4,544,572 Shares
ENERGY PARTNERS, LTD.
Common Stock
UNDERWRITING AGREEMENT
November 10, 2003
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
Credit Suisse First Boston LLC
Deutsche Bank Securities Inc.
Xxxxxxxxx & Company, Inc.
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxx Xxxxx
Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
1. Introductory. Evercore Capital Partners L.P., a Delaware limited
partnership, Evercore Capital Partners (NQ) L.P., a Delaware limited
partnership, Evercore Capital Offshore Partners L.P., an exempted limited
partnership formed under the laws of the Cayman Islands, and Evercore
Co-Investment Partnership L.P., a Delaware limited partnership (each a "Selling
Stockholder" and, collectively, the "Selling Stockholders"), propose to sell, in
the proportions set forth on Schedule A hereto, an aggregate of 4,544,572
outstanding shares of Common Stock, par value $.01 per share ("Securities"), of
Energy Partners, Ltd., a Delaware Corporation (the "Company"). Such 4,544,572
shares of Securities are hereinafter referred to as the "Offered Securities."
The Company and the Selling Stockholders hereby agree with the several
Underwriters named in Schedule B herein (the "Underwriters") as follows:
2. Representations and Warranties of the Company and the Selling
Stockholders. (a) The Company represents and warrants to, and agrees with, the
several Underwriters that:
(i) A registration statement (No. 333-109871) relating to the Offered
Securities, including a form of prospectus, has been filed with the
Securities and Exchange Commission ("Commission") and has become effective.
Such registration statement, as amended as of the date of this Agreement,
is hereinafter referred to as the "Registration Statement" and the
prospectus included in such Registration Statement, as supplemented by the
prospectus supplement dated November 10, 2003, to reflect the terms of the
Offered Securities, as first filed with the Commission pursuant to and in
accordance with Rule 424(b)
("Rule 424(b)") under the Securities Act of 1933 ("Act"), including all
material incorporated by reference, 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) On the effective date of the Registration Statement, such
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, and on
the date of this Agreement and at the time of filing the Prospectus
pursuant to Rule 424(b), the Registration Statement and the Prospectus
conform or 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 omit to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading, except that the foregoing does not apply
to statements in or omissions from any such documents based upon (i)
written information furnished to the Company by or on behalf of the
Underwriters or (ii) any information furnished to the Company by or on
behalf of any Selling Stockholder specifically for use therein.
(iii) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Delaware with
corporate power and authority to own its properties and conduct its
business as described in the Prospectus; and the Company is 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 so to
qualify or to be in good standing would not have a material adverse effect
on the condition (financial or otherwise), business, properties or results
of operations of the Company and its subsidiaries taken as a whole
("Material Adverse Effect").
(iv) The Company has no subsidiaries which conduct any business other
than EPL of Louisiana, L.L.C., Delaware EPL of Texas, LLC, EPL Pipeline
L.L.C. and Nighthawk L.L.C. (such four subsidiaries being referred to
herein as the "subsidiaries" and individually as "subsidiary"). Each
subsidiary of the Company has been duly organized and is an existing
limited liability company in good standing under the laws of the
jurisdiction of its organization, with limited liability company power and
authority to own its properties and conduct its business as described in
the Prospectus; and each subsidiary of the Company is duly qualified to do
business as a foreign corporation or other entity 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 so to qualify or to be in good standing would not result in a
Material Adverse Effect, all of the issued and outstanding capital stock or
other ownership interest of each subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable; and the
capital stock or other ownership interest of each subsidiary owned by the
Company, directly or through subsidiaries, is owned free from liens,
encumbrances and defects.
(v) The authorized capital stock of the Company as of June 30, 2003
and as of the Closing Date is as set forth in the Consolidated Balance
Sheet of the Company and its subsidiaries in the Quarterly Report on Form
10-Q for the period ended June 30, 2003. The issued and outstanding capital
stock of the Company as of October 31, 2003 and as of the Closing Date is
as set forth in the Prospectus under the caption "Our Outstanding Shares of
Common Stock" (except for subsequent issuances, if any, pursuant to
reservations, agreements or employee benefit plans referred to in the
Prospectus or pursuant to the exercise of convertible securities or options
referred to in the Prospectus). The Offered Securities and all other
outstanding shares of capital stock of the Company have been duly
authorized and validly issued and are fully paid and nonassessable. The
Offered Securities and all other outstanding shares of capital stock of the
Company conform in all material respects to the description thereof
contained
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or incorporated in the Prospectus; and the stockholders of the Company have
no preemptive rights with respect to the Offered Securities.
(vi) 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 in connection with
this offering.
(vii) 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 the Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the
Company under the Act other than those that have been complied with or
waived in connection with this offering.
(viii) No relationship, direct or indirect, exists between or among
the Company or any of its subsidiaries, on the one hand, and the directors,
managers, officers, stockholders, members, unitholders, customers or
suppliers of the Company or any of their respective subsidiaries on the
other hand, which is required to be described in the Prospectus which is
not so described or incorporated by reference therein.
