Exhibit 1.1
FORM OF UNDERWRITING AGREEMENT
8,000,000 SHARES
XXXXXX OFFSHORE LLC
COMMON STOCK
UNDERWRITING AGREEMENT
Credit Suisse First Boston Corporation
Xxxxxxx Xxxxx Barney Inc.
Prudential Securities Incorporated
Xxxxxxxxxxx Xxxxxxx Securities, Inc.
As Representatives of the several Underwriters,
c/o Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
1. INTRODUCTORY. Xxxxxx Offshore, LLC, a Delaware limited liability
company, immediately following either its conversion into Xxxxxx Offshore Inc.,
a Delaware corporation, pursuant to Section 266 of the Delaware General
Corporation Law, or its merger with and into a corporate subsidiary (an
"Incorporation Event") (Xxxxxx Offshore LLC together with Xxxxxx Offshore Inc.
to be collectively referred to herein as the "Company"), proposes to sell to the
underwriters named in Schedule I hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, 8,000,000 shares of Common
Stock, par value $.01 per share (the "Common Stock") of the Company (the
"Underwritten Securities"). The Company also proposes to grant to the
Underwriters an option to purchase up to 1,200,000 additional shares of Common
Stock (the "Option Securities"; the Option Securities, together with the
Underwritten Securities, collectively being hereinafter called the
"Securities"). As part of the offering contemplated by this Agreement, Credit
Suisse First Boston Corporation (the "Designated Underwriter") has agreed to
reserve up to 5% of the Underwritten Securities purchased by it under this
Agreement for sale to the Company's directors, officers, employees and other
parties associated with the Company (collectively, "Participants"), as set forth
in the Prospectus (as defined herein) under the heading "Underwriting" (the
"Directed Share Program"). The Underwritten Securities to be sold by the
Designated Underwriter pursuant to the Directed Share Program (the "Directed
Shares") will be sold by the Designated Underwriter pursuant to this Agreement
at the public offering price. Any Directed Shares not subscribed for by the end
of the business day on which this Agreement is executed will be
offered to the public by the Underwriters as set forth in the Prospectus. The
Company hereby agrees with the several Underwriters as follows:
2. REPRESENTATIONS AND WARRANTIES.
(a) Each of the Company and its subsidiaries represents and warrants
to, and agrees with, each Underwriter as set forth below in this Section 2.
(i) A registration statement (No. 333-39418) relating
to the Securities, including a form of prospectus, has been filed with
the Securities and Exchange Commission ("Commission") and either (A)
has been declared effective under the Securities Act of 1933 ("Act")
and is not proposed to be amended or (B) is proposed to be amended by
amendment or post-effective amendment. If such registration statement
("initial registration statement") has been declared effective, either
(A) an additional registration statement ("additional registration
statement") relating to the Securities may have been filed with the
Commission pursuant to Rule 462(b) ("Rule 462(b)") under the Act and,
if so filed, has become effective upon filing pursuant to such Rule and
the Securities all have been duly registered under the Act pursuant to
the initial registration statement and, if applicable, the additional
registration statement or (B) such an additional registration statement
is proposed to be filed with the Commission pursuant to Rule 462(b) and
will become effective upon filing pursuant to such Rule and upon such
filing the Securities will all have been duly registered under the Act
pursuant to the initial registration statement and such additional
registration statement. If the Company does not propose to amend the
initial registration statement or if an additional registration
statement has been filed and the Company does not propose to amend it,
and if any post-effective amendment to either such registration
statement has been filed with the Commission prior to the execution and
delivery of this Agreement, the most recent amendment (if any) to each
such registration statement has been declared effective by the
Commission or has become effective upon filing pursuant to Rule 462(c)
("Rule 462(c)") under the Act or, in the case of the additional
registration statement, Rule 462(b). For purposes of this Agreement,
"Effective Time" with respect to the initial registration statement or,
if filed prior to the execution and delivery of this Agreement, the
additional registration statement means (A) if the Company has advised
the Representatives that it does not propose to amend such registration
statement, the date and time as of which such registration statement,
or the most recent post-effective amendment thereto (if any) filed
prior to the execution and delivery of this Agreement, was declared
effective by the Commission or has become effective upon filing
pursuant to Rule 462(c), or (B) if the Company has advised the
Representatives that it proposes to file an amendment or post-effective
amendment to such registration statement, the date and time as of which
such registration statement, as amended by such amendment or
post-effective amendment, as the case may be, is declared effective by
the Commission. If an additional registration statement has not been
filed prior to the execution and delivery of this Agreement but the
Company has advised the Representatives that it proposes to file one,
"Effective Time" with respect to such additional registration statement
means the date and time as of which such registration statement is
filed and becomes effective pursuant to Rule 462(b). "Effective Date"
with respect to the initial registration statement or the additional
registration
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statement (if any) means the date of the Effective Time thereof. The
initial registration statement, as amended at its Effective Time,
including all information contained in the additional registration
statement (if any) and deemed to be a part of the initial registration
statement as of the Effective Time of the additional registration
statement pursuant to the General Instructions of the Form on which it
is filed and including all information (if any) deemed to be a part of
the initial registration statement as of its Effective Time pursuant to
Rule 430A(b) ("Rule 430A(b)") under the Act, is hereinafter referred to
as the "Initial Registration Statement". The additional registration
statement, as amended at its Effective Time, including the contents of
the initial registration statement incorporated by reference therein
and including all information (if any) deemed to be a part of the
additional registration statement as of its Effective Time pursuant to
Rule 430A(b), is hereinafter referred to as the "Additional
Registration Statement". The Initial Registration Statement and the
Additional Registration Statement are herein referred to collectively
as the "Registration Statements" and individually as a "Registration
Statement". The form of prospectus relating to the Securities, as first
filed with the Commission pursuant to and in accordance with Rule
424(b) ("Rule 424(b)") under the Act or (if no such filing is required)
as included in a Registration Statement, is hereinafter referred to as
the "Prospectus". No document has been or will be prepared or
distributed in reliance on Rule 434 under the Act.
(ii) If the Effective Time of the Initial
Registration Statement is prior to the execution and delivery of this
Agreement: (A) on the Effective Date of the Initial Registration
Statement, the Initial Registration Statement conformed in all material
respects to the requirements of the Act and the rules and regulations
of the Commission ("Rules and Regulations") and did not include 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 not misleading, (B) on the Effective Date of the Additional
Registration Statement (if any), each Registration Statement conformed,
or will conform, in all material respects to the requirements of the
Act and the Rules and Regulations and did not include, or will not
include, any untrue statement of a material fact and did not omit, or
will not omit, to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and (C) on
the date of this Agreement, the Initial Registration Statement and, if
the Effective Time of the Additional Registration Statement is prior to
the execution and delivery of this Agreement, the Additional
Registration Statement each conforms, and at the time of filing of the
Prospectus pursuant to Rule 424(b) or (if no such filing is required)
at the Effective Date of the Additional Registration Statement in which
the Prospectus is included, each Registration Statement and the
Prospectus will conform, in all material respects to the requirements
of the Act and the Rules and Regulations, and neither of such documents
includes, or will include, any untrue statement of a material fact or
omits, or will omit, to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances they were made in the case of the Prospectus, not
misleading. If the Effective Time of the Initial Registration Statement
is subsequent to the execution and delivery of this Agreement: on the
Effective Date of the Initial Registration Statement, the Initial
Registration Statement and the Prospectus will conform in all material
respects to the requirements of the Act and the Rules and Regulations,
neither of such documents will include any untrue statement of a
material fact or will omit to state any material fact required to be
stated therein or necessary to make the statements therein, in light of
the circumstances they were made in the case of the Prospectus, not
misleading, and no Additional Registration Statement has been or will
be filed. The two preceding sentences do not apply to statements in or
omissions from a
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Registration Statement or the Prospectus based upon written information
furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the
only such information is that described as such in Section 7(b) hereof.
