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EXHIBIT 1
4,000,000 Shares
HVIDE MARINE INCORPORATED
Class A Common Stock
UNDERWRITING AGREEMENT
January , 1997
XXXXXXXXX, XXXXXX & XXXXXXXX
SECURITIES CORPORATION
HOWARD, WEIL, LABOUISSE,
XXXXXXXXXX INCORPORATED
As representatives of the
several underwriters
named in Schedule I hereto
c/x Xxxxxxxxx, Lufkin & Xxxxxxxx
Securities Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Dear Sirs:
Hvide Marine Incorporated, a Florida corporation (the "Company"), proposes
to issue and sell to the several underwriters named in Schedule I hereto (the
"Underwriters") 3,860,584 shares of Class A Common Stock, par value $0.001 per
share, of the Company, and certain stockholders of the Company named in Schedule
II hereto (the "Selling Stockholders") severally propose to sell to the
Underwriters an aggregate of 139,416 shares of Class A Common Stock of the
Company (certain of which may be in the form of shares of Class B Common Stock
of the Company at the time of sale). The 3,860,584 shares to be sold by the
Company are hereinafter referred to as the "Company Shares" and the 139,416
shares to be sold by the Selling Stockholders are hereinafter referred to as the
"Stockholder Shares." The Company Shares and the Stockholder Shares are
hereinafter collectively referred to as the "Firm Shares."
The Company also proposes to issue and sell to the Underwriters not more
than 575,000 shares of Class A Common Stock (the "Company Additional Shares") to
the Underwriters, and the Hvide Family Trust II (the "Hvide Trust") proposes to
sell to the Underwriters not more than 25,000 shares of Class A Common Stock
(which may be in the form of shares of Class B Common Stock at the time of sale)
(the "Trust Additional Shares"
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and, together with the Company Additional Shares, the "Additional Shares"), if
requested by the Underwriters as provided in Section 2 hereof. The Firm Shares
and the Additional Shares are hereinafter collectively referred to as the
"Shares." The Company, the Hvide Trust and the Selling Stockholders are
hereinafter collectively referred to as the "Sellers."
1. Registration Statement and Prospectus. The Company has prepared and
filed with the Securities and Exchange Commission (the "Commission") in
accordance with the provisions of the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder (collectively, the
"Securities Act"), a registration statement on Form S-1 (File No. 333-18525)
including a prospectus relating to the Shares, which may be amended. The
registration statement as amended at the time when it becomes effective,
including information (if any) deemed to be part of the registration statement
at the time of effectiveness pursuant to Rule 430A under the Securities Act and
a registration statement (if any) filed pursuant to Rule 462(b) under the
Securities Act increasing the size of the offering registered under the
Securities Act, is hereinafter referred to as the Registration Statement; and
the prospectus in the form first used to confirm sales of Shares is hereinafter
referred as the Prospectus.
2. Agreements to Sell and Purchase. On the basis of the representations and
warranties contained in this Agreement, and subject to its terms and conditions,
the Company hereby agrees to issue and sell the Company Shares to the several
Underwriters and each Selling Stockholder, severally and not jointly, hereby
agrees to sell to the several Underwriters the number of Stockholder Shares set
forth opposite such Selling Stockholder's name in Schedule II hereto, and each
of the Underwriters, severally and not jointly, hereby agrees to purchase from
the Company and each Selling Stockholder at a price per share of $_____ (the
"Purchase Price") the respective number of Company Shares and Stockholder Shares
(subject to adjustments to eliminate fractional shares as the Representatives
may determine) that bears the same proportion to the number of Company Shares
and Stockholder Shares to be sold by the Company or such Selling Stockholder, as
the case may be, as the number of Firm Shares set forth in Schedule I hereto
opposite the name of such Underwriter bears to the total number of Firm Shares
set forth opposite the names of all Underwriters in Schedule I hereto.
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company hereby agrees to
issue and sell to the Underwriters the Company Additional Shares, and the Hvide
Trust hereby agrees to sell to the Underwriters the Trust Additional Shares, and
each of the Underwriters shall have the right to purchase, severally and not
jointly, up to 575,000 Company Additional Shares from the Company at the
Purchase Price and up to 25,000 Trust Additional Shares from the Hvide Trust at
the Purchase Price. Additional Shares may be purchased solely for the purpose of
covering over allotments made in connection with the offering of the Firm
Shares. The Underwriters may exercise their right to purchase Additional Shares
in whole or in part from time to time by giving written notice thereof to the
Company and the Hvide Trust within 30 days after the date of this Agreement. The
Representatives shall give any such notice on behalf of the Underwriters and
such notice shall specify the aggregate number of Additional Shares to be
purchased pursuant to such exercise and the date for payment and delivery
thereof. The date
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specified in any such notice shall be a business day (i) no earlier than the
Closing Date (as hereinafter defined) and (ii) no later than 10 business days
after such notice has been given. If any Additional Shares are to be purchased,
each Underwriter, severally and not jointly, agrees to purchase from the Hvide
Trust the number of Trust Additional Shares (subject to such adjustments to
eliminate fractional shares as the Representatives may determine) which bears
the same proportion to the total number of Trust Additional Shares to be
purchased by the Underwriters from the Hvide Trust as the number of Firm Shares
set forth opposite the name of such Underwriter in Schedule I hereto bears to
the total number of Firm Shares. If more than 25,000 Additional Shares are to be
purchased, each Underwriter, severally and not jointly, agrees to purchase from
the Company the number of Company Additional Shares (subject to such adjustments
to eliminate fractional shares as the Representatives may determine) which bears
the same proportion to the total number of Company Additional Shares to be
purchased by the Underwriters from the Company as the number of Firm Shares set
forth opposite the name of such Underwriter in Schedule I hereto bears to the
total number of Firm Shares.
The Company shall, concurrently with the execution of this Agreement,
deliver an agreement executed by (i) each of the directors and officers of the
Company and (ii) each stockholder listed on Annex 1 hereto, pursuant to which
each such person agrees, not to offer, sell, contract to sell, grant any option
to purchase, or otherwise dispose of any Class A Common Stock or other common
stock of the Company or any securities convertible into or exercisable or
exchangeable for such Class A Common Stock or other common stock of the Company
(collectively, the "Common Stock") or in any other manner transfer all or a
portion of the economic consequences associated with the ownership of any such
Common Stock, except to the Underwriters pursuant to this Agreement, for a
period of 90 days after the date of the Prospectus without the prior written
consent of Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation. Notwithstanding
the foregoing, during such period (i) the Company may grant options to purchase
shares of Class A Common Stock pursuant to the Company's existing stock option
plans and (ii) the Company may issue shares of its Common Stock pursuant to its
employee stock purchase plan and upon the exercise of an option or warrant or
the conversion of a security outstanding on the date hereof.
3. Terms of Public Offering. The Sellers are advised by you that the
Underwriters propose (i) to make a public offering of their respective portions
of the Shares as soon after the effective date of the Registration Statement as
in your judgment is advisable and (ii) initially to offer the Shares upon the
terms set forth in the Prospectus.
4. Delivery and Payment. Delivery to the Underwriters of and payment for
the Firm Shares shall be made at 10:00 a.m., New York City time, on the third
business day, unless otherwise permitted or required by the Commission pursuant
to Rule 15c6-1 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), following the date of the offering (the "Closing Date"), at
such place as you shall designate. The Closing Date and the location of delivery
of and the form of payment for the Firm Shares may be varied by agreement
between you and the Company.
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Delivery to the Underwriters of and payment for any Additional Shares to be
purchased by the Underwriters shall be made at such place as you shall designate
at 10:00 a.m., New York City time, on the date specified in the applicable
exercise notice given by you pursuant to Section 2 (an "Option Closing Date").
Any such Option Closing Date and the location of delivery of and the form of
payment for such Additional Shares may be varied by agreement between you and
the Company.
Certificates for the Shares shall be registered in such names and issued in
such denominations as you shall request in writing not later than two (2) full
business days prior to the Closing Date or an Option Closing Date, as the case
may be. Such certificates shall be made available to you for inspection not
later than 9:30 a.m., New York City time, on the business day next preceding the
Closing Date or an Option Closing Date, as the case may be. Certificates in
definitive form evidencing the Shares shall be delivered to you on the Closing
Date or an Option Closing Date, as the case may be, with any transfer taxes
thereon duly paid by the respective Sellers, for the respective accounts of the
several Underwriters, against payment of the Purchase Price therefor by
certified or official bank checks payable in New York Clearing House funds to
the order of the applicable Sellers.
5. Agreements of the Company. The Company agrees with you:
(a) To use its best efforts to cause the Registration Statement to
become effective at the earliest possible time.