(ix) The Offered Securities are listed on the New York Stock Exchange.
(x) No consent, approval, authorization, or order of, or filing with,
any governmental agency or body or any court is required to be obtained or
made by the Company for the performance by the Company of its obligations
contemplated by this Agreement in connection with the sale of the Offered
Securities by the Selling Stockholders, except such as have been obtained
and made under the Act and such as may be required under state securities
laws or as required by the National Association of Securities Dealers, Inc.
or the New York Stock Exchange.
(xi) There are no contracts or documents which are required to be
described in the Registration Statement or the Prospectus or to be filed as
exhibits thereto which have not been so described and filed as required.
(xii) Neither the Company nor any of its subsidiaries is (1) in
violation of its charter or by-laws, or other organizational documents, or
in default in the performance or observance of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, deed
of trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by
which it or any of them may be bound, or to which any of the property or
assets of the Company or any subsidiary is subject (collectively,
"Agreements and Instruments") except for such defaults that, individually
or in the aggregate, would not have a Material Adverse Effect or (2) in
violation in any material respect of any law, ordinance, governmental rule,
regulation or court decree to which it or its property or assets may be
subject or has failed to obtain any material license, permit, certificate,
franchise or other governmental authorization or permit necessary to the
ownership of its property or assets or to the conduct of its business,
except for such violations or failures that, individually or in the
aggregate, would not result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated in this Agreement including but not
limited to the sale of the Offered Securities by the Selling Stockholders,
and compliance by the Company with its obligations under this Agreement
have been duly authorized by all necessary corporate action and, do not and
will not, whether with or without the giving of notice or passage of time
or both, conflict with
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or constitute a breach of, or default or Repayment Event (as defined below)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any subsidiary
pursuant to, the Agreements and Instruments (except for such conflicts,
breaches or defaults or liens, charges or encumbrances that would not
result in a Material Adverse Effect), nor will such action result in any
violation of the provisions of the charter or by-laws, or other
organizational documents, of the Company or any subsidiary or any
applicable law, statute, rule, regulation, judgment, order, writ or decree
of any government, government instrumentality or court, domestic or
foreign, having jurisdiction over the Company or any subsidiary or any of
their assets, properties or operations, except as would not have a Material
Adverse Effect. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other evidence
of indebtedness (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any subsidiary.
(xiii) This Agreement has been duly authorized, executed and delivered
by the Company.
(xiv) Except as disclosed in the Prospectus, the Company and its
subsidiaries have good and marketable title to all real properties owned by
them and good title to all other properties and assets owned by them, in
each case free from 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 that
is material to the business of the Company and its subsidiaries, considered
as one enterprise, and under which the Company or any of its subsidiaries
holds properties described in the Prospectus under valid and enforceable
leases with no exceptions that would materially interfere with the use made
or to be made thereof by them.
(xv) The Company and its subsidiaries possess adequate certificates,
authorities or permits issued by appropriate governmental agencies or
bodies necessary to conduct the business now operated by them except for
such certificates, authority or permits with respect to which the lack of
possession would not reasonably be expected to individually or in the
aggregate have a Material Adverse Effect. None of the Company or any of its
subsidiaries has received any written notice of proceedings relating to the
revocation or modification of any such certificate, authority or permit
that, if determined adversely to the Company or any of its subsidiaries,
would reasonably be expected to individually or in the aggregate have a
Material Adverse Effect.
(xvi) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that
would reasonably be expected to have a Material Adverse Effect.
(xvii) 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 and have not
received any notice of infringement of or conflict with asserted rights of
others with respect to any intellectual property rights that would
reasonably be expected to individually or in the aggregate have a Material
Adverse Effect.
(xviii) Except as disclosed in the Prospectus, neither the Company nor
any of its subsidiaries is in violation of any statute, 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
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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
pending claim relating to any environmental laws, which violation,
contamination, liability or claim would individually or in the aggregate
have a Material Adverse Effect; and the Company is not aware of any pending
investigation which might lead to such a claim.
(xix) Except as disclosed in the Prospectus, there are no pending
actions, suits or proceedings against or affecting the Company, any of its
subsidiaries or any of their respective properties that 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 Offered Securities; and no such actions, suits or proceedings
are, to the Company's knowledge, threatened or contemplated.
(xx) The Company and each of its subsidiaries are insured by insurers
of recognized financial responsibility against such losses and risks and in
such amounts as are prudent and customary in the businesses in which they
are engaged; and neither the Company nor any of its subsidiaries has any
reason to believe that they will not be able to renew their existing
insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its business
at a cost that would not have a Material Adverse Effect.
(xxi) The financial statements included or incorporated by reference
in the Prospectus present fairly in all material respects 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.
(xxii) Except as disclosed in the Prospectus, since the date of the
latest audited financial statements included or incorporated by reference
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, 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 capital stock.