(iii) None of the Company, any of its subsidiaries or
the jackup drilling rigs known or to be known as the XXXXXX TONALA or
the XXXXXX DISCOVERY has sustained since the date of the latest audited
financial statements included in the Prospectus, any material loss or
interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance or from any labor dispute
or court or governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus; since the respective dates as
of which information is given in the Registration Statements and the
Prospectus, there has not been any change in the capital stock or
long-term debt of the Company or any of its subsidiaries or any
material adverse change, or any development involving a prospective
material adverse change, in or affecting the condition (financial or
other), business, properties (including, without limitation, any
construction in progress), general affairs, management, financial
position, stockholders' equity or results of operations of the Company
and its subsidiaries, taken as a whole ("Material Adverse Effect"),
otherwise than as set forth or contemplated in the Prospectus; and,
except as disclosed in or contemplated by the Prospectus, there has
been no dividend or distribution of any kind declared, paid or made by
the Company on any class of its equity interests.
(iv) The Company and its subsidiaries have good and
marketable title to all real and personal property and assets owned by
them, in each case, free and clear of all liens, encumbrances and
defects that would materially affect the value thereof or materially
interfere with the use made or to be made thereof by them; and except
as disclosed in the Prospectus, the Company and its subsidiaries hold
any leased real or personal property under valid and enforceable leases
with no exceptions that would materially interfere with the use made or
to be made thereof by them.
(v) Each of the Company and its only two limited
liability company subsidiaries, Xxxxxx Magellan LLC and Xxxxxx Columbus
LLC, has been duly formed and is an existing limited liability company
in good standing under the laws of the State of Delaware, with power
and authority (limited liability company and other) to own its
properties and conduct its business as described in the Prospectus; and
each of the Company, Xxxxxx Magellan LLC and Xxxxxx Columbus LLC is
duly qualified to do business as a foreign limited liability company in
good standing in all other jurisdictions in which its ownership or
lease of property or the conduct of its business requires such
qualification, except where the failure to be so qualified would not
have a Material Adverse Effect.
(vi) Xxxxxx Offshore Finance Corp., the Company's
only corporate subsidiary, has been duly formed and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus; and Xxxxxx
Offshore Finance Corp. is duly qualified to do business as a foreign
limited liability company in good standing in all other jurisdictions
in which its ownership or lease of property or the conduct
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of its business requires such qualification, except where the failure
to be so qualified would not have a Material Adverse Effect.
(vii) (a) The Amendment, dated as of June 14, 2000,
to the Second Amended and Restated Operating Agreement of Xxxxxx LLC,
dated as of May 1, 2000, has been duly authorized and adopted and (b)
the form of Registration Rights Agreement filed as Exhibit 10.16 to the
Initial Registration Statement, including Section 7 therein, has been
adopted and agreed to by each member of the Company and will become
effective upon an Incorporation Event.
(viii) At the Closing, the Company will have validly
effected an Incorporation Event. Such Incorporation Event has been duly
authorized by all necessary action of the members of Xxxxxx Offshore
LLC. Upon completion of such Incorporation Event, Xxxxxx Offshore Inc.
will be a corporation in good standing under the laws of the State of
Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Prospectus and
will be duly qualified to do business as a foreign corporation in good
standing in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification,
except where the failure to be so qualified would not have a Material
Adverse Effect.
(ix) On the Closing Date, there will be [ ]
authorized shares and after the Closing Date there will be [ ]
outstanding shares. The outstanding member interests of Xxxxxx Offshore
LLC have been and the outstanding shares of capital stock of Xxxxxx
Offshore Inc. will be validly authorized and issued, fully paid and
non-assessable. The outstanding shares of capital stock of the Company
will conform to the description of the capital stock of the Company in
the Prospectus after the Closing Date; and Xxxxxx Magellan LLC, Xxxxxx
Columbus LLC and Xxxxxx Finance Corp. are the only subsidiaries of the
Company, all of the outstanding shares of capital stock or and member
interests of each such subsidiary have been validly authorized and
issued, are fully paid and nonassessable and are owned directly by the
Company, free and clear of all liens, encumbrances, equities or claims.
(x) The unissued Securities to be issued and sold by
the Company to the Underwriters hereunder have been validly authorized,
and when issued and delivered against payment therefor as provided
herein, will be, validly issued, fully paid and non-assessable and will
conform to the description of the Common Stock in the Prospectus. The
equity holders of the Company have no preemptive rights with respect to
any of its issued or unissued securities. At the Execution Date, all
issued and outstanding securities of the Company have been, and at the
Closing Date, will have been, issued in compliance with all federal and
state securities laws and not in violation of any preemptive or similar
rights.
(xi) The execution, delivery and performance of this
Agreement, the issuance and sale of the Securities by the Company, the
consummation by the Company of the transactions herein contemplated as
well as the Incorporation Event (including the issuance of securities
in connection therewith) will not conflict with or result in a breach
or violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement,
stockholders' agreement or other agreement or instrument to which the
Company or any of its subsidiaries is a party or by which the
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Company or any its subsidiaries is bound or to which any of the
property or assets of the Company or any of its subsidiaries is
subject, nor will any such action result in any violation of the
provisions of the Operating Agreement, Certificate of Incorporation,
By-laws, or any other organizational documents of the Company or its
subsidiaries or any statute (including the Shipping Act of 1916, as
amended) or any order, rule or regulation of any court or governmental
agency or body, domestic or foreign, having jurisdiction over the
Company or any of its subsidiaries or any of their properties
(including the U.S. Maritime Administration and the U.S. Coast Guard);
and no consent, approval, authorization, order, registration, filing or
qualification of or with any such court or governmental agency or body
is required for the issuance and sale of the Securities, the issuance
of any securities in connection with an Incorporation Event, the
effecting of an Incorporation Event or the consummation by the Company
of the transactions contemplated by this Agreement, except the
registration under the Act of the Securities, such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Securities by the Underwriters and the approval
of the State of Delaware in connection with an Incorporation Event.
(xii) This agreement has been duly authorized,
executed and delivered by the Company and each of its subsidiaries.
(xiii) Other than as set forth in the Prospectus
there are no legal or governmental actions, suits or proceedings
pending to which the Company or any of its subsidiaries is a party or
of which any property of the Company or any of its subsidiaries is the
subject which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a Material
Adverse Effect, or would materially and adversely affect the ability of
the Company to perform its obligations under this Agreement, or which
are otherwise material in the context of the sale of the Securities;
and, to the best of the Company's knowledge, no such actions, suits or
proceedings are threatened or contemplated.
(xiv) Each of the Company, the Xxxxxx Magellan LLC
and the Xxxxxx Columbus LLC is a citizen of the United States within
the meaning of Section 2 of the Shipping Act of 1916, as amended (the
"Shipping Act") and is qualified to engage in the coastwise trade of
the United States; the issue and sale of the Securities by the Company
and the compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions herein contemplated
will not cause the Company, Xxxxxx Columbus LLC or Xxxxxx Magellan LLC
to cease to be a citizen of the United States within the meaning of
Section 2 of the Shipping Act or cause any of them to cease to be
qualified to engage in the coastwise trade of the United States.
(xv) The Company and its subsidiaries hold all
licenses, consents, certificates, permits, authorities and approvals
required by, and are in compliance with, all laws, rules and
regulations of state, Federal and foreign governmental authorities that
regulate the conduct of the business of the Company, including but not
limited to, the U.S. Maritime Administration, the Shipping Act of 1916,
as amended, and the U.S. Coast Guard, and the Company and its
subsidiaries and have not received any notice of proceedings relating
to the revocation or modification thereof, except where the receipt of
such notice or
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the failure to hold any such license, consent or approval or to be in
compliance with any such regulation would not have a Material Adverse
Effect.
(xvi) National Response Corporation ("NRC") has been
designated an Oil Spill Removal Organization by the U.S. Coast Guard
pursuant to the Oil Pollution Act of 1990.]
(xvii) Except as disclosed in the Prospectus, there
are no contracts, agreements or understandings between the Company and
any person that would give rise to a valid claim against the Company or
any Underwriter for a brokerage commission, finder's fee or other like
payment.
(xviii) Except as described in the Prospectus, there
are no contracts, agreements or understandings between the Company and
any person granting such person the right to require the Company to
file a registration statement under the Act with respect to any
securities of the Company owned or to be owned by such person or to
require the Company to include such securities in the securities
registered pursuant to a Registration Statement or in any securities
being registered pursuant to any other registration statement filed by
the Company under the Act.
(xix) No labor dispute with the employees of the
Company or its subsidiaries exists or, to the knowledge of the Company
or its subsidiaries, is imminent that might have a Material Adverse
Effect on the Company.