(b) To advise you promptly and, if requested by you, to confirm such
advice in writing, (i) when the Registration Statement has become
effective and when any post-effective amendment to it becomes effective,
(ii) of any request by the Commission for amendments to the Registration
Statement or amendments or supplements to the Prospectus or for additional
information, (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of the
suspension of qualification of the Shares for offering or sale in any
jurisdiction, or the initiation of any proceeding for such purposes, and
(iv) of the happening of any event during the period referred to in
paragraph (e) below which makes any statement of a material fact made in
the Registration Statement or the Prospectus untrue or which requires the
making of any additions to or changes in the Registration Statement or the
Prospectus in order to make the statements therein not misleading. If at
any time the Commission shall issue any stop order suspending the
effectiveness of the Registration Statement, the Company will make every
reasonable effort to obtain the withdrawal or lifting of such order at the
earliest possible time.
(c) To furnish to you, without charge, three signed copies of the
Registration Statement as first filed with the Commission and of each
amendment to it, including all exhibits, as you may reasonably request,
and to furnish to you and each Underwriter designated by you such number
of conformed copies of the Registration Statement as so filed and of each
amendment to it, without exhibits, as you may reasonably request.
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(d) Not to file any amendment or supplement to the Registration
Statement, whether before or after the time when it becomes effective, or
to make any amendment or supplement to the Prospectus of which you shall
not previously have been advised or to which you shall reasonably object;
and to prepare and file with the Commission, promptly upon your reasonable
request, any amendment to the Registration Statement or supplement to the
Prospectus which may be necessary or advisable in connection with the
distribution of the Shares by you, and to use its best efforts to cause
any such amendment to become promptly effective.
(e) Promptly after the Registration Statement becomes effective, and
from time to time thereafter for such period as in the opinion of counsel
for the Underwriters a prospectus is required by law to be delivered in
connection with sales by an Underwriter or a dealer, to furnish to each
Underwriter and dealer as many copies of the Prospectus (and of any
amendment or supplement to the Prospectus) as such Underwriter or dealer
may reasonably request.
(f) If during the period specified in paragraph (e) any event shall
occur as a result of which, in the opinion of counsel for the Underwriters
it becomes necessary to amend or supplement the Prospectus in order to
make the statements therein, in the light of the circumstances when the
Prospectus is delivered to a purchaser, not misleading, or if it is
necessary to amend or supplement the Prospectus to comply with any law,
forthwith to prepare and file with the Commission an appropriate amendment
or supplement to the Prospectus so that the statements in the Prospectus,
as so amended or supplemented, will not in the light of the circumstances
when it is so delivered, be misleading, or so that the Prospectus will
comply with law, and to furnish to each Underwriter and to such dealers as
you shall specify, such number of copies thereof as such Underwriter or
dealers may reasonably request.
(g) Prior to any public offering of the Shares, to cooperate with you
and counsel for the Underwriters in connection with the registration or
qualification of the Shares for offer and sale by the several Underwriters
and by dealers under the state securities or Blue Sky laws of such
jurisdictions as you may request, to continue such qualification in effect
so long as required for distribution of the Shares and to file such
consents to service of process or other documents as may be necessary in
order to effect such registration or qualification.
(h) To mail and make generally available to its stockholders as soon
as reasonably practicable an earnings statement covering a period of at
least twelve months after the effective date of the Registration Statement
(but in no event commencing later than 90 days after such date) which
shall satisfy the provisions of Section 11(a) of the Securities Act, and
to advise you in writing when such statement has been so made available.
(i) During the period of five years after the date of this Agreement,
(i) to mail as soon as reasonably practicable after the end of each fiscal
year to the record
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holders of its Common Stock an annual report of the Company and the
Subsidiaries meeting the requirements of the Exchange Act, all such annual
reports to include a consolidated balance sheet, a consolidated statement
of operations, a consolidated statement of cash flows and a consolidated
statement of shareholders' equity, certified by independent certified
public accountants, and (ii) to mail and make generally available as soon
as practicable after the end of each quarterly period (except for the last
quarterly period of each fiscal year) to such holders a quarterly report
meeting the requirements of the Exchange Act, all such quarterly reports
to include a consolidated balance sheet, a consolidated statement of
operations and a consolidated statement of cash flows.
(j) During the period referred to in paragraph (i), to furnish to you
as soon as available a copy of each report or other publicly available
information of the Company mailed to the holders of Common Stock or filed
with the Commission and such other publicly available information
concerning the Company and the Subsidiaries as you may reasonably request.
(k) To pay all costs, expenses, fees and taxes incident to (i) the
preparation, printing, filing and distribution under the Securities Act of
the Registration Statement (including financial statements and exhibits),
each preliminary prospectus and all amendments and supplements to any of
them prior to or during the period specified in paragraph (e), (ii) the
printing and delivery of the Prospectus and all amendments or supplements
to it during the period specified in paragraph (e), (iii) the printing and
delivery of this Agreement, the Preliminary and Supplemental Blue Sky
Memoranda and all other agreements, memoranda, correspondence and other
documents printed and delivered in connection with the offering of the
Shares (including in each case any disbursements of counsel for the
Underwriters relating to such printing and delivery), (iv) the
registration or qualification of the Shares for offer and sale under the
securities or Blue Sky laws of the several states (including in each case
the fees and disbursements of counsel for the Underwriters relating to
such registration or qualification and memoranda relating thereto), (v)
filings and clearance with the National Association of Securities Dealers,
Inc. in connection with the offering, (vi) the listing of the Shares on
the Nasdaq National Market, (vii) furnishing such copies of the
Registration Statement, the Prospectus and all amendments and supplements
thereto as may be requested for use in connection with the offering or
sale of the Shares by the Underwriters or by dealers to whom Shares may be
sold and (viii) the performance by the Sellers of their other obligations
under this Agreement.
(l) To use its best efforts to maintain the inclusion of the Common
Stock in the Nasdaq National Market (or on a national securities exchange)
for a period of five years after the effective date of the Registration
Statement.
(m) To use its best efforts to do and perform all things required or
necessary to be done and performed under this Agreement by the Company
prior to the Closing
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Date or any Option Closing Date, as the case may be, and to satisfy
all conditions precedent to the delivery of the Shares.
6. Representations and Warranties of the Company. The Company represents
and warrants to each Underwriter that:
(a) The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in effect,
and no proceedings for such purpose are pending before or threatened by
the Commission.
(b) (i) Each part of the Registration Statement, when such part
became effective, did not contain and each such part, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, (ii)
the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Securities Act and (iii) the Prospectus does not contain and, as amended
or supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and warranties
set forth in this paragraph (b) do not apply to statements or omissions in
the Registration Statement or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by such
Underwriter through you expressly for use therein.
(c) Each preliminary prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Securities Act, and each Registration
Statement (if any) filed pursuant to Rule 462(b) under the Securities Act,
complied when so filed in all material respects with the Securities Act;
and did not contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make
the statements therein, in the light of the circumstances under which they
were made, not misleading.
(d) Exhibit 21 to the Registration Statement sets forth a complete
and accurate list of all of the subsidiaries of the Company (the
"Subsidiaries"). Each of the Company and the Subsidiaries has been duly
incorporated or formed, is validly existing as a corporation, limited
liability company or partnership in good standing under the laws of its
jurisdiction of incorporation or formation and has the power and authority
to carry on its business as it is currently being conducted and to own,
lease, charter and operate its properties, including, without limitation,
the Vessels (defined herein) owned, chartered and operated by it, and each
is duly qualified and is in good standing as a foreign corporation,
limited liability company or partnership authorized to do business in each
jurisdiction in which the nature of its business or its ownership,
chartering, leasing or operation of Vessels and other property requires
such qualification, except
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where the failure to be so qualified would not have a material
adverse effect on the Company and the Subsidiaries, taken as a whole.
(e) All of the outstanding shares of capital stock of, or other
ownership interests in, each of the Subsidiaries have been duly authorized
and validly issued and are fully paid and non-assessable, and are owned by
the Company, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature.
(f) All the outstanding shares of capital stock of the Company have
been duly authorized and validly issued and are fully paid, non-assessable
and not subject to any preemptive or similar rights; and the Shares to be
issued and sold by the Company hereunder have been duly authorized and,
when issued and delivered to the Underwriters against payment therefor as
provided by this Agreement, will be validly issued, fully paid and
non-assessable, and the issuance of such Shares will not be subject to any
preemptive or similar rights.
(g) The authorized capital stock of the Company, including the Common
Stock, conforms as to legal matters to the description thereof contained
in the Prospectus.
(h) Neither the Company nor any of the Subsidiaries is in violation
of its respective charter, bylaws or other organizational or constituent
documents (collectively, "Constituent Documents") or in default in the
performance of any obligation, agreement or condition contained in any
bond, debenture, note or any other evidence of indebtedness or in any
other agreement, indenture or instrument material to the conduct of the
business of the Company and the Subsidiaries, taken as a whole, to which
the Company or any of the Subsidiaries is a party or by which it or any of
the Subsidiaries or their respective property is bound.
