasdaq National Market. Except as provided herein, each Underwriter shall
pay its own costs and expenses, including the costs and expenses of its counsel,
any transfer taxes on the sale of Securities by it, and any expenses of
advertising the offering of the Securities incurred by such Underwriter.
(B) TERMINATION OF AGREEMENT. If this Agreement is terminated by the
Underwriters in accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse the Underwriters for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the Underwriters, reasonably incurred unless such termination was
pursuant to the condition set forth in Section 5(i) and the failure to satisfy
such condition was solely attributable to the Underwriters.
SECTION 5
CONDITIONS OF UNDERWRITERS' OBLIGATIONS
The obligations of each Underwriter hereunder are subject to the
accuracy of the representations and warranties of the Company contained in
Section 1 hereof and in certificates of any officer of the Company or any
subsidiary delivered pursuant to the provisions hereof, to the performance by
the Company of its covenants and other obligations hereunder, and to the
following further conditions:
(A) EFFECTIVENESS OF REGISTRATION STATEMENT; FILING OF PROSPECTUS
SUPPLEMENT. The Registration Statement has become effective and at the Delivery
Date, no stop order suspending the effectiveness of the Registration Statement
shall have been issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission, and any request on the part of the Commission for
additional information shall have been complied with to the reasonable
satisfaction of counsel to the Underwriters. The Prospectus, as supplemented by
the prospectus supplement relating to the offering of the Securities, shall have
been filed with the
Commission pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the 1933 Act Regulations and in accordance with Section 3(a)
hereof.
(B) OPINION OF SPECIAL COUNSEL AND CAYMAN COUNSEL FOR COMPANY. At the
Delivery Date, each Underwriter shall have received the opinion, dated as of
such delivery date, of Xxxxxx & Xxxxxx L.L.P., special counsel for the Company,
in form and substance satisfactory to counsel for the Underwriters, to the
effect set forth in Exhibit A hereto with such qualifications and explanatory
notes thereto as counsel to the Underwriters may reasonably accept. At the
Delivery Date, each Underwriter shall have received the opinion, dated as of
such delivery date, of Xxxxx & Xxxxxxx, special Cayman Islands counsel for the
Company, in form and substance satisfactory to counsel for the Underwriters, to
the effect set forth in Exhibit C hereto with such qualifications and
explanatory notes thereto as counsel to the Underwriters may reasonably accept.
(C) OPINION OF GENERAL COUNSEL OF COMPANY. At the Delivery Date, each
Underwriter shall have received the opinion, dated as of such delivery date, of
Xxxxxxx Xxxxxxxxxx, general counsel of the Company, in form and substance
satisfactory to counsel for the Underwriters, to the effect set forth in Exhibit
B hereto with such qualifications and explanatory notes thereto as counsel to
the Underwriters may reasonably accept.
(D) OPINION OF COUNSEL FOR UNDERWRITERS. At the Delivery Date, each
Underwriter shall have received the opinion, dated as of such delivery date, of
Xxxxxxx Xxxx & Xxxxx LLP, counsel for the Underwriters, with respect to such
matters as CLS and such counsel deem appropriate.
(E) OFFICERS' CERTIFICATE. At the Delivery Date, there shall not have
been, since the date hereof or since the respective dates as of which
information is given in the Registration Statement or Prospectus, except as
contemplated by or described in the Prospectus, any material adverse change in
the condition, financial or otherwise, results of operations or business of the
Company and the subsidiaries taken as a whole that in the judgment of the
Underwriters makes it impractical or inadvisable to proceed, and each
Underwriter shall have received a certificate of the President or a Vice
President of the Company and of the chief financial or chief accounting officer
of the Company, dated as of such delivery date, to the effect that except as
contemplated by or described in the Prospectus or such certificates (i) there
has been no such material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct in all material respects
with the same force and effect as though expressly made at and as of such
delivery date, (iii) the Company has complied in all material respects with all
agreements and satisfied all conditions on its part to be performed or satisfied
at or prior to such delivery date, and (iv) no stop order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are pending or to such officers'
knowledge are contemplated by the Commission.
(F) ACCOUNTANT'S COMFORT LETTER. At the time of the execution of this
Agreement, each Underwriter shall have received from Deloitte& Touche LLP a
letter dated such date, in form and substance satisfactory to the Underwriters,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in the
Registration Statement and the Prospectus.