(xx) None of the Company or its subsidiaries is in
violation of any statute, any rule, regulation, decision or order of
any governmental agency or body or any court, domestic or foreign,
relating to the use, disposal or release of hazardous or toxic
substances or relating to the protection or restoration of the
environment or human exposure to hazardous or toxic substances
(collectively, "environmental laws"), owns or operates any real
property contaminated with any substance that is subject to any
environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any
claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the
aggregate have a material adverse effect on the Company and its
subsidiaries taken as a whole; and none of the Company or its
subsidiaries is aware of any pending investigation which might lead to
such a claim.
(xxi) The financial statements included in the
Prospectus present fairly the financial position of the Company and its
consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and such financial
statements have been prepared in conformity with the generally accepted
accounting principles in the United States applied on a consistent
basis; and the assumptions used in preparing the pro forma financial
information included in each Registration Statement and the Prospectus
provide a reasonable basis for presenting the significant effects
directly attributable to the transactions or events described therein,
the related pro forma adjustments give appropriate effect to those
assumptions, and the pro forma columns therein reflect the proper
application of those adjustments to the corresponding historical
financial statement amounts.
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(xxii) Each of (i) the Platform Construction
Agreement, dated April 6, 2000, by and between Keppel FELS Limited and
Xxxxxx Offshore LLC relating to the XXXXXX DISCOVERY, (ii) Platform
Construction Agreement, dated April 6, 2000, by and between Amfels,
Inc. and Xxxxxx Offshore LLC relating to the XXXXXX DISCOVERY, (iii)
the Master Option Agreement, dated April 6, 2000, by and between Xxxxxx
Offshore LLC, Keppel FELS Limited and Amfels, Inc., and (iv) the
Bareboat Charter Agreement, dated November 30, 1999 between Xxxxxx
Offshore LLC and Perforadora Central, S.A. de C.V. is in full force and
effect and no default or event that with notice, a lapse of time, or
both, would constitute a default, exists thereunder with respect to the
obligations of Company. To the knowledge of the Company, such contracts
are binding and enforceable against the other parties thereto, and no
default or event that with notice, a lapse of time, or both, would
constitute a default, exists thereunder with respect to the obligations
of such other parties.
(xxiii) The Company is not and, after giving effect
to the offering and sale of the Securities and the application of the
proceeds thereof as described in the Prospectus, will not be an
"investment company" as defined in the Investment Company Act of 1940.
(xxiv) The proceeds to the Company from the offering
of the Securities will be used as described in the Prospectus.
(xxv) Each of the Company and its subsidiaries
maintains insurance with respect to its properties (including those
under construction) and business of the types and in amounts generally
deemed adequate for its business and consistent with insurance coverage
maintained by similar companies and businesses, all of which insurance
is in full force and effect.
(xxvi) None of the Company, its subsidiaries, any of
their respective affiliates, or any director, officer, agent, employee
or other person, in any case, acting on behalf of the Company or its
subsidiaries has (i) used any corporate funds for any unlawful
contribution, gift, entertainment or other unlawful expense relating to
political activity; (ii) made any direct or indirect unlawful payment
to any foreign or domestic government official or employee from
corporate funds; (iii) violated or is in violation of any provision of
the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe,
rebate, payoff, influence payment, kickback or other unlawful payment.
(xxvii) The Securities have been approved for listing
on the American Stock Exchange, subject to notice of issuance.
(xxviii) The Company and its subsidiaries own,
possess or can acquire on reasonable terms, adequate trademarks, trade
names and other rights to inventions, know-how, patents, copyrights,
confidential information and other intellectual property (collectively,
"intellectual property rights") necessary to conduct the business now
operated by them, or presently employed by them, and have not received
any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that, if
determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
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(xxix) (i) the Registration Statements, the
Prospectus and any preliminary prospectus comply, and any further
amendments or supplements thereto will comply, with any applicable laws
or regulations of foreign jurisdictions in which the Prospectus or any
preliminary prospectus, as amended or supplemented, if applicable, are
distributed in connection with the Directed Share Program, and that
(ii) no authorization, approval, consent, license, order, registration
or qualification of or with any government, governmental
instrumentality or court, other than such as have been obtained, is
necessary under the securities law and regulations of foreign
jurisdictions in which the Directed Shares are offered outside the
United States.
(xxx) The Company has not offered, or caused the
Underwriters to offer, any Securities to any person pursuant to the
Directed Share Program with the specific intent to unlawfully influence
(i) a customer or supplier of the Company to alter the customer's or
supplier's level or type of business with the Company or (ii) a trade
journalist or publication to write or publish favorable information
about the Company or its products.
2. PURCHASE, SALE AND DELIVERY OF SECURITIES. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to the
Underwriters, and the Underwriters agree, severally and not jointly, to purchase
from the Company, at a purchase price of $ per share, the respective numbers of
shares of Underwritten Securities set forth opposite the names of the
Underwriters in Schedule I hereto.
The Company will deliver the Underwritten Securities to the
Representatives for the accounts of the Underwriters, against payment of the
purchase price in Federal (same day) funds by official bank check or checks or
wire transfer to an account at a bank acceptable to CSFBC drawn to the order of
the Company at the office of Xxxxxx & Xxxxxx L.L.P., at 10:00 A.M., New York
time, on July [ ], 2000, or at such other time not later than seven full
business days thereafter as CSFBC and the Company determine, such time being
herein referred to as the "First Closing Date". For purposes of Rule 15c6-1
under the Securities Exchange Act of 1934, the First Closing Date (if later than
the otherwise applicable settlement date) shall be the settlement date for
payment of funds and delivery of securities for all the Securities sold pursuant
to the offering. The certificates for the Underwritten Securities so to be
delivered will be in definitive form, in such denominations and registered in
such names as CSFBC requests and will be made available for checking and
packaging at the office of Xxxxxx & Xxxxxx L.L.P. at least 24 hours prior to the
First Closing Date.
In addition, upon written notice from CSFBC given to the Company from
time to time not more than 30 days subsequent to the date of the Prospectus, the
Underwriters may purchase all or less than all of the Optional Securities at the
purchase price per Security to be paid for the Underwritten Securities. The
Company agrees to sell to the Underwriters the number of shares of Optional
Securities specified in such notice and the Underwriters agree, severally and
not jointly, to purchase such Optional Securities. Such Optional Securities
shall be purchased for the account of each Underwriter in the same proportion as
the number of shares of Underwritten Securities set forth opposite such
Underwriter's name bears to the total number of shares of Underwritten
Securities (subject to adjustment by CSFBC to eliminate fractions) and may be
purchased by the Underwriters only for the purpose of covering over-allotments
made in connection with the sale of the Underwritten Securities. No Optional
Securities shall be sold or delivered unless the Firm
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Securities previously have been, or simultaneously are, sold and delivered. The
right to purchase the Optional Securities or any portion thereof may be
exercised from time to time and to the extent not previously exercised may be
surrendered and terminated at any time upon notice by CSFBC to the Company.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "Optional Closing Date", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "Closing Date"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Company will deliver the
Optional Securities being purchased on each Optional Closing Date to the
Representatives for the accounts of the several Underwriters, against payment of
the purchase price therefor in Federal (same day) funds by official bank check
or checks or wire transfer to an account at a bank acceptable to CSFBC drawn to
the order of the Company, at the office of Xxxxxx & Xxxxxx L.L.P. The
certificates for the Optional Securities being purchased on each Optional
Closing Date will be in definitive form, in such denominations and registered in
such names as CSFBC requests upon reasonable notice prior to such Optional
Closing Date and will be made available for checking and packaging at the office
of Xxxxxx & Xxxxxx L.L.P. at a reasonable time in advance of such Optional
Closing Date.
4. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose to offer the Securities for sale to the public as set forth
in the Prospectus.