(i) The execution, delivery and performance of this Agreement,
compliance by the Company with all the provisions hereof and the
consummation of the Current Acquisitions (as defined in the Prospectus)
and the transactions contemplated hereby will not require any consent,
approval, authorization or other order of any court, regulatory body,
administrative agency or other governmental body (except as such may be
required under the securities or Blue Sky laws of the various states) and
will not conflict with or constitute a breach of any of the terms or
provisions of, or a default under, the Constituent Documents of the
Company or any of the Subsidiaries or any agreement, indenture or other
instrument to which it or any of the Subsidiaries is a party or by which
it or any of the Subsidiaries or their respective property is bound, or
violate or conflict with any laws, administrative regulations or rulings
or court decrees applicable to the Company, any of the Subsidiaries or
their respective property.
(j) Except as otherwise set forth in the Prospectus, there are no
material legal or governmental proceedings pending to which the Company or
any of the Subsidiaries is a party or of which any of their respective
property is the subject, and, to the best of the Company's knowledge, no
such proceedings are threatened or
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contemplated. No contract or document of a character required to be
described in the Registration Statement or the Prospectus or to be filed
as an exhibit to the Registration Statement is not so described or filed
as required.
(k) Neither the Company nor any of the Subsidiaries has violated or
is in violation of any foreign, federal, state or local law or regulation
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), nor any federal or state law relating to
discrimination in the hiring, promotion or pay of employees nor any
applicable federal or state wages and hours laws, nor any provisions of
the Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
or the rules and regulations promulgated thereunder, which in each case
might result in any material adverse change in the business, prospects,
financial condition or results of operation of the Company and the
Subsidiaries, taken as a whole.
(l) Each of the Company and the Subsidiaries has such permits,
certificates, endorsements, licenses, franchises and authorizations of
governmental or regulatory authorities ("Permits"), including, without
limitation, under any applicable Environmental Laws, as are necessary to
own, lease, charter and operate its respective Vessels and other
properties and to conduct its business; each of the Company and the
Subsidiaries has fulfilled and performed all of its material obligations
with respect to such Permits and no event has occurred which allows, or
after notice or lapse of time would allow, revocation or termination
thereof or results in any other material impairment of the rights of the
holder of any such permit; and, except as described in the Prospectus,
such Permits contain no restrictions that are materially burdensome to the
Company or any of the Subsidiaries.
(m) In the ordinary course of its business, the Company conducts a
periodic review of the effect of Environmental Laws on the business,
operations and properties of the Company and the Subsidiaries, in the
course of which it identifies and evaluates associated costs and
liabilities (including, without limitation, any capital or operating
expenditures required for clean-up or closure of properties or compliance
with Environmental Laws or any Permits or any related constraints on
operating activities and any potential liabilities to third parties). On
the basis of such review, the Company has reasonably concluded that such
associated costs and liabilities would not, singly or in the aggregate,
have a material adverse effect on the Company and the Subsidiaries, taken
as a whole.
(n) Except as otherwise set forth in the Prospectus or such as are
not material to the business, prospects, financial condition or results of
operation of the Company and the Subsidiaries, taken as a whole, the
Company and each of the Subsidiaries has good and marketable title, free
and clear of all liens, claims, encumbrances and restrictions except liens
for taxes not yet due and payable, to all property and assets described in
the Registration Statement as being owned by it. All leases and charters
to which the Company or any of the Subsidiaries is a party are valid
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and binding and no default has occurred or is continuing thereunder,
which might result in any material adverse change in the business,
prospects, financial condition or results of operation of the Company and
the Subsidiaries taken as a whole, and the Company and the Subsidiaries
enjoy peaceful and undisturbed possession under all such leases and
charters to which any of them is a party as lessee or charterer with such
exceptions as do not materially interfere with the use made by the Company
or such Subsidiary.
(o) Each of the Company and the Subsidiaries maintains adequate
insurance.
(p) Ernst & Young LLP are independent public accountants with respect
to the Company as required by the Securities Act.
(q) The historical financial statements, together with related
schedules and notes, set forth in the Registration Statement and the
Prospectus (and any amendment or supplement thereto), present fairly the
consolidated financial position, results of operations and changes in
financial position of the Company and the Subsidiaries on the basis stated
in the Registration Statement at the respective dates or for the
respective periods to which they apply; such statements and related
schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed therein; the pro forma financial statements
of the Company, together with the related notes, set forth in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto) have been prepared on a basis consistent with the historical
financial statements, except for the pro forma adjustments specified
therein, and have been prepared in good faith on the basis of the
assumptions described in the Registration Statement and such assumptions
are reasonable and the adjustments used therein are appropriate to give
effect to the transactions and circumstances referred to therein; and the
other financial and statistical information and data set forth in the
Registration Statement and the Prospectus (and any amendment or supplement
thereto) are, in all material respects, accurately presented and prepared
on a basis consistent with such financial statements and the books and
records of the Company.
(r) Each of the Company and the Subsidiaries has such Permits as are
necessary to own, lease, charter and operate its respective Vessels and
other properties and to conduct its business in the manner described in
the Prospectus, subject to such qualifications as may be set forth in the
Prospectus; each of the Company and the Subsidiaries has fulfilled and
performed all of its material obligations with respect to such Permits and
no event has occurred which allows, or after notice or lapse of time would
allow, revocation or termination thereof or results in any other material
impairment of the rights of the holder of any such Permit, subject in each
case to such qualification as may be set forth in the Prospectus; and,
except as described in the Prospectus, such Permits contain no
restrictions that are materially burdensome to the Company or any of the
Subsidiaries.
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(s) The Company is not an "investment company" or a company
"controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
(t) Except as disclosed in the Prospectus, no holder of any security
of the Company has any right to require registration of shares of Common
Stock or any other security of the Company.
(u) The Company has complied with all provisions of Section 517.075,
Florida Statutes (Chapter 92-198, Laws of Florida).
(v) There are no outstanding subscriptions, rights, warrants,
options, calls, convertible securities, commitments of sale or liens
related to or entitling any person to purchase or otherwise to acquire any
shares of the capital stock of, or other ownership interest in, the
Company or any Subsidiary thereof except as otherwise disclosed in the
Registration Statement.
(w) Except as disclosed in the Prospectus, there are no business
relationships or related party transactions required to be disclosed
therein by Item 404 of Regulation S-K of the Commission.
(x) There is (i) no significant unfair labor practice complaint
pending against the Company or any of the Subsidiaries or, to the best
knowledge of the Company, threatened against any of them, before the
National Labor Relations Board or any other federal, state or local labor
relations board, and no significant grievance or more significant
arbitration proceeding arising out of or under any collective bargaining
agreement is so pending against the Company or any of the Subsidiaries or,
to the best knowledge of the Company, threatened against any of them, and
(ii) no significant strike, labor dispute, slowdown or stoppage pending
against the Company or any of the Subsidiaries or, to the best knowledge
of the Company, threatened against it or any of the Subsidiaries except
for such actions specified in clause (i) or (ii) above, which, singly or
in the aggregate could not reasonably be expected to have a material
adverse effect on the Company and the Subsidiaries, taken as a whole.
(y) Each of the Company and the Subsidiaries maintains a system of
internal accounting controls sufficient to provide reasonable assurance
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 asset accountability; (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 the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences.
(z) All material tax returns required to be filed by the Company and
each of the Subsidiaries in any jurisdiction have been filed, other than
those filings being
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contested in good faith, and all material taxes, including, without
limitation, withholding taxes, penalties and interest, assessments, fees
and other charges due pursuant to such returns or pursuant to any
assessment received by the Company or any of the Subsidiaries have been
paid, other than those being contested in good faith and for which
adequate reserves have been provided.
(aa) The Company has filed a registration statement pursuant to
Section 12(g) of the Exchange Act to register the Class A Common Stock,
has filed an application to list the Shares on the Nasdaq National Market,
and has received notification that the listing has been approved, subject
to notice of issuance of the Firm Shares.
(bb) Each of the Company and the Subsidiaries that owns any of the
marine vessels described in the Prospectus (the "Vessels") is and at all
times has been a citizen of the United States within the meaning of
Section 2 of the Shipping Act, 1916, as amended, 46 X.X.X.xxx. 802 (the
"Shipping Act"), and qualified to engage in coastwise trade. During the
period that the Company or any Subsidiary has owned any of the Vessels,
none of the Vessels has been sold, chartered or otherwise transferred to
any person or entity in violation of any applicable laws, rules or
regulations. Each Vessel operated in the U.S. coastwise trade is properly
documented under the laws of the United States with all necessary
endorsements to operate in the U.S. coastwise trade and maintained and
operated in compliance with the requirements of a currently valid
Certificate of Inspection issued by the U.S. Coast Guard and the each of
the Vessels not operated in the U.S. coastwise trade is properly
documented under the laws of Panama. Each Vessel which is classed by the
American Bureau of Shipping is in class and classed in the highest
classification for vessels of the same age and type by the American Bureau
of Shipping, free of any outstanding recommendations affecting class.