(G) BRING-DOWN COMFORT LETTER. At the Delivery Date, each Underwriter
shall have received from Deloitte & Touche LLP a letter, dated as of such
delivery date, to the effect that they reaffirm the statements made in the
letter furnished pursuant to subsection (f) of this Section, except that the
specified date referred to shall be a date not more than three business days
prior to such delivery date.
(H) APPROVAL OF LISTING. At the Delivery Date, the Securities shall
have been approved for listing on the Nasdaq National Market, subject only to
official notice of issuance.
(I) LOCK-UP AGREEMENTS. Each director and executive officer of the
Company listed on Schedule B to this Agreement shall have executed and delivered
to each Underwriter lock-up agreements substantially in form of Exhibit 2 to
this Agreement; such agreements shall not have been amended or revoked; and such
agreements shall be in full force and effect.
(J) ADDITIONAL DOCUMENTS. At the Delivery Date, counsel for the
Underwriters shall have been furnished with such documents and opinions as they
may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company in connection with the issuance and sale of the Securities
as herein contemplated shall be reasonably satisfactory in form and substance to
the Underwriters and counsel for the Underwriters.
(K) TERMINATION OF AGREEMENT. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement may be terminated by the Underwriters by notice to the Company at any
time at or prior to the Delivery Date, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and
except that Sections 1, 6, 7 and 8 shall survive any such termination and remain
in full force and effect.
SECTION 6
INDEMNIFICATION
(A) INDEMNIFICATION OF UNDERWRITERS. The Company agrees to indemnify
and hold harmless each Underwriter and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act as follows: (i) against any and all loss, liability, claim, damage
and expense whatsoever arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement (or any
amendment thereto), or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto), or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements
therein,
in the light of the circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever
to the extent of the aggregate amount paid in settlement of any litigation, or
any investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided that any
such settlement is effected with the written consent of the Company; and (iii)
against any and all expense whatsoever (including the fees and disbursements of
one counsel chosen by the Underwriters), reasonably incurred in investigating,
preparing for or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; and the Company shall reimburse each
Underwriter and each controlling person promptly upon demand for any legal or
other expenses reasonably incurred by each Underwriter and each controlling
person in connection with investigating or defending or preparing to defend
against any such loss, liability, claim, damage, or action under (i), (ii) or
(iii) above as such expenses are incurred; provided, however, that this
indemnity agreement shall not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement or omission or alleged
untrue statement or omission made in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through CLS
expressly for use in the Registration Statement (or any amendment thereto), or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto); and provided further that this indemnity agreement shall not apply to
any loss, liability, claim, damage, or expense that results from the failure or
alleged failure by the Underwriters to deliver a prospectus as required by the
1933 Act, or to the extent that it is determined in a final judgment by a court
of competent jurisdiction that such loss, liability, claim, damage, or action
resulted directly from the gross negligence or willful misconduct of the
Underwriters.
(B) INDEMNIFICATION OF COMPANY, DIRECTORS AND OFFICERS. Each
Underwriter agrees, severally and not jointly, to indemnify and hold harmless
the Company, its directors and officers, and each person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act or Section 20 of
the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this Section, as
incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto), or any preliminary prospectus or the Prospectus (or any
amendment or supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through CLS expressly
for use in the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectus (or any amendment or supplement
thereto). The Company acknowledges that the statements set forth: (1) in the
fourth paragraph on the cover page of the prospectus supplement relating to the
delivery of the Firm Shares; and (2) under the heading "Underwriting" in such
prospectus supplement, the tenth paragraph (including bullet points) related to
"stabilizing transactions," "over-allotments," "syndicate covering
transactions," "penalty bids" and "passive market making" constitute the only
information furnished in writing by or on behalf of any Underwriter through CLS
expressly for use in the Registration Statement relating to the Securities as
originally filed or in any amendment thereof, related preliminary prospectus or
the Prospectus or in any amendment thereof or supplement thereto, as the case
may be.
(C) ACTIONS AGAINST PARTIES; NOTIFICATION. Each indemnified party shall
give notice as promptly as reasonably practicable to each indemnifying party of
any action commenced against it in respect of which indemnity may be sough
thereunder, but failure to so notify an indemnifying party shall not relieve
such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this indemnity
agreement. In the case of parties indemnified pursuant to Section 6(a) above,
counsel to the indemnified parties shall be selected by the Underwriters, and,
in the case of parties indemnified pursuant to Section 6(b) above, counsel to
the indemnified parties shall be selected by the Company. An indemnifying party
may participate at its own expense in the defense of any such action; provided,
however, that counsel to the indemnifying party shall not (except with the
consent of the indemnified party) also be counsel to the indemnified party.