5. AGREEMENTS.
(a) Each of the Company and its subsidiaries agrees with the several
Underwriters that:
(i) If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Company will file the Prospectus with the Commission pursuant to and in
accordance with subparagraph (1) (or, if applicable and if consented to
by CSFBC, subparagraph (4)) of Rule 424(b) not later than the earlier
of (A) the second business day following the execution and delivery of
this Agreement or (B) the fifteenth business day after the Effective
Date of the Initial Registration Statement. The Company will advise
CSFBC promptly of any such filing pursuant to Rule 424(b). If the
Effective Time of the Initial Registration Statement is prior to the
execution and delivery of this Agreement and an additional registration
statement is necessary to register a portion of the Securities under
the Act but the Effective Time thereof has not occurred as of such
execution and delivery, the Company will file the additional
registration statement or, if filed, will file a post-effective
amendment thereto with the Commission pursuant to and in accordance
with Rule 462(b) on or prior to 10:00 P.M., New York time, on the date
of this Agreement or, if earlier, on or prior to the time the
Prospectus is printed and distributed to any Underwriter, or will make
such filing at such later date as shall have been consented to by
CSFBC.
(ii) The Company will advise CSFBC promptly of any
proposal to amend or supplement the initial or any additional
registration statement as filed or the related prospectus or the
Initial Registration Statement, the Additional Registration Statement
(if any) or the Prospectus and will not effect such amendment or
supplementation without
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CSFBC's consent; and the Company will also advise CSFBC promptly of the
effectiveness of each Registration Statement (if its Effective Time is
subsequent to the execution and delivery of this Agreement) and of any
amendment or supplementation of a Registration Statement or the
Prospectus and of the institution by the Commission of any stop order
proceedings in respect of a Registration Statement and will use its
best efforts to prevent the issuance of any such stop order and to
obtain as soon as possible its lifting, if issued.
(iii) If, at any time when a prospectus relating to
the Securities is required to be delivered under the Act in connection
with sales by any Underwriter or dealer, any event occurs as a result
of which the Prospectus as then amended or supplemented would include
an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or if it is
necessary at any time to amend a Registration Statement or amend or
supplement the Prospectus to comply with the Act or the Rules and
Regulations, the Company promptly will (A) notify CSFBC of such event
and prepare and file with the Commission, subject to the first sentence
of paragraph (A)(ii) of this Section 5, at its own expense, an
amendment or supplement which will correct such statement or omission
or an amendment which will effect such compliance and (B) supply any
amended or supplemented Registration Statement or Prospectus to you in
such quantities as you may reasonably request. Neither CSFBC's consent
to, nor the Underwriters' delivery of, any such amendment or supplement
shall constitute a waiver of any of the conditions set forth in Section
6.
(iv) As soon as practicable, but not later than the
Availability Date ("s defined below), the Company will make generally
available to its security holders and to the Representatives an
earnings statement or statements of the Company and its subsidiaries
covering a period of at least 12 months beginning after the Effective
Date of the Initial Registration Statement (or, if later, the Effective
Date of the Additional Registration Statement) which will satisfy the
provisions of Section 11(A) of the Act. For the purpose of the
preceding sentence, "Availability Date" means the 45th day after the
end of the fourth fiscal quarter following the fiscal quarter that
includes such Effective Date, except that, if such fourth fiscal
quarter is the last quarter of the Company's fiscal year, "Availability
Date" means the 90th day after the end of such fourth fiscal quarter.
(v) The Company will furnish to the Representatives
and counsel for the Underwriters, without charge, signed copies of the
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the Registration Statement (without exhibits
thereto) and, so long as delivery of a prospectus by an Underwriter or
dealer may be required by the Act, as many copies of each Preliminary
Prospectus and the Prospectus and any amendment and supplement thereto
as the Representatives may reasonably request. The Prospectus shall be
so furnished on or prior to 3:00 P.M., New York time, on the business
day following the later of the execution and delivery of this Agreement
or the Effective Time of the Registration Statement. The Company will
pay the expenses of printing or other production of all documents
relating to the offering.
(vi) The Company will arrange for the qualification
of the Securities for sale under the laws of such jurisdictions as the
Representatives may designate, will maintain
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such qualifications in effect so long as required for the distribution
of the Securities and will pay the fee of the National Association of
Securities Dealers, Inc., in connection with its review of the
offering.
(vii) During the period of five years hereafter, the
Company will furnish to the Representatives and, upon request, to each
of the other Underwriters, as soon as practicable after the end of each
fiscal year, a copy of its annual report to stockholders for such year;
and the Company will furnish to the Representatives (A) as soon as
available, a copy of each report and any definitive proxy statement of
the Company filed with the Commission under the Securities Exchange Act
of 1934 or mailed to stockholders, and (B) from time to time, such
other information concerning the Company as CSFBC may reasonably
request.
(viii) The Company will pay all expenses incident to
the performance of its obligations under this Agreement, for any filing
fees and other expenses (including fees and disbursements of counsel)
incurred in connection with qualification of the Securities for sale
under the laws of such jurisdictions as CSFBC designates and the
printing of memoranda relating thereto, for the reasonable fees and
disbursements of counsel to the Underwriters in connection with, the
review by the National Association of Securities Dealers, Inc. of the
Securities, costs for listing the Securities on the American Stock
Exchange, for any travel expenses of the Company's officers and
employees and any other expenses of the Company in connection with
attending or hosting meetings with prospective purchasers of the
Securities and for expenses incurred in distributing preliminary
prospectuses and the Prospectus (including any amendments and
supplements thereto) to the Underwriters.
(ix) For a period of 180 days after the date of the
initial public offering of the Securities (the "Lock-up Period"), the
Company will not offer, sell, contract to sell, pledge or otherwise
dispose of, directly or indirectly, or file with the Commission a
registration statement under the Act relating to, any additional shares
of its Securities or securities convertible into, or exchangeable or
exercisable for, any shares of its Securities, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of CSFB; provided, however, that (I)
the Company may issue and sell Common Stock pursuant to any employee
stock option plan, stock ownership plan or dividend reinvestment plan
of the Company in effect at the Execution Time, (II) the Company may
issue Common Stock issuable upon the conversion of securities or the
exercise of warrants outstanding at the Execution Time.
(x) The Company will (a) consummate an Incorporation
Event on or prior to the First Closing Date, as contemplated in the
Amendment, dated as of June 14, 2000, to the Second Amended and
Restated Operating Agreement of Xxxxxx LLC, dated as of May 1, 2000 and
(b) will not waive, amend, alter or limit the scope or effectiveness
of, in any way, and will enforce, its rights under Section 7 of the
form of Registration Rights Agreement filed as Exhibit 10.16 to the
Initial Registration Statement.
(xi) The Company confirms as of the date hereof that
it is in compliance with all provisions of Section 1 of Laws of
Florida, Chapter 92-198, An Act Relating to Disclosure of Doing
Business with Cuba, and the Company further agrees that if it
-12-
commences engaging in business with the government of Cuba or with any
person or affiliate located in Cuba after the date the Registration
Statement becomes or has become effective with the Commission or with
the Florida Department of Banking and Finance (the "Department"),
whichever date is later, or if the information reported in the
Prospectus, if any, concerning the Company's business with Cuba or with
any person or affiliate located in Cuba changes in any material way,
the Company will provide the Department notice of such business or
change, as appropriate, in a form acceptable to the Department.
(xii) In connection with the Directed Share Program,
the Company will ensure that the Directed Shares will be restricted to
the extent required by the National Association of Securities Dealers,
Inc. (the "NASD") or the NASD rules from sale, transfer, assignment,
pledge or hypothecation for a period of three months following the date
of the effectiveness of the Registration Statement. The Designated
Underwriter will notify the Company as to which Participants will need
to be so restricted. The Company will direct the transfer agent to
place stop transfer restrictions upon such securities for such period
of time.
(xiii) The Company will pay all fees and
disbursements of counsel incurred by the Underwriters in connection
with the Directed Shares Program and stamp duties, similar taxes or
duties or other taxes, if any, incurred by the underwriters in
connection with the Directed Share Program.
(xiv) Furthermore, the company covenants with the
Underwriters that the company will comply with all applicable
securities and other applicable laws, rules and regulations in each
foreign jurisdiction in which the Directed Shares are offered in
connection with the Directed Share Program.
6. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the several Underwriters to purchase and pay for the Underwritten Securities
on the First Closing Date and the Optional Securities to be purchased on each
Optional Closing Date will be subject to the accuracy of the representations and
warranties on the part of the Company and its subsidiaries herein, to the
accuracy of the statements of Company officers made pursuant to the provisions
hereof, to the performance by the Company of its obligations hereunder and to
the following additional conditions precedent:
(a) If the Effective Time of the Initial Registration Statement is not
prior to the execution and delivery of this Agreement, such Effective Time shall
have occurred not later than 10:00 P.M., New York time, on the date of this
Agreement or such later date as shall have been consented to by CSFBC. If the
Effective Time of the Additional Registration Statement (if any) is not prior to
the execution and delivery of this Agreement, such Effective Time shall have
occurred not later than 10:00 P.M., New York time, on the date of this Agreement
or, if earlier, the time the Prospectus is printed and distributed to any
Underwriter, or shall have occurred at such later date as shall have been
consented to by CSFBC. If the Effective Time of the Initial Registration
Statement is prior to the execution and delivery of this Agreement, the
Prospectus shall have been filed with the Commission in accordance with the
Rules and Regulations and Section 5(A) of this Agreement. Prior to such Closing
Date, no stop order suspending the effectiveness of a Registration Statement
shall have been issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Company or the Representatives, shall be
contemplated by the Commission.
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(b) The Company shall have furnished to the Representatives the opinion
of Weil, Gotshal & Xxxxxx, counsel for the Company, dated the Closing Date, to
the effect that:
(i) Each of the Company (prior to its conversion to a
Delaware corporation), Xxxxxx Magellan LLC and Xxxxxx Columbus LLC has
been duly formed and is an existing limited liability company in good
standing under the laws of the State of Delaware, with power and
authority (limited liability company and other) to own its properties
and conduct its business as described in the Prospectus; and each of
the Company (prior to its conversion to a Delaware corporation), Xxxxxx
Magellan LLC and Xxxxxx Columbus LLC is duly qualified to do business
as a foreign limited liability company in good standing in all other
jurisdictions in which its ownership or lease of property or the
conduct of its business requires such qualification.
(ii) Each of the Company (subsequent to its
conversion from a Delaware limited liability company) and Xxxxxx
Offshore Finance Corp. has been duly formed and is an existing
corporation in good standing under the laws of the State of Delaware,
with power and authority (corporate and other) to own its properties
and conduct its business as described in the Prospectus; and each of
the Company (subsequent to its conversion from a Delaware limited
liability company) and Xxxxxx Offshore Finance Corp. is duly qualified
to do business as a foreign limited liability company in good standing
in all other jurisdictions in which its ownership or lease of property
or the conduct of its business requires such qualification.
(iii) all the outstanding shares of capital stock and
member interests of each subsidiary of the Company have been duly and
validly authorized and issued and are fully paid and nonassessable, and
all outstanding shares of capital stock and member interests of such
subsidiaries are owned by the Company directly, free and clear of any
perfected security interest and, to the knowledge of such counsel,
after due inquiry, any other security interests, claims, liens or
encumbrances;
(iv) the Company's authorized equity capitalization
is as set forth in the Prospectus; the capital stock of the Company
conforms to the description thereof in the Prospectus; the outstanding
shares of Common Stock have been duly and validly authorized and issued
and are fully paid and nonassessable; the Securities being sold
hereunder by the Company have been duly and validly authorized, and,
when issued and delivered to and paid for by the Underwriters pursuant
to this Agreement, will be fully paid and nonassessable; the conversion
from a Delaware limited liability company to a Delaware corporation
pursuant to Section 266 of the Delaware General Corporation Law has
been duly and validly authorized and effected; the Securities being
sold hereunder by the Company are duly authorized for listing, subject
to official notice of issuance, on the American Stock Exchange; the
certificates for the Securities are in valid and sufficient form; the
equity holders of the Company have no preemptive rights with respect to
any of its securities outstanding or to any of the Securities;
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(v) to the best knowledge of such counsel, there is
no pending or threatened action, suit or proceeding before any court or
governmental agency, authority or body or any arbitrator involving the
Company or any of its subsidiaries of a character required to be
disclosed in a Registration Statement or the Prospectus which is not
adequately disclosed, and there is no contract or other document of a
character required to be described in a Registration Statement or
Prospectus, or to be filed as an exhibit, which is not described or
filed as required;
(vi) the Initial Registration Statement and the
Additional Registration Statement, if any, has become effective under
the Act; the Prospectus either was filed with the Commission pursuant
to the subparagraph of Rule 424(b) specified in such opinion on the
date specified therein or was included in the Initial Registration
Statement or the Additional Registration Statement (as the case may
be), any required filing of the Prospectus, and any amendments or
supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); to the best
knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statements has been issued, no proceedings for that
purpose have been instituted, threatened or are contemplated;
(vii) this Agreement has been duly authorized,
executed and delivered by the Company and its subsidiaries;
(viii) no consent, approval, authorization or order
of any court, governmental agency or body is required for the
consummation of the transactions contemplated herein, except such as
have been obtained under the Act and such as may be required under the
blue sky laws of any jurisdiction (and maritime, admiralty and related
laws, rules and regulations, as to which such counsel need express no
opinion) in connection with the purchase and distribution of the
Securities by the Underwriters and such other approvals (specified in
such opinion) as have been obtained;
(ix) the execution, delivery and performance of this
Agreement and the issuance and sale of the Securities will not conflict
with, result in a breach or violation of, or constitute a default under
any law, statute, rule or regulation (other than maritime, admiralty
and related laws, rules and regulations, as to which such counsel need
express no opinion) or the charter, by-laws or operating agreement of
the Company or any of its subsidiaries or the terms of any indenture or
other agreement or instrument known to such counsel and to which the
Company or any of its subsidiaries is a party or bound or any judgment,
order or decree known to such counsel to be applicable to the Company
or any of its subsidiaries of any court, regulatory body,
administrative agency, governmental body or arbitrator having
jurisdiction over the Company or any of its subsidiaries (other than
public or governmental authorities having jurisdiction over maritime,
admiralty or related matters or who enforce or interpret maritime or
admiralty laws or promulgate any regulations as to such matters), and
the Company has full power and authority to authorize, issue and sell
the Securities as contemplated by this Agreement;
(x) No holders of securities of the Company have
rights to the registration of such securities under (a) the
Registration Statement or (b) any other registration statement
-15-
other than pursuant to the Registration Rights Agreement filed as
Exhibit 10.16 to the Initial Registration Statement;
(xi) The descriptions in the Registrations Statements
and Prospectus under the captions "Prospectus Summary," "Risk Factors,"
"Management's Discussion and Analysis of Financial Condition and
Results of Operations," "Business," "Management," "Certain
Relationships and Related Transactions," "Description of Capital
Stock," "Shares Eligible for Future Sale" and "Item 14," insofar as
they describe the provisions of documents, instruments and agreements
therein described and legal and governmental proceedings, constitute
fair summaries thereof, and are accurate in all material respects; the
statements in the Registrations Statements and Prospectus under the
caption "Business C Governmental Regulation," insofar as they purport
to describe federal environmental laws of the United States, fairly
present in all material respects the information set forth therein; the
statements in the Registrations Statements and Prospectus under the
captions "Shares Eligible for Future Sale," "Description of Capital
Stock" and "Item 14," insofar as they purport to describe the
securities laws of the United States and the laws of the State of
Delaware, fairly present in all material respects the information set
forth therein; and the statements in the Registration Statements and
Prospectus under the caption "United States Federal Income Tax
Consequences to Non-U.S. Holders," insofar as they purport to describe
federal income tax laws of the United States, fairly present in all
material respects the information set forth therein; it being
understood that such counsel need express no opinion as to the
financial statements or other financial or statistical data derived
therefrom contained in the Registrations Statements and Prospectus.
[Insofar as such opinion covers federal environmental laws of the]
United States, such counsel may rely solely upon the opinion of Gardere
Xxxxx Xxxxxx & Xxxxx L.L.P.]; and
(xii) None of the Company or any of its subsidiaries
is nor, after giving effect to the offering and sale of the Securities
and the application of the proceeds thereof as described in the
Prospectus, will be, an "investment company" as defined in the
Investment Company Act.
In rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the States of New York or
Texas or the United States or the corporation law of the State of Delaware, to
the extent they deem proper and specified in such opinion, upon the opinion of
other counsel of good standing whom they believe to be reliable and who are
satisfactory to counsel for the Underwriters and (B) as to matters of fact, to
the extent they deem proper, on certificates of responsible officers of the
Company and public officials. References to the Prospectus in this paragraph (b)
include any supplements thereto at the Closing Date.