7. Representations and Warranties of the Selling Stockholders. Each
Selling Stockholder severally and not jointly represents and warrants to each
Underwriter that:
(a) Such Selling Stockholder is duly formed, validly existing and in
good standing as a limited partnership under the laws of the State of
Delaware and has all necessary partnership power and authority to own,
lease and operate its properties and is duly qualified and is in good
standing as a foreign partnership registered to do business in each
jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the failure
to be so qualified would not have a material adverse effect on such
Selling Stockholder.
(b) Such Selling Stockholder is the lawful owner of the Shares to be
sold by such Selling Stockholder pursuant to this Agreement and has, and
on the Closing Date will have, good and valid title to such Shares, free
of all restrictions on transfer, liens, encumbrances, security interests
and claims whatsoever other than those imposed by the Securities Act or
Blue Sky Laws or those described in the Prospectus
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pursuant to the Custody Agreement (as defined), the Power of
Attorney (as defined) or lock-up agreement executed by such Selling
Stockholder in connection with the initial public offering of the
Company's Common Stock in August 1996.
(c) Upon delivery of and payment for such Shares pursuant to this
Agreement, good and valid title to such Shares will pass to the
Underwriters, free of all restrictions on transfer, liens, encumbrances,
security interests and claims whatsoever other than those imposed by the
Securities Act or Blue Sky Laws or as described in the Prospectus.
(d) Such Selling Stockholder has, and on the Closing Date will have,
full legal right, power and authority to enter into this Agreement and the
Custody Agreement between such Selling Stockholder and ChaseMellon
Shareholder Services, LLC, as Custodian (such agreement and each similar
agreement may be referred to herein as a "Custody Agreement"), and to
sell, assign, transfer and deliver such Shares in the manner provided
herein and therein, and this Agreement and the Custody Agreement have been
duly authorized, executed and delivered by such Selling Stockholder and
each of this Agreement and the Custody Agreement is a valid and binding
agreement of such Selling Stockholder enforceable in accordance with its
terms, except as rights to indemnity and contribution hereunder may be
limited by applicable law, and subject to bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer and similar laws of
general applicability affecting creditors' rights and to general equity
principles.
(e) The power of attorney (such power of attorney and each similar
power of attorney may be referred to herein as a "Power of Attorney")
signed by such Selling Stockholder appointing Xxxxx X. Xxxxxxxxx and
Xxxxxx X. Xxxxxxx, or any of them acting singly, as its attorney-in-fact
to the extent set forth therein with regard to the transactions
contemplated hereby and by the Registration Statement and the Custody
Agreement has been duly authorized, executed and delivered by or on behalf
of such Selling Stockholder and is a valid and binding instrument of such
Selling Stockholder enforceable in accordance with its terms, and,
pursuant to such power of attorney, such Selling Stockholder has
authorized Xxxxx X. Xxxxxxxxx and Xxxxxx X. Xxxxxxx, or any of them acting
singly, to execute and deliver on its behalf this Agreement and any other
document necessary or desirable in connection with transactions
contemplated hereby and to deliver the Shares to be sold by such Selling
Stockholder pursuant to this Agreement.
(f) Such Selling Stockholder has not taken, and will not take,
directly or indirectly, any action designed to, 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 Shares pursuant to the distribution contemplated by this Agreement,
and other than as permitted by the Securities Act, the Selling Stockholder
has not distributed and will not distribute any prospectus or other
offering material in connection with the offering and sale of the Shares.
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(g) The execution, delivery and performance of this Agreement by
such Selling Stockholder, compliance by such Selling Stockholder with all
the provisions hereof and the consummation of the transactions
contemplated hereby by such Selling Stockholder will not (i) require any
consent, approval, authorization or other order of any court, regulatory
body, administrative agency or other governmental body (except as such may
be required under the Securities Act or Blue Sky Laws), (ii) conflict with
or constitute a breach of any of the terms or provisions of, or a default
under, organizational documents of such Selling Stockholder, if not an
individual, or (except as would not have a material adverse effect) or any
agreement, indenture or other instrument to which such Selling Stockholder
is a party or by which such Selling Stockholder or property of such
Selling Stockholder is bound, or (iii) (except as would not have a
material adverse effect) violate or conflict with any laws, administrative
regulation or ruling or court decree applicable to such Selling
Stockholder or property of such Selling Stockholder.
(h) Such Selling Stockholder has reviewed such part of the
Registration Statement included in the table and the footnotes thereto
under the caption "Principal and Selling Stockholders" which specifically
relate to such Selling Stockholder and such part of the Registration
Statement does not, and will not on the Closing Date, contain any untrue
statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading.
(i) At any time during the period described in Section 5(e), if there
is any change in the information referred to in paragraph (h) above with
respect to any Selling Stockholder, then such Selling Stockholder will
promptly notify you of such change.
8. Representations and Warranties of the Hvide Trust. The Hvide Trust
represents and warrants to each Underwriter that:
(a) It is duly formed and validly existing as a trust under the laws
of the State of Florida and has all necessary power and authority to own,
lease and operate its properties and is duly registered to do business in
each jurisdiction in which the nature of its business or its ownership or
leasing of property requires such qualification, except where the failure
to be so qualified would not have a material adverse effect on the Hvide
Trust.
(b) It is the lawful owner of the Shares to be sold by it pursuant to
this Agreement and has, and on each Option Closing Date will have, good
and valid title to such Shares, free of all restrictions on transfer,
liens, encumbrances, security interests and claims whatsoever other than
those imposed by the Securities Act or Blue Sky Laws.
(c) Upon delivery of and payment for such Shares pursuant to this
Agreement, good and valid title to such Shares will pass to the
Underwriters, free of
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all restrictions on transfer, liens, encumbrances, security
interests and claims whatsoever other than those imposed by the Securities
Act or Blue Sky Laws.
(d) It has, and on each Option Closing Date will have, full legal
right, power and authority to enter into this Agreement and the Custody
Agreement, and to sell, assign, transfer and deliver such Shares in the
manner provided herein and therein, and this Agreement and the Custody
Agreement have been duly authorized, executed and delivered by the Hvide
Trust and each of this Agreement and the Custody Agreement is a valid and
binding agreement of the Hvide Trust enforceable in accordance with its
terms, except as rights to indemnity and contribution hereunder may be
limited by applicable law other than those imposed by the Securities Act
or Blue Sky Laws.
(e) The Power of Attorney signed by the Hvide Trust appointing J.
Xxxx Xxxxx and Xxxx X. Xxxxxxxx, or any of them acting singly, as its
attorney-in-fact to the extent set forth therein with regard to the
transactions contemplated hereby and by the Registration Statement and the
Custody Agreement has been duly authorized, executed and delivered by or
on behalf of the Hvide Trust and is a valid and binding instrument of the
Hvide Trust in accordance with its terms, and, pursuant to such Power of
Attorney, the Hvide Trust has authorized J. Xxxx Xxxxx and Xxxx X.
Xxxxxxxx, or any of them acting singly, to execute and deliver on its
behalf this Agreement and any other document necessary or desirable in
connection with transactions contemplated hereby and to deliver the Shares
to be sold by the Hvide Trust pursuant to this Agreement.
(f) it has not taken, and will not take, directly or indirectly, any
action designed to, 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 Shares pursuant to the
distribution contemplated by this Agreement, and other than as permitted
by the Securities Act, the Hvide Trust has not distributed and will not
distribute any prospectus or other offering material in connection with
the offering and sale of the Shares.
(g) The execution, delivery and performance of this Agreement by the
Hvide Trust, compliance by it with all the provisions hereof and the
consummation of the transactions contemplated hereby will not (i) require
any consent, approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental body (except
as such may be required under the Securities Act or Blue Sky Laws), (ii)
conflict with or constitute a breach of any of the terms or provisions of,
or a default under, organizational documents of the Hvide Trust, if not an
individual, or any agreement, indenture or other instrument to which the
Hvide Trust is a party or by which the Hvide Trust or its property is
bound, or (iii) violate or conflict with any laws, administrative
regulation or ruling or court decree applicable to the Hvide Trust or its
property.
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(h) it has reviewed such parts of the Registration Statement under
the caption "Principal and Selling Stockholders" which specifically relate
to the Hvide Trust and such part of the Registration Statement does not,
and will not on the Closing Date, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(i) At any time during the period described in Section 5(e), if there
is any change in the information referred to in paragraph (h) above, the
Hvide Trust will immediately notify you of such change.
9. Indemnification.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act, from
and against any and all losses, claims, damages, liabilities and judgments
caused by any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or the Prospectus (as amended
or supplemented if the Company shall have furnished any amendments or
supplements thereto) or any preliminary prospectus, or caused by any
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages, liabilities or
judgments are caused by any such untrue statement or omission or alleged
untrue statement or omission based upon information relating to any
Underwriters furnished in writing to the Company by or on behalf of any
Underwriter through you expressly for use therein.