(xxiii) The Company and its subsidiaries have established and maintain
a system of internal accounting controls sufficient to provide reasonable
assurances that (i) transactions were, are and will be executed in
accordance with management's general or specific authorization; (ii)
transactions were, are and will be recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii)
access to assets was, is and will be permitted only in accordance with
management's general or specific authorizations; and (iv) the recorded
accountability for assets was, is and will be compared with existing assets
at reasonable intervals and appropriate action was, is and will be taken
with respect to any differences.
(xxiv) The Company has filed in a timely manner with the Commission
each document required to be filed by it pursuant to the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), each such document
at the time it was filed conformed in all material respects to the
requirements of the Exchange Act and none of such documents at the time
filed contained an untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading. The Company files such reports
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with the Commission on the Electronic Data Gathering, Analysis and
Retrieval (XXXXX) system.
(xxv) The statistical data included or incorporated by reference in
the Prospectus are derived from sources which the Company reasonably and in
good faith believes to be accurate, reasonable and reliable and agrees with
the sources from which they were derived.
(xxvi) The information that was provided by the Company and its
subsidiaries, on the basis of which the reserve estimates and related
information included or incorporated by reference in each Registration
Statement and the Prospectus was prepared, is true and correct in all
material respects.
(b) The Selling Stockholders jointly and severally represent and warrant
to, and agree with, the Underwriters that:
(i) Each of the Selling Stockholders has, and on the Closing Date will
have, valid and unencumbered title to the Offered Securities to be
delivered by each Selling Stockholder on the Closing Date and full right,
power and authority to enter into this Agreement and to sell, assign,
transfer and deliver the Offered Securities to be delivered by each Selling
Stockholder on the Closing Date hereunder; and upon the delivery of and
payment for the Offered Securities on the Closing Date, the Underwriters
will acquire valid and unencumbered title to the Offered Securities to be
delivered by each Selling Stockholder on the Closing Date.
(ii) Any information provided in writing by or on behalf of any
Selling Stockholder contained in the Registration Statement does not
include any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
(iii) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between any Selling Stockholder and any person
that would give rise to a valid claim against any Selling Stockholder or
any Underwriter for a brokerage commission, finder's fee or other like
payment in connection with this offering.
(iv) Each Selling Stockholder has reviewed and is familiar with the
information furnished in writing by or on behalf of each Selling
Stockholder for use in the Registration Statement (it being understood and
agreed that only such information furnished by or on behalf of any Selling
Stockholder consists of the information described as such in Section 7(b)
hereof), at the time of the filing of the Prospectus pursuant to Rule
424(b), the information furnished in writing by or on behalf of each
Selling Stockholder does not (x) contain or will not contain any untrue
statement of a material fact or (y) omit or will not omit to state a
material fact necessary in order to make the statements therein not
misleading.
(v) No Selling Stockholder nor any of its affiliates directly, or
indirectly through one or more intermediaries, controls, or is controlled
by, or is under common control with, or has any other association with
(within the meaning of Article I, Section (ee) of the By-laws of the
National Association of Securities Dealers, Inc. (the "NASD")), any member
firm of the NASD that is participating as an underwriter or selling group
member in the offering of the Offered Securities.
(vi) No Selling Stockholder has taken, directly or indirectly, any
action which is designed to or which has constituted or which might
reasonably be expected to cause or result
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in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Offered Securities.
(vii) No filing with, or consent, approval, authorization, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or required for the
performance by the Selling Stockholders of their obligations hereunder or
in connection with the offer, sale and delivery of the Offered Securities
by the Selling Stockholders hereunder or the consummation by the Selling
Stockholders of the transactions contemplated by this Agreement, except
such as may have previously been made or obtained or as may be required
under the Act, Section 16 of the Exchange Act or the Rules and Regulations
or state securities laws.
3. Purchase, Sale and Delivery of Offered Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, each Selling Stockholder agrees,
severally and not jointly, to sell to each Underwriter, and each Underwriter
agrees to purchase from each Selling Stockholder, at a purchase price of $
11.1625 per share, the Offered Securities set forth opposite the name of such
Selling Stockholder in Schedule A hereto.
The Selling Stockholders will deliver the Offered Securities to the
Representatives for the account 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 reasonably acceptable to the
Representatives drawn to the order of Evercore Capital Partnership Clearing in
the aggregate amount set forth on Schedule A, at the office of the Company at
9:00 A.M., New York time, on November 17, 2003 or at such other time not later
than seven full business days thereafter as the Representatives and the Selling
Stockholders determine, such time being herein referred to as the "Closing
Date." For purposes of Rule 15c6-1 under the Exchange Act, the Closing Date (if
later than the settlement date) shall be the settlement date for payment of
funds and delivery of securities for all the Offered Securities sold pursuant to
the offering. The certificates for the Offered Securities so to be delivered
will be in definitive form, in such denominations and registered in such names
as the Representatives requests and will be made available for checking and
packaging at the above office of the Company at least 24 hours prior to the
Closing Date.