Notwithstanding the foregoing, if it so elects within a reasonable time after
receipt of such notice, an indemnifying party, jointly with any other
indemnifying parties receiving such notice, may assume the defense of such
action with counsel chosen by it and approved by the indemnified parties
defendant in such action (which approval shall not be unreasonably withheld),
unless such indemnified parties reasonably object to such assumption on the
ground that there may be legal defenses available to them which are different
from or in addition to those available to such indemnifying party. If an
indemnifying party assumes the defense of such action, the indemnifying party
shall not be liable for any fees and expenses of counsel for the indemnified
parties incurred thereafter in connection with such action, except that the
indemnifying party shall be liable for the reasonable costs of investigation
subsequently incurred by the indemnified party in connection with the defense.
If an indemnified party is requested or required to appear as a witness in any
action bought by or on behalf of or against an indemnifying party in which such
indemnified party is not named as a defendant, the indemnifying party agrees to
reimburse the indemnified party for all reasonable expenses incurred by it in
connection with such indemnified party's appearing and preparing to appear as
such a witness, including, without limitation, the reasonable fees and
disbursements of its legal counsel. Other than as set forth in the preceding
sentence, in no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying
party shall, without the prior written consent of the indemnified parties, which
consent shall not be unreasonably withheld, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
SECTION 7
CONTRIBUTION
If the indemnification provided for in Section 6 hereof is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Company on the one hand and the
Underwriters on the other hand from the offering of the Securities or (ii) if
the allocation provided by clause (i) is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations. The
relative benefits received by the Company the one hand and the Underwriters on
the other hand in connection with the offering of the Securities shall be deemed
to be in the same respective proportions as the total net proceeds from the
offering of the Securities (before deducting expenses) received by the Company
and the total underwriting discount received by the Underwriters, in each case
as set forth on the cover of the Prospectus, bear to the aggregate initial
public offering price of the Securities as set forth on such cover. The relative
fault of the Company on the one hand and the Underwriters on the other hand
shall be determined by reference to, among other things, whether any such untrue
or alleged untrue statement of a material fact or omission or alleged omission
to state a material fact relates to information supplied by the Company or by
the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Underwriters agree that it would not be just and equitable
if contribution pursuant to this Section were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The aggregate
amount of losses, liabilities, claims, damages and expenses incurred by an
indemnified party and referred to above in this Section 7 shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission. Notwithstanding the provisions of
this Section 7, no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been
required to pay by reason of any such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 0000 Xxx) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act or Section 20 of the
1934 Act shall have the same rights to contribution as the Company. The
Underwriters' obligations in this Section 7 to contribute are several in
proportion to their respective underwriting obligations and not joint.
SECTION 8
REPRESENTATIONS, WARRANTIES AND
AGREEMENTS TO SURVIVE DELIVERY
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company or any of the
subsidiaries submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any
Underwriter or controlling person, or by or on behalf of the Company, and shall
survive delivery of the Securities to the Underwriters.
SECTION 9
TERMINATION OF AGREEMENT
(A) TERMINATION; GENERAL. In addition to its rights to terminate this
Agreement under Section 5(e) hereof, the Underwriters may terminate this
Agreement, by notice to the Company, at any time at or prior to the Delivery
Date (i) if there has been, since the time of execution of this Agreement or
since the respective dates as of which information is given in the Prospectus,
any material adverse change in the condition, financial or otherwise, results of
operations or business of the Company and the subsidiaries taken as a whole,
whether or not arising in the ordinary course of business that in the judgment
of the Underwriter makes it impractical or inadvisable to proceed, or (ii) if
there has occurred any material adverse change in the financial markets in the
United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity, terrorist act or crisis
involving the United States or any change or development involving a prospective
change in national or international political, financial or economic conditions,
in each case the effect of which is such as to make it, in the judgment of the
majority in interest of the Underwriters including CLS, impracticable to market
the Securities or to enforce contracts for the sale of the Securities, or (iii)
if trading in any securities of the Company has been materially suspended or
materially limited by the Commission or the Nasdaq National Market, or if
trading generally on the New York Stock Exchange, or in the Nasdaq National
Market has been materially suspended or materially limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices have
been required, by any of said exchanges or by such system or by order of the
Commission, the NASD or any other governmental authority, or (iv) if a banking
moratorium has been declared by either Federal or New York authorities.