(b) Each Selling Stockholder, severally and not jointly, agrees to
indemnify and hold harmless each Underwriter and each person, if any, who
controls any Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act, to the same extent as to the
foregoing indemnity from the Company, but only with reference to
information furnished to the Company by the Selling Stockholders expressly
for use in the Registration Statement, the Prospectus or any preliminary
prospectus. The Company, the Underwriters, the Hvide Trust and the Selling
Stockholders agree that, for all purposes of this Agreement, the only
information so furnished to the Company by each such Selling Stockholder is
the information which specifically relates to such Selling Stockholder
included in the table and footnotes related thereto under the caption
"Principal and Selling Stockholders." Notwithstanding anything to the
contrary contained in this paragraph (b), the indemnity provided by each
Selling Stockholder and the Hvide Trust hereunder shall be limited to the
total amount received by it pursuant to Section 2 hereof for the Shares
sold by it hereunder.
(c) The Hvide Trust agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls any Underwriter within
the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, to the same extent as to the foregoing indemnity from the
Company, but only with reference to information
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furnished to the Company by the Hvide Trust expressly for use in the
Registration Statement, the Prospectus or any preliminary prospectus. The
Company, the Underwriters, the Selling Stockholders and the Hvide Trust
agree that, for all purposes of this Agreement, the only information so
furnished to the Company by the Hvide Trust is the information which
relates to the Hvide Trust under the caption "Principal and Selling
Stockholders."
(d) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, its officers who sign the
Registration Statement and any person controlling the Company within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, each Selling Stockholder, the Hvide Trust, and each person, if any,
controlling such Selling Stockholder or the Hvide Trust within the meaning
of Section 15 of the Securities Act and Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with reference to information relating to such
Underwriter furnished in writing by or on behalf of such Underwriter
through you expressly for use in the Registration Statement, the Prospectus
or any preliminary prospectus. In case any action shall be brought against
the Company, any of its directors, any such officer or any person
controlling the Company, any Selling Stockholder or any person controlling
such Selling Stockholder based on the Registration Statement, the
Prospectus or any preliminary prospectus and in respect of which indemnity
may be sought against any Underwriter, the Underwriter shall have the
rights and duties given to the Sellers (except that if any Seller shall
have assumed the defense thereof such Underwriter shall not be required to
do so, but may employ separate counsel therein and participate in the
defense thereof but the fees and expenses of such counsel shall be at the
expense of such Underwriter), and the Company, its directors, any such
officers and any person controlling the Company, the Selling Stockholders
and any person controlling such Selling Stockholders and the Hvide Trust
and any person controlling the Hvide Trust shall have the rights and duties
given to the Underwriters, by Section 9(e).
(e) In case any action shall be brought against any Underwriter or any
person controlling such Underwriter, based upon any preliminary prospectus,
the Registration Statement or the Prospectus or any amendment or supplement
thereto and with respect to which indemnity may be sought against the
Company or any Selling Stockholder or the Hvide Trust, such Underwriter
shall promptly notify the Company and the Selling Stockholders and the
Hvide Trust in writing and the Company or the Selling Stockholders or the
Hvide Trust, as appropriate, shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such indemnified party
and payment of all fees and expenses. Any Underwriter or any such
controlling person shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Underwriter or
such controlling person unless (i) the employment of such counsel has been
specifically authorized in writing by the Company, (ii) the Company, the
Hvide Trust and the Selling Stockholders shall have failed to assume the
defense and employ counsel or (iii) the named parties to any such action
(including any impleaded
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parties) include both such Underwriter or such controlling person
and the Company, the Hvide Trust or any Selling Stockholder, as the case
may be, and such Underwriter or such controlling person shall have been
advised by such counsel that there may be one or more legal defenses
available to it which are different from or additional to those available
to the Company, the Hvide Trust or the Selling Stockholders, as the case
may be, (in which case the Company, the Hvide Trust and the Selling
Stockholders shall not have the right to assume the defense of such action
on behalf of such Underwriter or such controlling person, it being
understood, however, that the Company, the Hvide Trust and the Selling
Stockholders shall not, in connection with any one such action or separate
but substantially similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances, be liable
for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all such Underwriters and controlling
persons, which firm shall be designated in writing by Xxxxxxxxx, Lufkin &
Xxxxxxxx Securities Corporation and that all such fees and expenses shall
be reimbursed as they are incurred). A Seller shall not be liable for any
settlement of any such action effected without the written consent of such
Seller but, if settled with the written consent of such Seller, such
Seller agrees to indemnify and hold harmless any Underwriter and any such
controlling person from and against any loss or liability by reason of
such settlement. Notwithstanding the immediately preceding sentence, if in
any case where the fees and expenses of counsel are at the expense of the
indemnifying party and an indemnified party shall have requested the
indemnifying party to reimburse the indemnified party for such fees and
expenses of counsel as incurred, such indemnifying party agrees that it
shall be liable for any settlement of any action effected without its
written consent if (i) such settlement is entered into more than ten
business days after the receipt by such indemnifying party of the
aforesaid request and (ii) the indemnifying party shall have failed to
reimburse the indemnified party in accordance with such request for
reimbursement prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect
any settlement of any pending or threatened proceeding in respect of which
any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such
settlement includes an unconditional release of such indemnified party
from all liability on claims that are the subject matter of such
proceeding.
(f) If the indemnification provided for in this Section 9 is
unavailable to an indemnified party in respect of any losses, claims,
damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities and judgments (i) in
such proportion as is appropriate to reflect the relative benefits
received by the Sellers on the one hand and the Underwriters on the other
hand from the offering of the Shares or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Sellers and the
Underwriters in connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or
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judgments, as well as any other relevant equitable considerations.
The relative benefits received by the Sellers and the Underwriters shall
be deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Sellers, and the
total underwriting discounts and commissions received by the Underwriters,
bear to the total price to the public of the Shares, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault
of the Sellers 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 to state a material fact relates to
information supplied by the Company, the Hvide Trust, the Selling
Stockholders or the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The Sellers and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 9(f) were determined 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. The amount paid or payable by an indemnified party as
a result of the losses, claims, damages, liabilities or judgments referred
to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 9, (x) no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Shares 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 such untrue or
alleged untrue statement or omission or alleged omission and (y) no Selling
Stockholder or the Hvide Trust shall be required to contribute any amount
in excess of the amount by which the total amount received by it pursuant
to Section 2 hereof for the Shares sold by it hereunder exceeds the amount
of any damages which such Selling Stockholder has otherwise been required
to pay by reason of such untrue or alleged untrue statement or omission or
alleged omission. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to
this Section 9(f) are several in proportion to the respective number of
Shares purchased by each of the Underwriters hereunder and not joint.
(g) Each of the Company and the Hvide Trust hereby designates the
General Counsel of the Company at the address listed on the cover of the
Registration Statement, and each other Seller hereby designates Xxxxx X.
Xxxxxxxxx at the address for the Selling Stockholders listed in Section 13
herein, in each case as its authorized agent, upon which process may be
served in any action, suit or proceeding which may be instituted in any
state or federal court in the State of New York by any Underwriter or
person controlling an Underwriter asserting a claim for indemnification or
contribution under or pursuant to this Section 9, and each Seller will
accept the jurisdiction of such
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court in such action, and waives, to the fullest extent permitted by
applicable law, any defense based upon lack of personal jurisdiction or
venue. A copy of any such process shall be sent or given to such Seller,
at the address for notices specified in Section 13.
10. Conditions of Underwriters' Obligations. The several obligations of
the Underwriters to purchase the Firm Shares under this Agreement are subject
to the satisfaction of each of the following conditions:
(a) All the representations and warranties of the Company contained
in this Agreement shall be true and correct on the Closing Date with the
same force and effect as if made on and as of the Closing Date.
(b) The Registration Statement shall have become effective not later
than 5:00 p.m. (and in the case of a Registration Statement filed under
Rule 462(b) under the Securities Act, not later than 10:00 p.m.), New York
City time, on the date of this Agreement or at such later date and time as
you may approve in writing, and at the 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 commenced or
shall be pending before or contemplated by the Commission.
(c) (i) Since the date of the latest balance sheet included in the
Registration Statement and the Prospectus, there shall not have been any
material adverse change, or any development involving a prospective
material adverse change, in the condition, financial or otherwise, or in
the earnings, affairs or business prospects, whether or not arising in the
ordinary course of business, of the Company, (ii) since the date of the
latest balance sheet included in the Registration Statement and the
Prospectus there shall not have been any change, or any development
involving a prospective material adverse change, in the capital stock or
in the long-term debt of the Company from that set forth in the
Registration Statement and Prospectus, (iii) the Company and the
Subsidiaries shall have no liability or obligation, direct or contingent,
which is material to the Company and the Subsidiaries, taken as a whole,
other than those reflected in the Registration Statement and the
Prospectus and (iv) on the Closing Date you shall have received a
certificate dated the Closing Date, signed by J. Xxxx Xxxxx and Xxxx X.