4. Offering by Underwriters. It is understood that the several Underwriters
propose to offer the Offered Securities for sale to the public as set forth in
the Prospectus.
5. Certain Agreements of the Company and the Selling Stockholders. The
Company agrees with the several Underwriters and the Selling Stockholders that:
(a) The Company will file the Prospectus with the Commission pursuant
to and in accordance with Rule 424(b)(5) not later than the second business
day following the execution and delivery of this Agreement.
(b) The Company will advise the Representatives promptly of any
proposal to amend or supplement the Registration Statement or the
Prospectus and will not effect such amendment or supplement without the
Representatives' consent, which consent shall not be unreasonably withheld
or delayed; and the Company will also advise the Representatives promptly
of any amendment or supplement 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
reasonable best efforts to prevent the issuance of any such stop order and
to obtain as soon as possible its lifting, if issued.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act in connection with
sales by any Underwriter or any 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,
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or if it is necessary at any time to amend the Prospectus to comply with
the Act, the Company will promptly notify the Representatives of such event
and will promptly prepare and file with the Commission, at its own expense,
an amendment or supplement which will correct such statement or omission or
an amendment which will effect such compliance. Neither the notification to
the Representatives nor the Underwriters' delivery of any such amendment or
supplement shall constitute a waiver of any of the conditions set forth in
Section 6.
(d) As soon as practicable, but not later than 16 months after the
date of this Agreement, the Company will make generally available to its
security holders an earnings statement covering a period of at least 12
months beginning after the effective date of the Registration Statement
which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to the Representatives copies of the
Registration Statement (four (4) of which will be signed (no more than one
of which must contain original signatures) and will include all exhibits),
each related preliminary prospectus, and, so long as a prospectus relating
to the Offered Securities is required to be delivered under the Act in
connection with sales by any Underwriter or any dealer, the Prospectus and
all amendments and supplements to such documents, in each case in such
quantities as the Representatives 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 date of the Registration Statement. All other such documents
shall be so furnished as soon as available. The Company will pay the
expenses of printing and distributing to the Underwriters all such
documents.
(f) The Company will use its reasonable efforts, in cooperation with
the Underwriters, to arrange for the qualification of the Offered
Securities for sale under the laws of such jurisdictions as the
Representatives designate and will continue such qualifications in effect
so long as required for the distribution provided, however, that the
Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in securities
in any jurisdiction in which it is not otherwise so subject.
(g) For a period of 30 days after the date of the initial public
offering of the Offered Securities, 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 Xxxxxxx Xxxxx &
Co. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, except
issuances of Securities pursuant to this Agreement, the conversion or
exchange of convertible or exchangeable securities or the exercise of
warrants or options, in each case outstanding on the date hereof, grants of
stock awards, phantom units and employee stock options pursuant to the
terms of a plan in effect on the date hereof, issuances of Securities
pursuant to the exercise of such options or phantom units and the filing of
any registration statement on Form S-8 relating to securities that have
been or may be issued pursuant to any such plan.
(h) The Company agrees with the Underwriters that the Company will pay
all expenses incident to the performance of the obligations of the Company
and the Selling Stockholders under this Agreement (including reasonable
fees and disbursements of one counsel to all Selling Stockholders, not to
exceed $25,000), for any filing fees and other expenses in connection with
qualification of the Offered Securities for sale under the laws of such
jurisdictions as the Representatives designate and the printing of
memoranda relating thereto, for the filing fee incident to the review by
the National Association of Securities Dealers, Inc. of the Offered
Securities, 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 Offered Securities, for
any transfer taxes on the sale by the Selling Stockholders
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of the Offered Securities to the Underwriters and for expenses incurred in
distributing preliminary prospectuses and the Prospectus (including any
amendments and supplements thereto) to the Underwriters.
(i) The Selling Stockholders agree, for a period of 30 days after the
date of the initial public offering of the Offered Securities, not to
offer, sell, contract to sell, pledge or otherwise dispose of, directly or
indirectly, any additional shares of the Securities of the Company 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 enter into any such transaction, swap, hedge or other
arrangement, without, in each case, the prior written consent of the
Underwriter.