(B) LIABILITIES. If this Agreement is terminated pursuant to this
Section, such termination shall be without liability of any party to any other
party except as provided in Section 4 hereof, and provided further that Sections
1, 6, 7 and 8 shall survive such termination and remain in full force and
effect.
SECTION 10
NOTICES
All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication.
Notices to the Underwriters shall be directed to Credit Lyonnais Securities
(USA) Inc., 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, XX 00000, attention of
Corporate Finance Department, and notices to the Company shall be directed to it
at 0000 Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxx 00000, attention of General Counsel.
Notices given by telex or telephone shall be confirmed in writing.
SECTION 11
PARTIES
This Agreement shall each inure to the benefit of and be binding upon
each Underwriter and the Company and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7.
Nothing expressed or mentioned in this Agreement is intended or shall be
construed to give any person, firm or corporation, other than each Underwriter
and the Company and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of each Underwriter and the Company and their respective
successors, and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from any Underwriter shall be deemed to
be a successor by reason merely of such purchase.
SECTION 12
UNDERWRITERS; CLS
(A) DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters
default in their obligations to purchase Firm Shares hereunder on either the
Delivery Date and the number of Firm Shares that such defaulting Underwriter or
Underwriters agreed but failed to purchase does not exceed 10% of the total
number of Firm Shares that the Underwriters are obligated to purchase on such
delivery date, CLS may make arrangements satisfactory to the Company for the
purchase of such Firm Shares by other persons, including any of the other
Underwriters, but if no such arrangements are made by such delivery date, the
non-defaulting Underwriters shall be obligated severally, in proportion to their
respective commitments hereunder, to purchase the Firm Shares that such
defaulting Underwriters agreed but failed to purchase on such delivery date. If
any Underwriter or Underwriters so default and the number of Firm Shares with
respect to which such default or defaults occur exceeds 10% of the total number
of Firm Shares that the Underwriters are obligated to purchase on such Closing
Date and arrangements satisfactory to CLS and the Company for the purchase of
such Firm Shares by other persons are not made within 36 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter or the Company, except as provided in Section 9. 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.
(B) REPRESENTATION OF UNDERWRITERS. CLS will act for the several
Underwriters in connection with this financing, and any action under this
Agreement taken by CLS will be binding upon all the Underwriters.
(C) CERTAIN MATTERS RELATING TO CLS. The Company acknowledges
that CLS or any of its affiliates may currently have and may in the future have
investment and commercial banking and other relationships with persons other
than the Company (including, without limitation, potential investors in the
contemplated public offering), which persons may have certain interests with
respect to the Company. Although CLS in the course of such other relationships
may acquire information about the Company and such persons, CLS shall have no
obligation to disclose such information to the Company or to use it on the
Company's behalf. CLS is a full service securities firm engaged in securities
trading and brokerage activities, as well as providing investment banking and
financial advisory services. In the ordinary course of CLS' trading and
brokerage activities, CLS or its affiliates may at any time hold long or short
positions in debt or equity securities of the Company or other entities that may
be involved in the contemplated public offering.
SECTION 13
GOVERNING LAW AND TIME
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK. SPECIFIED TIMES OF DAY REFER TO CENTRAL
STANDARD OR DAYLIGHT TIME, AS APPROPRIATE.
SECTION 14
EFFECT OF HEADINGS
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument, along with all counterparts, will become a binding agreement
between the Underwriters and the Company in accordance with its terms.
Very truly yours,
GLOBAL INDUSTRIES, LTD.
By: /s/ Xxxxxxx X. Xxxx
--------------------------------
Name: Xxxxxxx X. Xxxx
Title: Chief Executive Officer
CONFIRMED AND ACCEPTED, as of the date first above written:
CREDIT LYONNAIS SECURITIES (USA) INC.
XXXXXXX XXXX & COMPANY, L.L.C.
Acting on behalf of themselves as the Representatives of the several
Underwriters.
By: CREDIT LYONNAIS SECURITIES (USA) INC.
By: /s/ Xxxxx Xxxx
------------------------
Name: Xxxxx Xxxx
Title: Managing Director