Xxxxxxxx, in their capacities as the Chief Executive Officer and Chief
Financial Officer of the Company, respectively, confirming the matters set
forth in paragraphs (a), (b), and (c) of this Section 10.
(d) All the representations and warranties of the Selling
Stockholders contained in this Agreement shall be true and correct on the
Closing Date with the same force and effect as if made on and as of the
Closing Date and you shall have received a certificate to such effect,
dated the Closing Date, from each Selling Stockholder (which certificate
may be signed on behalf of each Selling Stockholder by any Attorney
pursuant to a Power of Attorney).
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(e) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing
Date, of Xxxx Xxxxx & Xxxxxx PC, counsel for the Company, to the effect
that:
(i) each of the Company, the Subsidiaries and the Hvide
Trust has been duly incorporated or formed, is validly
existing as a corporation, limited liability company,
partnership or trust, in good standing under the laws of its
jurisdiction of incorporation or formation and has the power
and authority required to carry on its business as it is
currently being conducted and to own, lease, charter and
operate its properties and assets, including, without
limitation, the Vessels;
(ii) each of the Company, the Subsidiaries and the Hvide
Trust is duly qualified and is in good standing as a foreign
corporation, limited liability company, partnership or trust
authorized to do business in each jurisdiction in which the
nature of its business or its ownership, chartering or leasing
of property requires such qualification, except where the
failure to be so qualified would not have a material adverse
effect on the Company and the Subsidiaries, taken as a whole;
(iii) all of the outstanding shares of capital stock of,
or other ownership interests in, each of the Company's
subsidiaries have been duly and validly authorized and issued
and are fully paid and non-assessable, and are owned by the
Company, free and clear of any security interest, claim, lien,
encumbrance or adverse interest of any nature;
(iv) all the outstanding shares of Common Stock
(including the Shares to be sold by the Selling Stockholders
and the Hvide Trust) have been duly authorized and validly
issued and are fully paid, non-assessable and not subject to
any preemptive or similar rights;
(v) the Shares to be issued and sold by the Company
hereunder have been duly authorized, and when issued and
delivered to the Underwriters against payment therefor as
provided by this Agreement, will have been validly issued and
will be fully paid and non-assessable, and the issuance of
such Shares is not subject to any preemptive or similar
rights;
(vi) this Agreement has been duly authorized, executed
and delivered by the Company and the Hvide Trust, and is a
valid and binding agreement of the Company and the Hvide Trust
enforceable in accordance with its terms (except as rights to
indemnity and contribution hereunder may be limited by
applicable law);
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(vii) the authorized capital stock of the Company,
including the Common Stock, conforms as to legal matters to
the description thereof contained in the Prospectus;
(viii) the Registration Statement has become effective
under the Securities Act, no stop order suspending its
effectiveness has been issued and no proceedings for that
purpose are, to the knowledge of such counsel, pending before
or contemplated by the Commission;
(ix) the statements under the captions "Business-Legal
Proceedings," "Business-Environmental and Other Regulation,"
"Certain Transactions," "Description of Certain Indebtedness,"
"Description of Capital Stock" and "Shares Eligible for Future
Sale" in the Prospectus and Items 14 and 15 of Part II of the
Registration Statement insofar as such statements constitute a
summary of legal matters, documents or proceedings referred to
therein, fairly present the information called for with
respect to such legal matters, documents and proceedings;
(x) To the best of such counsel's knowledge after due
inquiry, none of the Company, any of the Subsidiaries or the
Hvide Trust is in violation of its respective Constituent
Documents and none of the Company, any of the Subsidiaries or
the Hvide Trust is in default in the performance of any
obligation, agreement or condition contained in any bond,
debenture, note or any other evidence of indebtedness or in
any other agreement, indenture or instrument material to the
conduct of the business of the Company and the Subsidiaries,
taken as a whole, or the Hvide Trust, to which any of such
entities is a party or by which any of such entities or their
respective property is bound;
(xi) the execution, delivery and performance of this
Agreement by the Company and the Hvide Trust, compliance by
the Company and the Hvide Trust with all the provisions hereof
and the consummation of the Current Acquisitions and the
transactions contemplated hereby will not require any consent,
approval, authorization or other order of any court,
regulatory body, administrative agency or other governmental
body (except as such may be required under the Securities Act
or other securities or Blue Sky laws) and will not conflict
with or constitute a breach of any of the terms or provisions
of, or a default under, the Constituent Documents of the
Company, any of the Subsidiaries or the Hvide Trust or any
agreement, indenture or other instrument to which the Company,
any of the Subsidiaries or the Hvide Trust is a party or by
which the Company, any of the Subsidiaries, the Hvide Trust or
their respective properties are bound, or violate or conflict
with any laws, administrative regulations or rulings or
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court decrees applicable to the Company, any of the
Subsidiaries, the Hvide Trust or their respective properties;
(xii) each of the Company and any Subsidiaries that owns
any of the Vessels is, and during all relevant times has been,
a citizen of the United States within the meaning of Section 2
of the Shipping Act and qualified to own and operate vessels
engaged in U.S. coastwise trade; each of the Vessels
identified in the Prospectus as being owned, operated or
managed by the Company and engaged in U.S. coastwise trade is
properly documented under the laws of the United States with
all necessary endorsements to operate in the U.S. coastwise
trade; the Company is the owner of record of each Vessel
identified in the Prospectus as being owned by it, free and
clear of all liens, claims and encumbrances of record, other
than those described in the Prospectus;
(xiii) after due inquiry, such counsel does not know of
any legal or governmental proceeding pending or threatened to
which the Company or any of the Subsidiaries is a party or to
which any of their respective property is subject which is
required to be described in the Registration Statement or the
Prospectus and is not so described, or of any contract or
other document which is required to be described in the
Registration Statement or the Prospectus or is required to be
filed as an exhibit to the Registration Statement which is not
described or filed as required;
(xiv) to the best of such counsel's knowledge, after due
inquiry, neither the Company nor any of the Subsidiaries has
violated any Environmental Laws, nor any federal or state law
relating to discrimination in the hiring, promotion or pay of
employees nor any applicable federal or state wages and hours
laws, nor any provisions of ERISA or the rules and regulations
promulgated thereunder, which in each case might result in any
material adverse change in the business, prospects, financial
condition or results of operation of the Company and the
Subsidiaries, taken as a whole;
(xv) each of the Company and the Subsidiaries has such
Permits, including, without limitation, under any applicable
Environmental Laws, as are necessary to own, lease, charter
and operate its respective Vessels and other properties and to
conduct its business in the manner described in the
Prospectus; to the best of such counsel's knowledge, after due
inquiry, each of the Company and the Subsidiaries has
fulfilled and performed all of its material obligations with
respect to such Permits and no event has occurred which
allows, or after notice or lapse of time would allow,
revocation or termination thereof or results in any other
material impairment of the rights of the holder of any such
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Permit, subject in each case to such qualification as may be
set forth in the Prospectus; and, except as described in the
Prospectus, such Permits contain no restrictions that are
materially burdensome to the Company or any of the
Subsidiaries;
(xvi) the Company is not an "investment company" or a
company "controlled" by an "investment company" within the
meaning of the Investment Company Act of 1940, as amended;
(xvii) to the best of such counsel's knowledge, after due
inquiry, no holder of any security of the Company has any
right to require registration of shares of Common Stock or any
other security of the Company, except as disclosed in the
Prospectus;
(xviii) to the best of such counsel's knowledge after
due inquiry, all leases and vessel charters to which the
Company or any of the Subsidiaries is a party are valid and
binding and, to the best of such counsel's knowledge after due
inquiry, no default has occurred or is continuing thereunder,
which might result in any material adverse change in the
business, prospects, financial condition or results of
operation of the Company and the Subsidiaries taken as a
whole, and the Company and the Subsidiaries enjoy peaceful and
undisturbed possession under all such leases and vessel
charters to which any of them is a party as lessee or
charterer with such exceptions as do not materially interfere
with the use made by the Company or such Subsidiary;
(xix) (i) the Registration Statement (including a
Registration Statement, if any, filed pursuant to Rule 462(b)
under the Securities Act) and the Prospectus and any
supplement or amendment thereto (except for financial
statements as to which no opinion need be expressed) comply as
to form in all material respects with the Securities Act, and
(ii) such counsel believes that (except for financial
statements, as aforesaid) the Registration Statement and the
prospectus included therein at the time the Registration
Statement became effective did not contain any untrue
statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading, and that the Prospectus, as
amended or supplemented, if applicable (except for financial
statements, as aforesaid) does not contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading;
(xx) the provisions set forth in Article VI, Section 7 of
the Company's Articles of the Incorporation which provide that
any purported transfer to non-U.S. citizens of shares or an
interest in shares
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of the Company represented by a "Citizen" certificate in
excess of 24.99% of the outstanding shares of each class of
capital stock are enforceable in accordance with their terms
under applicable law;
(xxi) a Custody Agreement has been duly authorized,
executed and delivered by the Hvide Trust and is a valid and
binding agreement of the Hvide Trust enforceable in accordance
with its terms, except as rights to indemnity and contribution
may be limited by applicable law or by general equity
principles;
(xxii) the Hvide Trust has full legal right, power and
authority, any approval required by law (other than any
approval imposed by Blue Sky Laws) to sell, assign, transfer
and deliver the Shares to be sold by it in the manner provided
in this Agreement and the Custody Agreement;
(xxiii) the Hvide Trust has good and valid title to the
certificates for the Shares to be sold by it and upon delivery
thereof, pursuant hereto and payment therefor, good and valid
title will pass to the Underwriters, severally, free of all
restrictions on transfer, liens, encumbrances (except as
imposed by the Securities Act or Blue Sky Laws), security
interests and claims whatsoever other than those created by
the Underwriters; and
(xxiv) the Power of Attorney signed by the Hvide Trust
appointing J. Xxxx Xxxxx and Xxxx X. Xxxxxxxx, or any of them
acting singly, as its attorney-in-fact to the extent set forth
therein with regard to the transactions contemplated hereby
and by the Registration Statement has been duly authorized,
executed and delivered by or on behalf of the Hvide Trust and
is a valid and binding instrument of the Hvide Trust
enforceable in accordance with its terms, except as to rights
to indemnity and contribution may be limited by applicable law
or by general equity principles, and pursuant to such Power of
Attorney, the Hvide Trust has authorized J. Xxxx Xxxxx and
Xxxx X. Xxxxxxxx, or any of them acting singly, to execute and
deliver on its behalf this Agreement and any other document
necessary or appropriate in connection with transactions
contemplated hereby and to deliver the Shares to be sold by it
pursuant to this Agreement.