6. Conditions of the Obligations of the Underwriters. The obligations of
the Underwriters to purchase and pay for the Offered Securities on the Closing
Date will be subject to the accuracy of the representations and warranties on
the part of the Company and the Selling Stockholders herein, to the accuracy of
the certificates of Company officers delivered pursuant to the provisions
hereof, to the performance by the Company and the Selling Stockholders of their
obligations hereunder and to the following additional conditions precedent:
(a) The Representatives shall have received a letter, dated the date
of delivery thereof (which shall be on or prior to the date of this
Agreement), of KPMG LLP confirming that they are independent public
accountants within the meaning of the Act and the applicable published
Rules and Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements examined by them
and included or incorporated by reference in the Registration
Statement comply as to form in all material respects with the
applicable accounting requirements of the Act and the related
published Rules and Regulations;
(ii) on the basis of a reading of the latest available interim
financial statements of the Company, inquiries of officials of the
Company who have responsibility for financial and accounting matters
and other specified procedures, nothing came to their attention that
caused them to believe that:
(A) at the date of the latest available balance sheet read
by such accountants, or at a subsequent specified date not more
than three business days prior to the date of this Agreement,
there was any change in the capital stock or any increase in
short-term indebtedness or long-term debt of the Company and its
consolidated subsidiaries or, at the date of the latest available
balance sheet read by such accountants, there was any decrease in
consolidated net current assets or net assets as compared with
amounts shown on the latest balance sheet included in the
Prospectus; or
(B) for the period from the closing date of the latest
income statement included or incorporated by reference in the
Prospectus to the closing date of the latest available income
statement read by such accountants there were any decreases, as
compared with the corresponding period of the previous year and
with the period of corresponding length ended the date of the
latest income statement included in the Prospectus, in
consolidated net sales or net operating income in the total or
per share amounts of consolidated income before extraordinary
items or net income;
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except in all cases set forth in clause (A) above for changes,
increases or decreases which the Prospectus discloses have
occurred or may occur or which are described in such letter; and
(iii) they have compared specified dollar amounts (or percentages
derived from such dollar amounts) and other financial information
contained in the Registration Statements (in each case to the extent
that such dollar amounts, percentages and other financial information
are derived from the general accounting records of the Company and its
subsidiaries subject to the internal controls of the Company's
accounting system or are derived directly from such records by
analysis or computation) with the results obtained from inquiries, a
reading of such general accounting records and other procedures
specified in such letter and have found such dollar amounts,
percentages and other financial information to be in agreement with
such results, except as otherwise specified in such letter.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Registration
Statement for purposes of this subsection.
(b) 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 the
Closing Date, no stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been instituted or, to the knowledge of the Company or the Representatives,
shall be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this Agreement, there shall
not have occurred (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 Offered Securities; (ii) any downgrading in the rating of
any debt securities of the Company 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 change in U.S.
or international financial, political or economic conditions or currency
exchange rates or exchange controls as would, 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 Offered Securities, whether in the primary market or in respect of dealings
in the secondary market; (iv) any material suspension or material limitation of
trading in securities generally on the New York Stock Exchange or any setting of
minimum prices for trading on such exchange, or any suspension of trading of any
securities of the Company on any exchange or in the over-the-counter market; (v)
any banking moratorium declared by U.S. Federal or, New York authorities; (vi)
any major disruption of settlements of securities or clearance services in the
United States; or (vii) any attack on, outbreak or escalation of hostilities or
act of terrorism involving the United States, any declaration of war by Congress
or any other national or international calamity or emergency if, in the judgment
of a majority in interest of the Underwriters, including the Representatives,
the effect of any such attack, outbreak, escalation, act, declaration, calamity
or emergency makes it impractical or inadvisable to proceed with completion of
the public offering or the sale of and payment for the Offered Securities.
(d) The Representatives shall have received an opinion, dated the Closing
Date, of Xxxxxx Xxxxxx & Xxxxxxx LLP, outside counsel for the Company to the
effect that:
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(i) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the State of Delaware.
(ii) EPL Pipeline L.L.C. has been duly organized and is validly
existing as a limited liability company in good standing under the laws of
the State of Delaware.
(iii) The Underwriting Agreement has been duly authorized, executed
and delivered by the Company.
(iv) Based on oral confirmation from the Commission, the Registration
Statement has been declared effective under the Act; the required filing of
the Prospectus pursuant to Rule 424(b) has been made in the manner and
within the time period required by Rule 424(b); and, to our knowledge, no
stop order suspending the effectiveness of the Registration Statement has
been issued under the Act and, to our knowledge, no proceedings for that
purpose have been instituted or are pending or threatened by the
Commission.
(v) The Registration Statement, the Prospectus and each amendment or
supplement to the Registration Statement and the Prospectus as of their
respective effective or issue dates (other than the financial statements,
including notes thereto, or any other financial, reserve or statistical
information included or incorporated by reference therein or omitted
therefrom, as to which we need express no opinion) complied as to form in
all material respects with the requirements of the Act and the Rules and
Regulations.
(vi) The form of certificate used to evidence the Common Stock
complies in all material respects with all applicable statutory
requirements, with any applicable requirements of the charter and by-laws
of the Company and the requirements of the New York Stock Exchange.
(vii) The description of the Company's common stock contained in the
Company's Registration Statement on Form S-3 (File No. 333-103833) filed
March 14, 2003, as amended by the Company's amended and restated by-laws
filed as Exhibit 3.1 to the Company's Current Report on Form 8-K filed
April 3, 2003, all of which is incorporated by reference into the
Prospectus, to the extent that it constitutes matters of law, summaries of
legal matters, the Company's charter and bylaws or legal conclusions, has
been reviewed by us and is correct in all material respects.