In addition to the foregoing, such counsel shall provide a statement
confirming to you that, in the opinion of such counsel, the Registration
Statements and the Prospectus and any further amendments and supplements thereto
made by the Company prior to the Closing Date (other than the financial
statements and related schedules therein, as to which such counsel need express
no view), complied as to form in all material respects with the requirements of
the Act and the Rules and Regulations; and such counsel shall provide a
statement to you to the effect that, it has participated in conferences with
directors, executive officers and other representatives of the Company and
representatives of the Company's independent public accountants, at which
-16-
conferences the contents of the Registration Statements and related matters were
discussed, and although such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statements or the Prospectus (except to the extent set forth in
paragraph (xi) above) such counsel's work in connection with this matter did not
disclose any information that gave it reason to believe that, as of their
effective dates, the Registration Statements or any further amendment thereto
made by the Company prior to the Closing Date (other than, in each case, the
financial statements and related statements and related schedules therein, as to
which such counsel need express no view), contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein
or necessary to make the statement therein not misleading or that, as of its
date, the Prospectus or any further amendment or supplement thereto made by the
Company prior to the Closing Date (other than the financial statements and
related schedules therein, as to which such counsel need express no view)
contained an untrue statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading or that, as of the Closing Date,
either the Registration Statements or the Prospectus or any further amendment or
supplement thereto made by the Company prior to such Closing Date (other than
the financial statements and related schedules therein, as to which such counsel
need express no view) contains an untrue statement of a material fact or omits
to state a material fact necessary to make the statements therein, in the light
of the circumstances under which they were made in the case of the Prospectus,
not misleading.
(c) The Company shall have furnished to the Representatives the opinion
of Fort & Schlefer, special regulatory counsel for the Company, dated the
Closing Date, to the effect that:
(i) the issue and sale of the shares of Common Stock
being delivered by the Company, the compliance by the Company with all
of the provisions of this Agreement, the effecting of an Incorporation
Event or the consummation of the transactions herein contemplated will
not conflict with, or violate or constitute a default under, (i) any
U.S. Federal maritime or admiralty law or regulation (including,
without limitation, the Shipping Act of 1916 and those of the U.S.
Maritime Administration and the U.S. Coast Guard) or (ii) any judgment,
writ, injunction, decree or order binding on the Company or any of its
subsidiaries of which such counsel is aware of any U.S. Federal court
or governmental authority having jurisdiction over any maritime or
admiralty matters or who enforce or interpret any maritime or admiralty
laws or promulgate any regulations as to such matters;
(ii) no consent, approval, waiver, license or other
authorization by or filing with any U.S. Federal maritime or admiralty
governmental authority is required for the issue and sale of the shares
of Common Stock being issued by the Company, the effecting of an
Incorporation Event or the consummation by the Company of the
transactions contemplated herein;
(iii) immediately prior to the Closing Date, the
Company and each of its subsidiaries was a citizen of the United States
within the meaning of Section 2 of the Shipping Act and was qualified
to operate vessels in the coastwise trade of the United States;
immediately following the issue and sale of the shares of Common Stock
by the Company and the compliance by the Company and the Underwriters
with all of the provisions of this Agreement ("and the consummation of
the transactions herein contemplated and assuming
-17-
that at least ___% of the shares are issued and sold to, and held of
record and beneficially owned by, persons who are citizens of the
United States), the Company will remain a citizen of the United States
within the meaning of Section 2 of the Shipping Act and will continue
to be qualified to operate vessels in the coastwise trade of the United
States;
In rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the District of Columbia or
the United States, to the extent they deem proper and specified in such opinion,
upon the opinion of other counsel of good standing whom they believe to be
reliable and who are satisfactory to counsel for the Underwriters and (B) as to
matters of fact, to the extent they deem proper, on certificates of responsible
officers of the Company and public officials. References to the Prospectus in
this paragraph (e) include any supplements thereto at the Closing Date.
(d) The Representatives shall have received from Xxxxxx & Xxxxxx
L.L.P., counsel for the Underwriters, such opinion or opinions, dated the
Closing Date, with respect to the validity of the Securities delivered on such
Closing Date, the Registration Statements, the Prospectus (together with any
amendment or supplement thereto) and other related matters as the
Representatives may require, and the Company shall have furnished to such
counsel such documents as they request for the purpose of enabling them to pass
upon such matters.
(e) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the President or any Vice President and
the principal financial or accounting officer of the Company, dated the Closing
Date, to the effect that the signers of such certificate have carefully examined
the Registration Statements, the Prospectus, any supplements to the Prospectus
and this Agreement and that:
(i) the representations and warranties of the Company
in this Agreement are true and correct on and as of the Closing Date
with the same effect as if made on the Closing Date and the Company has
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied hereunder at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statements has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened;
(iii) the Rule 462(b) Prospectus, if any, was filed
pursuant to Rule 462(b), including payment of the applicable filing fee
in accordance with Rule 111(a) or (b) under the Act, prior to the time
the Prospectus was printed and distributed to any Underwriter; and
(iv) subsequent to the date of the most recent
financial statements in the Prospectus, there has been no material
adverse change, nor any development or event involving a prospective
material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or
contemplated by the Prospectus or as described in such certificate.
-18-
(f) Xxxxxx Xxxxxxxx LLP shall have furnished to the Representatives a
letter or letters, dated the date of delivery thereof (which, if the Effective
Time of the Initial Registration Statement is prior to the execution and
delivery of this Agreement, shall be on or prior to the date of this Agreement
or, if the Effective Time of the Initial Registration Statement is subsequent to
the execution and delivery of this Agreement, shall be prior to the filing of
the amendment or post-effective amendment to the registration statement to be
filed shortly prior to such Effective Time), in form and substance satisfactory
to the Representatives, confirming that they are independent accountants within
the meaning of the Act and the Rules and Regulations and stating in effect that:
(i) in their opinion the audited financial statements
and financial statement schedules included in the Registration
Statements and the Prospectus and reported on by them comply as to form
in all material respects with the applicable accounting requirements of
the Act and the Exchange Act and the related published rules and
regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a review of
interim financial information as described in Statement of Auditing
Standards No. 71, Interim Financial Information, on the unaudited
financial statements included in the Registration Statements;
(iii) on the basis the review referred to in clause
(ii) above, nothing came to their attention which caused them to
believe that:
(1) any unaudited financial statements included in the Registration
Statements and the Prospectus do not comply as to form in all material respects
with the applicable accounting requirements of the Act and the Rules and
Regulations or any material modifications should be made to such unaudited
financial statements for them to be in conformity with generally accepted
accounting principles;
(2) with respect to the period subsequent to [June 30], 2000, there
were any changes, at a specified date not more than three business days prior to
the date of this Agreement, in the long-term debt or capital contributions, net
of offering costs of the Company and its consolidated subsidiaries, increases in
short term indebtedness of the Company and its consolidated subsidiaries, or
decreases in the members' equity, net current assets or working capital of the
Company and its consolidated subsidiaries as compared with the amounts shown on
the [June 30], 2000 consolidated balance sheet included in the Registration
Statements and the Prospectus, or for the period from [July 1], 2000, to such
specified date there were any decreases, as compared with the corresponding
period in the preceding year in net operating income, revenues, income (loss)
before extraordinary item or in total amounts of consolidated net income of the
Company and its consolidated subsidiaries, except in all instances for changes
or decreases set forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the significance thereof
unless said explanation is not deemed necessary by the Representatives;
(3) the information included in the Registration Statements and the
Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data),
Item 302 (Supplementary Financial Information) and Item 402 (Executive
Compensation) is not in conformity with the applicable disclosure requirements
of Regulation S-K;
-19-
(iv) they have performed certain other specified
procedures as a result of which they determined that certain
information of an accounting, financial or statistical nature (which is
limited to accounting, financial or statistical information derived
from the general accounting records of the Company and its
subsidiaries) set forth in the Registration Statements and the
Prospectus, including, but not limited to, the information set forth
under the captions "Prospectus Summary", "Selected Historical Financial
Data", "Risk Factors", "Use of Proceeds", "Capitalization", "Dilution",
"Management's Discussion and Analysis of Financial Condition and
Results of Operations", "Business", "Management", Certain Relationships
and Related Transactions", "Principal Stockholders", "Description of
Capital Stock" and "Shares Eligible for Future Sale" and such
information agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation.