In giving such opinion with respect to the matters covered by clause (xix)
such counsel may state that their opinion and belief are based upon their
participation in the preparation of the Registration Statement and Prospectus
and any amendments or supplements thereto and review and discussion of the
contents thereof, but are without independent check or verification except as
specified. In giving such opinion with respect to the matters covered by clause
(xii), such counsel may state that their opinion relies upon the Company's most
recent affidavit of citizenship filed with the U.S. Maritime Administration. In
giving such opinions with respect to matters of Florida law and certain of such
opinions set forth in subparagraphs (i) through (iv)
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above, such counsel may state that their opinion relies upon the opinion of
Florida counsel to the Company, and in giving certain of such opinions set forth
in subparagraphs (i) through (iv) and (xxi) through (xxiv) above, such counsel
may state that their opinion relies upon the opinion of Xxxx Xxxxxxx,
Vice-President - Legal and General Counsel of the Company. In each instance,
Xxxx Xxxxx & Xxxxxx shall deliver to the Underwriters a copy of the opinion
relied upon and state that they are justified in relying thereon. In giving such
opinions, such counsel (i) may state that when a statement is qualified by "to
the best of such counsel's knowledge" or a similar phrase, it is intended to
indicate that those attorneys in such firm who have rendered significant legal
services in connection with such firm's representation of the Company do not
have actual knowledge and (ii) may state that when a statement is qualified by
"after due inquiry" or similar phrase, it is intended to indicate that attorneys
in such firm have participated in conferences with officers and other
representatives of the Company and such firm has received written
representations from the Company or its officers regarding the subject matter
referenced in such statement.
The opinion of Xxxx Xxxxx & Xxxxxx described in paragraph (e) above shall
be rendered to you at the request of the Company and shall so state therein.
(f) You shall have received on the Closing Date an opinion
(satisfactory to you and counsel for the Underwriters), dated the Closing
Date, of counsel to each of the Selling Stockholders, to the effect that:
(i) such Selling Stockholder is duly formed, validly existing
and in good standing as a limited partnership under the laws of the
State of Delaware and has all necessary partnership power and
authority to own, lease and operate its properties and to enter into
this Agreement and is duly qualified and is in good standing as a
foreign partnership registered to do business in each jurisdiction
in which the nature of its business or its ownership or leasing of
property requires such qualification, except where the failure to be
so qualified would not have a material adverse effect on such
Selling Stockholder.
(ii) this Agreement has been duly authorized, executed and
delivered by such Selling Stockholder and is a valid and binding
agreement of such Selling Stockholder enforceable in accordance with
its terms, except as rights to indemnity and contribution hereunder
may be limited by applicable law, and subject to bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and
similar laws of general applicability affecting creditors' rights
and to general equity principles;
(iii) the execution, delivery and performance of this Agreement
by such Selling Stockholder, compliance by such Selling Stockholder
with all the provisions hereof and the consummation of the
transactions contemplated hereby by such Selling Stockholder will
not require any consent, approval, authorization or other order of
any court, regulatory body, administrative agency or other
governmental body (except as such may be required under the
Securities Act or
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27
other securities or Blue Sky laws) and will not conflict with
or constitute a breach of any of the terms or provisions of, or a
default under, the Constituent Documents of each Selling Stockholder
or (except as would not have a material adverse effect) any
agreement, indenture or other instrument to which such Selling
Stockholder is a party or by which each Selling Stockholder or its
properties are bound, or (except as would not have a material
adverse effect) violate or conflict with any laws, administrative
regulations or rulings or court decrees applicable to such Selling
Stockholder or its properties;
(iv) the Custody Agreement has been duly authorized, executed
and delivered by such Selling Stockholder and is a valid and binding
agreement of such Selling Stockholder enforceable in accordance with
its terms, except as rights to indemnity and contribution may be
limited by applicable law or by general equity principles;
(v) such Selling Stockholder has full legal right, power and
authority, any approval required by law (other than any approval
imposed by Blue Sky Laws) to sell, assign, transfer and deliver the
Shares to be sold by it in the manner provided in this Agreement and
the Custody Agreement;
(vi) such Selling Stockholder has good and valid title to the
certificates for the Shares to be sold by it and upon delivery
thereof, pursuant hereto and payment therefor, good and valid title
will pass to the Underwriters, severally, free of all restrictions
on transfer, liens, encumbrances (except as imposed by the
Securities Act or Blue Sky Laws), security interests and claims
whatsoever other than those created by the Underwriters or described
in the Prospectus; and
(vii) the power of attorney signed by such Selling Stockholder
appointing Xxxxx X. Xxxxxxxxx and Xxxxxx X. Xxxxxxx, or any of them
acting singly, as its attorney-in-fact to the extent set forth
therein with regard to the transactions contemplated hereby and by
the Registration Statement (each, a "Power of Attorney") has been
duly authorized, executed and delivered by or on behalf of such
Selling Stockholder and is a valid and binding instrument of such
Selling Stockholder enforceable in accordance with its terms, except
as to rights to indemnity and contribution may be limited by
applicable law or by general equity principles, and pursuant to such
Power of Attorney, such Selling Stockholder has authorized Xxxxx X.
Xxxxxxxxx and Xxxxxx X. Xxxxxxx, or any of them acting singly, to
execute and deliver on its behalf this Agreement and any other
document necessary or appropriate in connection with transactions
contemplated hereby and to deliver the Shares to be sold by it
pursuant to this Agreement.
(g) You shall have received on the Closing Date an opinion, dated
the Closing Date, of Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P., counsel
for the Underwriters, in form and substance satisfactory to the
Underwriters, and Akin, Gump,
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Xxxxxxx, Xxxxx & Xxxx, L.L.P. shall have received such documentation
and information as it requests to enable it to pass upon the matters
covered in such opinion.
(h) You shall have received a letter on and as of the Closing Date,
in form and substance satisfactory to you, from Ernst & Young LLP,
independent public accountants, with respect to the financial statements
and certain financial information contained in the Registration Statement
and the Prospectus and substantially in the form and substance of the
letter delivered to you by Ernst & Young LLP on the date of this
Agreement.
(i) The Company shall not have failed at or prior to the Closing Date
to perform or comply with any of the agreements herein contained and
required to be performed or complied with by the Company at or prior to
the Closing Date.
(j) You shall have received on the Closing Date a certificate of
class for each Vessel (dated not more than ten (10) days prior to the
Closing Date) evidencing that each such Vessel is in class and classed in
the highest classification for vessels of the same age and type by the
American Bureau of Shipping, free of any outstanding recommendations
affecting class.
The several obligations of the Underwriters to purchase any Additional
Shares hereunder are subject to the delivery to you on the applicable Option
Closing Date of such documents as you may reasonably request with respect to the
good standing of the Company, the due authorization and issuance of such
Additional Shares and other matters related to the issuance of such Additional
Shares.
11. Effective Date of Agreement and Termination. This Agreement shall
become effective upon the later of (i) execution of this Agreement and (ii)
when notification of the effectiveness of the Registration Statement has been
released by the Commission.