(viii) The shares of issued and outstanding capital stock of the
Company as of October 31, 2003 including without limitation, the Offered
Securities have been duly authorized and validly issued as set forth in the
Prospectus Supplement under the caption "Our Outstanding Shares of Common
Stock" and are fully paid and non-assessable; and the issuance of such
shares of capital stock did not violate any statutory preemptive rights,
or, to our knowledge, contractual preemptive rights or other similar rights
of any security holder of the Company.
(ix) No filing with, or authorization, approval, consent, license,
order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign (other than under the Act and the
Rules and Regulations, which have been obtained, or as may be required
under the securities or blue sky laws of the various states, or the rules
and regulations of the National Association of Securities Dealers, Inc., as
to which we express no opinion) is necessary or required in connection with
the due authorization, execution and delivery of the Underwriting Agreement
by the Company.
(x) The execution, delivery and performance of the Underwriting
Agreement by the Company and the consummation of the transactions
contemplated in the
-11-
Underwriting Agreement by the Company and compliance by the Company with
its obligations under the Underwriting Agreement do not and will not,
whether with or without the giving of notice or lapse of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined in Section 2(a)(xii) of the Underwriting Agreement) under or result
in the creation or imposition of any lien, charge or encumbrance upon any
property or assets of the Company or any subsidiary pursuant to any
agreement or instrument identified in the Index to Exhibits to the
Registration Statement or any exhibit to any document incorporated by
reference therein to which the Company or any subsidiary is a party or by
which it or any of them may be bound, or to which any of the property or
assets of the Company or any subsidiary is subject (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not have a Material Adverse Effect), nor will such action result in
any violation of the provisions of the charter or by-laws of the Company or
any subsidiary, or any applicable law, statute, rule, regulation, judgment,
order, writ or decree, known to us, of any government, government
instrumentality or court, domestic or foreign, having jurisdiction over the
Company or any subsidiary or any of their respective properties, assets or
operations.
(xi) To our knowledge, there are no agreements required to be
described in the Registration Statement that are not so described.
We have participated in conferences with representatives of the
Underwriters and the Selling Stockholders, officers and other representatives of
the Company, counsel for the Company, the Underwriters and Selling Stockholders,
and representatives of the independent public accountants of the Company at
which the contents of the Prospectus and the Registration Statement and related
matters were discussed. Given the limitations inherent in the role of outside
counsel and the character of determinations involved in the preparation of the
Prospectus and the Registration Statement, we are not passing upon and do not
assume any responsibility for the accuracy, completeness or fairness of the
statements contained in the Prospectus and the Registration Statement and have
made no independent check or verification thereof. On the basis of the
foregoing, no facts have come to our attention which lead us to believe that the
Prospectus and the Registration Statement, as of their respective dates or as of
the date hereof, contained or contain an untrue statement of a material fact or
omitted or omit to state a material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading (it being understood that we express no comment with respect to the
financial statements, including the notes thereto, or any other financial,
reserve or statistical data found in or derived from the internal accounting or
other records of the Company and any of its subsidiaries set forth or referred
to or incorporated by reference in the Prospectus and the Registration
Statement).
In rendering such opinion, such counsel may rely, to the extent they
deem proper, on certificates of responsible officers of the Company and public
officials. Such opinion shall not state that it is to be governed or qualified
by, or that it is otherwise subject to, any treatise, written policy or other
document relating to legal opinions, including, without limitation, the Legal
Opinion Accord of the ABA Section of Business Law (1991).
(e) The Representatives shall have received an opinion, dated the
Closing Date, of Xxxx X. Xxxxx, the Company's Executive Vice President,
General Counsel and Corporate Secretary, to the effect that:
(i) The Company has corporate power and authority to own, lease
and operate its properties and to conduct its business as now being
conducted and to enter into and perform its obligations under the
Underwriting Agreement.
-12-
(ii) The Company is duly qualified and is in good standing in
Delaware, Massachusetts, Texas and Louisiana which, to my knowledge,
are the only jurisdictions in which such qualification is required,
whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be
in good standing would not result in a Material Adverse Effect.
(iii) Each of the subsidiaries (as defined in the Underwriting
Agreement), other than EPL Pipeline L.L.C., as to which I am rendering
no opinion, has been duly organized and is validly existing as a
limited liability company in good standing under the laws of the
jurisdiction of its organization.
(iv) Each of the subsidiaries has the power and authority to own,
lease and operate its properties and to conduct its business as now
conducted.
(v) Each of the subsidiaries is duly qualified in the
jurisdiction set forth on Exhibit A which, to my knowledge, are the
only jurisdictions in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
(vi) The issued and outstanding shares or membership interests of
each of the subsidiaries have been duly authorized and validly issued,
are fully paid and non-assessable and are owned by the Company, free
and clear of any recorded security interest or, to my knowledge, any
other security interest, mortgage, pledge, lien, encumbrance or claim.