For purposes of this subsection (f), if the Effective Time of the
Initial Registration Statement is subsequent to the execution and delivery of
this Agreement, "Registration Statements" shall mean the initial registration
statement as proposed to be amended by the amendment or post-effective amendment
to be filed shortly prior to its Effective Time, (ii) if the Effective Time of
the Initial Registration Statement is prior to the execution and delivery of
this Agreement but the Effective Time of the Additional Registration is
subsequent to such execution and delivery, "Registration Statements" shall mean
the Initial Registration Statement and the additional registration statement as
proposed to be filed or as proposed to be amended by the post-effective
amendment to be filed shortly prior to its Effective Time, and (iii)
"Prospectus" shall mean the prospectus included in the Registration Statements.
References to the Prospectus in this paragraph (j) include any supplement
thereto at the date of the letter.
(g) The Representatives shall have received a letter, dated the Closing
Date, of Xxxxxx Xxxxxxxx LLP which meets the requirements of subsection (f) of
this Section 6, except that the specified date referred to in such subsection
will be a date not more than three days prior to such Closing Date for the
purposes of this subsection.
(h) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statements and the Prospectus,
there shall not have been any change or decrease specified in the letter or
letters referred to in paragraph (f) of this Section 6.
(i) At the Execution Time, the Company shall have furnished to the
Representatives a letter substantially in the form of Exhibit A hereto from each
officer and director of the Company, from SEACOR Smit Inc., Keppel Corporation
Limited and COI, LLC and from any other person which shall be a [ ]% stockholder
of the Company after the Offering, in which each such person agrees, for a
period of 180 days after the date of the initial public offering of the
Securities, not to offer, sell, contract to sell, pledge or otherwise dispose
of, directly or indirectly, any shares of Common Stock (other than the
Securities or shares of Common Stock disposed of as bona fide gifts) or
securities convertible into, or exchangeable or exercisable for, any shares of
Common Stock, enter into a transaction which would have the same effect, or
enter into any swap, hedge or other arrangement that transfers, in whole or in
part, any of the economic consequences of ownership of our Common Stock, whether
any such aforementioned transaction is to be settled by delivery of our common
stock, or such other securities, in cash or otherwise, or publicly disclose the
intention to
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make any such offer, sale, pledge or disposition, or to enter into any such
transaction, swap, hedge or other arrangement, without, in each case, the prior
written consent of CSFB.
(j) Subsequent to the Execution Time, there shall not have been (i) any
change, or any development or event involving a prospective change, in the
condition (financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as one enterprise which, in the judgment
of a majority in interest of the Underwriters including the Representatives, is
material and adverse and makes it impractical or inadvisable to proceed with
completion of the public offering or the sale of and payment for the Securities;
(ii) any downgrading in the rating of any of the Company's debt securities by
any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any public announcement that any such
organization has under surveillance or review its rating of any debt securities
of the Company (other than an announcement with positive implications of a
possible upgrading, and no implication of a possible downgrading, of such
rating); (iii) any suspension of trading in the Company's Common Stock by the
Commission or on any exchange or in the over the counter market or any
suspension or limitation of trading in securities generally on the New York
Stock Exchange or the National Association of Securities Dealers Automated
Quotation National Market System or any establishment of minimum prices on
either of such Exchange or Market System, (iv) any declaration of a banking
moratorium either by Federal or New York State authorities or by Singaporean
authorities, (v) any outbreak or escalation of hostilities in which the United
States is involved, declaration by the United States of a national emergency or
war or other national or international calamity or crisis the effect of which is
such as to make it, in the judgment of a majority in interest of the
Underwriters, including the Representatives, impracticable or inadvisable to
proceed with the offering or the sale or delivery of, or payment for, the
Securities, or (vi) a change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls as would, in
the judgment of in the judgment of a majority in interest of the Underwriters,
including the Representatives, be likely to prejudice materially the success of
the proposed issue, sale or distribution of the Securities, whether in the
primary market or in respect of dealings in the secondary market.
(k) An Incorporation Event shall have been duly and validly authorized
and effected and the form of Registration Rights Agreement filed as Exhibit
10.16 to the Initial Registration Statement, including Section 7 therein (which
shall not have been amended or altered in any way), shall have been adopted and
agreed to by each stockholder of the Company.
(l) Prior to the Closing Date, the Company shall have furnished to the
Representatives such further information, certificates and documents as the
Representatives may reasonably request.
7. INDEMNIFICATION AND CONTRIBUTION. (a) Each of the Company and its
subsidiaries agrees to indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter and each person,
if any, who controls any Underwriter within the meaning of either the Act or the
Exchange Act, against any and all losses, claims, damages or liabilities, joint
or several, to which they or any of them may become subject under the Act, the
Exchange Act or other Federal or state statutory law or regulation, at common
law or otherwise insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the Registration
Statements, or in any Preliminary Prospectus or the Prospectus, or in any
amendment
-21-
thereof or supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon any untrue statement or alleged untrue statement or omission or alleged
omission made from any such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed
that the only such information furnished by any Underwriter consists of the
information described in subsection 7(b) below. This indemnity agreement will be
in addition to any liability which the Company may otherwise have.
Each of the Company and its subsidiaries agrees to indemnify and hold
harmless the Designated Underwriter and each person, if any, who controls the
Designated Underwriter within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act (the "Designated Entities"), from and
against any and all losses, claims, damages and liabilities (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) (i) caused by any untrue
statement or alleged untrue statement of a material fact contained in any
material prepared by or with the consent of the Company for distribution to
Participants in connection with the Directed Share Program 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; (ii)
caused by the failure of any Participant to pay for and accept delivery of
Directed Shares that the Participant agreed to purchase; or (iii) related to,
arising out of, or in connection with the Directed Share Program, other than
losses, claims, damages or liabilities (or expenses relating thereto) that are
finally judicially determined to have resulted from the bad faith or gross
negligence of the Designated Entities.
(b) Each Underwriter will severally and not jointly indemnify and hold
harmless the Company, its directors and officers and each person, if any who
controls the Company within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities to which the Company may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by such Underwriter through the Representatives specifically for use
therein, and will reimburse any legal or other expenses reasonably incurred by
the Company in connection with investigating or defending any such loss, claim,
damage, liability or action as such expenses are incurred, it being understood
and agreed that the only such information furnished by any Underwriter consists
of the following information in the Prospectus furnished on behalf of each
Underwriter: the concession and reallowance figures appearing in the fourth
paragraph under the caption "Underwriting" and the information contained in the
sixth and fourteenth paragraphs under the caption "Underwriting."
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(c) Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
subsection (a) or (b) above, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above . In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. Notwithstanding anything
contained herein to the contrary, if indemnity may be sought pursuant to the
last paragraph in Section 7(a) hereof in respect of such action or proceeding,
then in addition to the separate firm for the indemnified parties, the
indemnifying party shall be liable for the reasonable fees and expenses of not
more than one separate firm (in addition to any local counsel) for the
Designated Underwriter for the defense of any losses, claims, damages and
liabilities arising out of the Directed Share Program, and all persons, if any,
who control the Designated Underwriter within the meaning of either Section 15
of the Act of Section 20 of the Exchange Act. An indemnifying party will not,
without the prior written consent of the indemnified parties, settle or
compromise or consent to the entry of any judgment with respect to any pending
or threatened claim, action, suit or proceeding in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified parties are actual or potential parties to such claim or action)
unless such settlement, compromise or consent (i) includes an unconditional
release of each indemnified party from all liability arising out of such claim,
action, suit or proceeding and (ii) does not include a statement as to, or an
admission of fault of, fault, culpability or a failure to act by or on behalf of
an indemnified party.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 7 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, then each indemnifying party shall contribute to the
amount paid or payable by such indemnified party as a result of the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") in such proportion as is appropriate to reflect the
relative benefits received by the Company and by the Underwriters, respectively,
from the offering of the Securities; provided, however, that in no case shall
any Underwriter (except as may be provided in any agreement among underwriters
relating to the offering of the Securities) be responsible for any amount in
excess of the underwriting discount or commission applicable to the Securities
purchased by such Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, each indemnifying
party shall contribute in such proportion as is appropriate to reflect not only
such relative benefits but also the relative fault of the Company and of the
Underwriters, respectively, in connection with the statements or omissions which
resulted in such Losses as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Company bear to the total
-23-
underwriting discounts and commissions received by the Underwriters. Relative
fault shall be determined by reference to, among other things, whether the
alleged untrue statement or omission relates to information provided by the
Company or the Underwriters and the parties' relative intent, knowledge, access
to information, and opportunity to correct or prevent such untrue statement or
omission. Notwithstanding the provisions of this paragraph (d), no person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this subsection
(d) to contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company under this Section 7 shall be in
addition to any liability which the Company may otherwise have and shall extend,
upon the same terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act or the Exchange Act; and the
obligations of the Underwriters under this Section shall be in addition to any
liability which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each director of the Company, to each
officer of the Company who has signed a Registration Statement and to each
person, if any, who controls the Company within the meaning of the Act.