This Agreement may be terminated at any time prior to the Closing Date by
you by written notice to the Sellers if any of the following has occurred: (i)
since the respective dates as of which information is given in the Registration
Statement and the Prospectus, any adverse change or development involving a
prospective adverse change in the condition, financial or otherwise, of the
Company or any of the Subsidiaries or the earnings, affairs, or business
prospects of the Company or any of the Subsidiaries, whether or not arising in
the ordinary course of business, which would, in your judgment, make it
impracticable to market the Shares on the terms and in the manner contemplated
in the Prospectus, (ii) any outbreak or escalation of hostilities or other
national or international calamity or crisis or change in economic conditions or
in the financial markets of the United States or elsewhere that, in your
judgment, is material and adverse and would, in your judgment, make it
impracticable to market the Shares on the terms and in the manner contemplated
in the Prospectus, (iii) the suspension or material limitation of trading in
securities on the New York Stock Exchange, the American Stock Exchange or the
Nasdaq National Market or limitation on prices for securities on any such
exchange or Nasdaq National Market, (iv) the enactment, publication, decree or
other promulgation of any federal or state statute, regulation, rule or order of
any court or other
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29
governmental authority which in your opinion materially and adversely affects,
or will materially and adversely affect, the business or operations of the
Company or any Subsidiary, (v) the declaration of a banking moratorium by either
federal or New York State authorities or (vi) the taking of any action by any
federal, state or local government or agency in respect of its monetary or
fiscal affairs which in your opinion has a material adverse effect on the
financial markets in the United States.
If on the Closing Date or on an Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase the Firm
Shares or Additional Shares, as the case may be, which it or they have agreed to
purchase hereunder on such date and the aggregate number of Firm Shares or
Additional Shares, as the case may be, which such defaulting Underwriter or
Underwriters, as the case may be, agreed but failed or refused to purchase is
not more than one-tenth of the total number of Shares to be purchased on such
date by all Underwriters, each non-defaulting Underwriter shall be obligated
severally, in the proportion which the number of Firm Shares set forth opposite
its name in Schedule I bears to the total number of Firm Shares which all the
non-defaulting Underwriters, as the case may be, have agreed to purchase, or in
such other proportion as you may specify, to purchase the Firm Shares or
Additional Shares, as the case may be, which such defaulting Underwriter or
Underwriters, as the case may be, agreed but failed or refused to purchase on
such date; provided that in no event shall the number of Firm Shares or
Additional Shares, as the case may be, which any Underwriter has agreed to
purchase pursuant to Section 2 hereof be increased pursuant to this Section 10
by an amount in excess of one-ninth of such number of Firm Shares or Additional
Shares, as the case may be, without the written consent of such Underwriter. If
on the Closing Date or on an Option Closing Date, as the case may be, any
Underwriter or Underwriters shall fail or refuse to purchase Firm Shares, or
Additional Shares, as the case may be, and the aggregate number of Firm Shares
or Additional Shares, as the case may be, with respect to which such default
occurs is more than one-tenth of the aggregate number of Shares to be purchased
on such date by all Underwriters and arrangements satisfactory to you and the
Sellers for purchase of such Shares are not made within 48 hours after such
default, this Agreement will terminate without liability on the part of any
non-defaulting Underwriter and the applicable Sellers. In any such case which
does not result in termination of this Agreement, either you or the Sellers
shall have the right to postpone the Closing Date or the applicable Option
Closing Date, as the case may be, but in no event for longer than seven days, in
order that the required changes, if any, in the Registration Statement and the
Prospectus or any other documents or arrangements may be effected. Any action
taken under this paragraph shall not relieve any defaulting Underwriter from
liability in respect of any default of any such Underwriter under this
Agreement.
12. Agreements of the Selling Stockholders and the Hvide Trust. Each of
the Selling Stockholders and the Hvide Trust, severally and not jointly, agrees
with you and the Company:
(a) In the case of the Hvide Trust only, to pay or cause to be paid
all transfer taxes with respect to the Shares to be sold by such Seller
and, in the case of the
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30
Selling Stockholders, the Company agrees to pay all transfer taxes
with respect to the Shares to be sold by such Sellers; and
(b) To take all commercially reasonable actions in cooperation with
the Company and the Underwriters (i) to cause the Registration Statement
to become effective at the earliest possible time, (ii) to do and perform
all things to be done and performed by it under this Agreement prior to
the Closing Date and (iii) to satisfy all conditions precedent to be
satisfied by it to the delivery of the Shares pursuant to this Agreement.
13. Miscellaneous. Notices given pursuant to any provision of this
Agreement shall be addressed as follows: (a) if to the Company, to Hvide Marine
Incorporated, 0000 Xxxxx Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxx 00000, Attention: Chief
Financial Officer, (b) if to any Selling Stockholder, to such Selling
Stockholder c/o Clipper Capital Associates, L.P., Eleven Madison Avenue, 26th
Floor, New York, New York 10010, Attention: Xxxxx X. Xxxxxxxxx, (c) if to the
Hvide Trust, c/o J. Xxxx Xxxxx, Trustee, 0000 Xxxxx Xxxxx, Xxxx Xxxxxxxxxx,
Xxxxxxx 00000 and (d) if to any Underwriter or to you, to you c/x Xxxxxxxxx,
Xxxxxx & Xxxxxxxx Securities Corporation, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, Attention: Syndicate Department, or in any case to such other address as
the person to be notified may have requested in writing.
The respective indemnities, contribution agreements, representations,
warranties and other statements of the Selling Stockholders, the Hvide Trust,
the Company and its officers and directors and of the several Underwriters set
forth in or made pursuant to this Agreement shall remain operative and in full
force and effect, and will survive delivery of and payment for the Shares,
regardless of (i) any investigation, or statement as to the results thereof,
made by or on behalf of any Underwriter or by or on behalf of the Sellers, the
officers or directors of the Company or any controlling person of the Sellers,
(ii) acceptance of the Shares and payment for them hereunder and (iii)
termination of this Agreement.
If this Agreement shall be terminated by the Underwriters because of any
failure or refusal on the part of the Sellers to comply with the terms or to
fulfill any of the conditions of this Agreement, the Company agrees to reimburse
the several Underwriters for all out-of-pocket expenses (including the fees and
disbursements of counsel) reasonably incurred by them.
Except as otherwise provided, this Agreement has been and is made solely
for the benefit of and shall be binding upon the Sellers, the Underwriters, any
controlling persons referred to herein and their respective successors and
assigns, all as and to the extent provided in this Agreement, and no other
person shall acquire or have any right under or by virtue of this Agreement. The
term "successors and assigns" shall not include a purchaser of any of the Shares
from any of the several Underwriters merely because of such purchase.
This Agreement shall be governed and construed in accordance with the laws
of the State of New York.
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This Agreement may be signed in various counterparts which together shall
constitute one and the same instrument.
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Please confirm that the foregoing correctly sets forth the agreement
between the Company, the Hvide Trust, the Selling Stockholders and the several
Underwriters.
Very truly yours,
HVIDE MARINE INCORPORATED
By:
-----------------------------------
Printed Name:
-------------------------
Title:
--------------------------------
THE SELLING STOCKHOLDERS NAMED
IN SCHEDULE II HERETO
By:
-----------------------------------
Attorney-in-Fact
THE HVIDE FAMILY TRUST II
By:
-----------------------------------
Attorney-in-Fact
XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
HOWARD, WEIL, LABOUISSE, XXXXXXXXXX
INCORPORATED
Acting severally on behalf of themselves and the several
Underwriters named in Schedule I hereto
By: XXXXXXXXX, LUFKIN & XXXXXXXX
SECURITIES CORPORATION
By:
-----------------------------------
Printed Name:
-------------------------
Title:
--------------------------------
33
SCHEDULE I
NUMBER OF
UNDERWRITERS FIRM SHARES
------------ -----------
Xxxxxxxxx, Lufkin & Xxxxxxxx Securities Corporation
Howard, Weil, Labouisse, Xxxxxxxxxx Incorporated
---------
Total 4,000,000
=========
34
SCHEDULE II
Number of Shares
to be Sold to the
Selling Stockholder Underwriters
------------------- ------------
Metropolitan Life Insurance Company
Olympus Growth Fund II, L.P.
Total -----------------------
=======================
35
ANNEX I
Required Stockholder Lock-ups for 90 Days
-----------------------------------------
J. Xxxx Xxxxx
Hvide Family Trust I
Hvide Family Trust II
Xxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxx Xxxxxxx
Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxx, Xx.
Xxxxxx Xxxxxx
Xxxx Xxxxxxxxxx
Xxxx X. Xxx
Xxxxxx X. Xxxx
Xxxxxx Xxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxx
Xxxxxx X. Xxxxxx
Xxxx X. Xxxxxxxxxxx
Xxx X. Xxxxx
Xxxx X. X'Xxxxxxx
Xxxxxxxxxxx X. Xxxxxx