None of the outstanding shares or membership interests of the
subsidiaries were issued in violation of any statutory preemptive
right or, to my knowledge, contractual preemptive rights of any
security holder of the subsidiaries.
(vii) To my knowledge, there is not pending or overtly threatened
in writing, any action, suit, proceeding, inquiry or investigation,
against the Company or any of the subsidiaries, or against the
property of the Company or any of the subsidiaries, before or brought
by any court or governmental agency or body, domestic or foreign,
which would reasonably be expected to result in a Material Adverse
Effect, or which would reasonably be expected to materially and
adversely affect the consummation of the transactions contemplated in
the Underwriting Agreement or the performance by the Company of its
obligations thereunder.
(viii) There are no contracts, agreements or understandings known
to such counsel between the Company and any person granting such
person the right to require the Company to include such securities in
the securities registered pursuant to the Registration Statement other
than those that have been complied with or waived in connection with
this offering.
(ix) To my knowledge, neither the Company nor any subsidiary is
in violation of its charter or by-laws and no default by the Company
or any subsidiary exists in the due performance or observance of any
obligation, agreement, covenant or condition contained in any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument identified in the Index to Exhibits to the
Registration Statement or any exhibit to any document incorporated by
reference therein, except any such violation or default which would
not reasonably be expected to result in a Material Adverse Effect.
(x) The information in the Annual Report on Form 10-K for the
year ended December 31, 2002 under "Business and Properties - Legal
Proceedings," to the extent that it constitutes matters of law,
summaries of legal matters or legal proceedings, or legal
-13-
conclusions, has been reviewed by me and is, to my knowledge, correct
in all material respects.
I have participated in conferences with representatives of the
Underwriters, the Selling Stockholders, officers and other
representatives of the Company, counsel for the Company, the
Underwriters and Selling Stockholders, and representatives of the
independent public accountants of the Company at which the contents of
the Prospectus and the Registration Statement and related matters were
discussed. Given the limitations inherent in the role of general
counsel and the character of determinations involved in the
preparation of the Prospectus and the Registration Statement, I am not
passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Prospectus
and the Registration Statement and have made no independent check or
verification thereof. On the basis of the foregoing, no facts have
come to my attention which lead me to believe that (i) the Prospectus
and the Registration Statement, as of their respective dates or as of
the date hereof, contained or contain an untrue statement of a
material fact or omitted or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances under
which they were made, not misleading (it being understood that I
express no comment with respect to the financial statements, including
the notes thereto, or any other financial, reserve or statistical data
found in or derived from the internal accounting or other records of
the Company and its subsidiaries set forth or referred to in the
Prospectus and the Registration Statement) or (ii) there are any
material contracts or agreements required to be filed as exhibits to
the Registration Statement that are not filed as required.
In rendering such opinion, such counsel may rely, to the extent he deems
proper, on certificates of responsible officers of the Company and public
officials. Such opinion shall not state that it is to be governed or qualified
by, or that it is otherwise subject to, any treatise, written policy or other
document relating to legal opinions, including, without limitation, the Legal
Opinion Accord of the ABA Section of Business Law (1991).
(f) The Representatives shall have received an opinion, dated the Closing
Date, of Xxxxxxx Xxxxxx L.L.P., special counsel to the Company regarding FERC
and environmental matters, to the effect that the information in the Annual
Report on Form 10-K for the year ended December 31, 2002 under the headings
"REGULATION OF TRANSPORTATION AND SALE OF NATURAL GAS," "REGULATION OF
TRANSPORTATION OF OIL," "REGULATION OF PRODUCTION" and "ENVIRONMENTAL
REGULATIONS" therein, to the extent that it constitutes matters of law,
summaries of legal matters or legal conclusions (other than disclosures
regarding the Company's compliance with, or the impact on the Company of, any
law, ordinance, governmental rule, regulation or court order, as to which they
express no opinion), has been reviewed by them and is, to their knowledge,
correct in all material respects, subject to the qualifications and assumptions
stated therein.
(g) The Representatives shall have received the opinion dated the Closing
Date of Simpson, Thacher & Xxxxxxxx LLP with respect to Selling Stockholders to
the effect that:
(i) Evercore Capital Partners L.P., Evercore Capital Partners (NQ)
L.P., Evercore Co-Investment Partnership L.P., (collectively, the "Delaware
Evercore Entities") and Evercore Capital Offshore Partners L.P. ("Evercore
Offshore") are the sole registered owners of the 3,758,909 Offered
Securities (the "Delaware Shares") and the 785,663 Offered Securities (the
"Offshore Shares") respectively, to be sold by such entities; each of the
Delaware Evercore Entities has full partnership power, right and authority
to sell such Delaware Shares; and upon payment for and delivery of the
Delaware Shares and Offshore Shares in accordance with the Underwriting
Agreement, the Underwriters will acquire all of the rights of each of the
Delaware Evercore Entities and Evercore Offshore in the Delaware
-14-
Shares and Offshore Shares and will also acquire their interest in such
Delaware Shares and Offshore Shares free of any adverse claim.