8. DEFAULT OF UNDERWRITERS. If any Underwriter or Underwriters default
in their obligations to purchase Offered Securities hereunder on either the
First or any Optional Closing Date and the aggregate number of shares Securities
that such defaulting Underwriter or Underwriters agreed but failed to purchase
does not exceed 10% of the total number of shares Securities that the
Underwriters are obligated to purchase on such Closing Date, CSFBC may make
arrangements satisfactory to the Company for the purchase of such Securities by
other persons, including any of the Underwriters, but if no such arrangements
are made by such Closing Date, the non-defaulting Underwriters shall be
obligated severally, in proportion to their respective commitments hereunder, to
purchase the Securities that such defaulting Underwriters agreed but failed to
purchase on such Closing Date. If any Underwriter or Underwriters so default and
the aggregate number of shares of Securities with respect to which such default
or defaults occur exceeds 10% of the total number of shares Securities that the
Underwriters are obligated to purchase on such Closing Date and arrangements
satisfactory to CSFBC and the Company for the purchase of such Securities by
other persons are not made within 36 hours after such default, this Agreement
will terminate without liability on the part of any non-defaulting Underwriter
or the Company, except as provided in Section 9 (provided that if such default
occurs with respect to Optional Securities after the First Closing Date, this
Agreement will not terminate as to the Underwritten Securities or any Optional
Securities purchased prior to such termination). As used in this Agreement, the
term "Underwriter" includes any person substituted for an Underwriter under this
Section. Nothing herein will relieve a defaulting Underwriter from liability for
its default.
9. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
their respective officers, directors or controlling persons, and will survive
delivery of and payment for the Securities. If this Agreement is terminated
pursuant to Section 8 or if for any reason the purchase of the Securities by the
Underwriters is not consummated, the Company shall remain
-24-
responsible for the expenses to be paid or reimbursed by it pursuant to Section
5 and the respective obligations of the Company and the Underwriters pursuant to
Section 7 shall remain in effect, and if any Securities have been purchased
hereunder the representations and warranties in Section 2 and all obligations
under Section 5 shall also remain in effect. If the purchase of the Securities
by the Underwriters is not consummated for any reason other than solely because
of the termination of this Agreement pursuant to Section 8 or the occurrence of
any event specified in clause (iii), (iv) or (v) of Section 6(j), the Company
will reimburse the Underwriters for all out-of-pocket expenses (including fees
and disbursements of counsel) reasonably incurred by them in connection with the
offering of the Securities.
10. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed and confirmed to them, care of Credit Suisse First
Boston Corporation, at Eleven Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000,
Attention: Investment Banking Department of Transactions Advisory Group; or, if
sent to the Company, will be mailed, delivered or telegraphed and confirmed to
it at Xxxxxx Offshore, Inc., 1370 Avenue of the Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Xxxx Xxxxxxxxx; provided, however, that any notice to
an Underwriter pursuant to Section 7 will be mailed, delivered or telegraphed
and confirmed to such Underwriter.
11. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7 hereof, and no
other person will have any right or obligation hereunder.
12. REPRESENTATION. The Representatives will act for the several
Underwriters in connection with the transactions contemplated by this Agreement,
and any action under this Agreement taken by the Representatives jointly or by
CSFBC will be binding upon all the Underwriters.
13. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York, without regard to principles
of conflicts of laws.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
14. COUNTERPARTS. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such counterparts shall together constitute one and
the same instrument.
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If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
Xxxxxx Offshore LLC
By:
---------------------------------------
Name:
Title:
Xxxxxx Columbus LLC
By:
---------------------------------------
Name:
Title:
Xxxxxx Magellan LLC
By:
---------------------------------------
Name:
Title:
Xxxxxx Offshore Finance Corp.
By:
---------------------------------------
Name:
Title:
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The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
Credit Suisse First Boston Corporation
Xxxxxxx Xxxxx Xxxxxx Inc
Prudential Securities Incorporated
Xxxxxxxxxxx Xxxxxxx Securities, Inc
By: Credit Suisse First Boston Corporation
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
For themselves and the other several Underwriters
named in Schedule I to the foregoing Agreement.
-27-
EXHIBIT A
XXXXXX OFFSHORE LLC
INITIAL PUBLIC OFFERING OF COMMON STOCK
, 2000
Credit Suisse First Boston Corporation
Xxxxxxx Xxxxx Barney Inc
Prudential Securities Incorporated
Xxxxxxxxxxx Xxxxxxx Securities, Inc.
As Representatives of the several Underwriters
c/o Credit Suisse First Boston Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs:
This letter is being delivered to you in connection with the proposed
Underwriting Agreement (the "Underwriting Agreement"), between Xxxxxx Offshore
LLC, a Delaware limited liability company (the "Company") and each of you as
Representatives of the underwriters named therein, pursuant to which an offering
will be made that is intended to result in the establishment of a public market
for the Common Stock, $.01 par value (the "Securities"), of the Company.
In order to induce the Representatives to enter into the Underwriting
Agreement, the undersigned agrees that from the date hereof and until 180 days
after the date of the initial public offering set forth on the final prospectus
used to sell the Securities (the "Public Offering Date") pursuant to the
Underwriting Agreement, not to offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, any shares of Securities or
securities convertible into, or exchangeable or exercisable for, any shares of
Securities, enter into a transaction which would have the same effect, or enter
into any swap, hedge or other arrangement that transfers, in whole or in part,
any of the economic consequences of ownership of the Securities, whether any
such aforementioned transaction is to be settled by delivery of the Securities,
or such other securities, in cash or otherwise, or publicly disclose the
intention to make any such offer, sale, pledge or disposition, or to enter into
any such transaction, swap, hedge or other arrangement, without, in each case,
the prior written consent of Credit Suisse First Boston Corporation. In
addition, the undersigned agrees that, without the prior written consent of
Credit Suisse First Boston Corporation it will not, during the period commencing
on the date hereof and ending 180 days after the Public
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Offering Date, make any demand for or exercise any right with respect to, the
registration of any Securities or any security convertible into or exercisable
or exchangeable for the Securities.
Any Securities received upon exercise of options granted to the
undersigned will also be subject to this Agreement. Any Securities acquired by
the undersigned in the open market will not be subject to this Agreement. A
transfer of Securities to a family member or trust may be made, provided the
transferee agrees to be bound in writing by the terms of this Agreement.
In furtherance of the foregoing, the Company and its transfer agent and
registrar are hereby authorized to decline to make any transfer of shares of
Securities if such transfer would constitute a violation or breach of this
Agreement.
This Agreement shall be binding on the undersigned and the successors,
heirs, personal representatives and assigns of the undersigned. This Agreement
shall lapse and become null and void if the Public Offering Date shall not have
occurred on or before [ ].
Very truly yours,
-----------------------------------
Name:
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SCHEDULE I
XXXXXX OFFSHORE LLC
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Number of
Underwritten
Underwriter Securities
================================================================================
CS First Boston Corporation .....................................
--------------------------------------------------------------------------------
Salomon Brothers Inc.............................................
--------------------------------------------------------------------------------
Prudential Securities Incorporated...............................
--------------------------------------------------------------------------------
Xxxxxxxxxxx Xxxxxxx Securities, Inc..............................
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--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
Total Underwriters ..............................................
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
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