(ii) No consent, approval, authorization, order, registration or
qualification of or with any federal or New York governmental agency or
body or any Delaware governmental agency or body acting pursuant to the
Delaware Revised Uniform Limited Partnership Act or, to our knowledge, any
federal or New York court or any Delaware court acting pursuant to the
Delaware Revised Uniform Limited Partnership Act is required for the issue
and sale of the Delaware Shares by the Delaware Evercore Entities and the
compliance by the Delaware Evercore Entities with all of the provisions of
the Underwriting Agreement, except for the registration under the Act of
the Delaware Shares, and 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
Delaware Shares by the Underwriters.
(iii) The sale of the Delaware Shares by the Delaware Evercore
Entities and the compliance by the Delaware Evercore Entities with all of
the provisions of the Underwriting Agreement will not breach or result in a
default under any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument identified on the annexed schedule furnished
to us by the Delaware Evercore Entities and which each of the Delaware
Evercore Entities has represented lists all material agreements and
instruments, that reference the Delaware Shares or the Company, to which
such Delaware Evercore Entity is a party or by which such Delaware Evercore
Entity is bound or to which any of the property or assets of such Delaware
Evercore Entity is subject, nor will such action violate the Certificate of
Limited Partnership of any of the Delaware Evercore Entities or any federal
or New York statute or the Delaware Revised Uniform Limited Partnership Act
or any rule or regulation that has been issued pursuant to any federal or
New York statute or the Delaware Revised Uniform Limited Partnership Act or
any order known to us issued pursuant to any federal or New York statute or
the Delaware Revised Uniform Limited Partnership Act by any court or
governmental agency or body having jurisdiction over any Delaware Evercore
Entity or any of their properties.
(iv) The Underwriting Agreement has been duly authorized, executed and
delivered by or on behalf of the Delaware Evercore Entities.
(h) The Representatives shall have received the opinion, dated the Closing
Date, of Walkers with respect to Evercore Capital Offshore Partners, L.P. (the
"Partnership") to the effect that:
(i) Evercore Offshore is an exempted company duly incorporated and
validly existing under the laws of the Cayman Islands.
(ii) The Partnership is an exempted limited partnership duly formed,
registered and validly existing under the laws of the Cayman Islands. The
Partnership has full partnership right, power and authority to sell the
Offered Securities being sold by it.
(iii) Assuming the same to be so as a matter of the laws of the
jurisdiction of organization of Evercore Partners L.L.C. (the "Investment
General Partner") and all other relevant laws (other than the laws of the
Cayman Islands), the execution, delivery and performance of the
Underwriting Agreement and the Power of Attorney Agreement by the
Investment General Partner, on behalf of the Partnership and as a general
partner of the Partnership, the consummation of the transactions
contemplated thereby and the compliance by the Partnership with the terms
and provisions thereof do not:
-15-
(1) contravene or conflict with any law or regulation of the
Cayman Islands applicable to the Partnership; or
(2) breach or result in a default under the Amended and Restated
Partnership Agreement dated April 25, 1997 between the Investment
General Partner, Evercore Offshore and Xxxxxxx X. Xxxxxxxx and the
limited partners party thereto.
(iv) Neither the execution, delivery or performance of the
Underwriting Agreement and the Power of Attorney Agreement to which the
Partnership is party nor the consummation or performance of any of the
transactions contemplated thereby by the Partnership requires the consent
or approval of, the giving of notice to, or the registration with, or the
taking of, any other action in respect of any Cayman Islands governmental
or judicial authority or agency.
(v) Assuming the same to be so as a matter of the laws of the
jurisdiction of organization of the Investment General Partner and all
other laws (other than the laws of the Cayman Islands), the Underwriting
Agreement and the Power of Attorney Agreement have been duly authorized and
executed by the Investment General Partner on behalf of the Partnership
and, on the same assumption and assuming that they have been or will be
delivered, the Underwriting Agreement and the Power of Attorney Agreement
constitute or will constitute the legal, valid and binding obligations of
the Partnership and the Investment General Partner, as the case may be,
enforceable against the Partnership and the Investment General Partner,
respectively, in accordance with their terms. The law chosen in each of the
Underwriting Agreement and the Power of Attorney Agreement to govern their
respective interpretations would be upheld as a valid choice of law in any
action on the Underwriting Agreement and the Power of Attorney Agreement in
the courts of the Cayman Islands.
(vi) There are no stamp duties (other than the stamp duties mentioned
in qualification 2 in Schedule 3 hereto), income taxes, withholdings,
levies, registration taxes, wealth taxes, asset taxes or other duties or
taxes or charges now imposed, or which under the present laws of the Cayman
Islands could in the future become imposed, in connection with the
enforcement or admissibility in evidence of the Underwriting Agreement and
the Power of Attorney Agreement, activities of the Partnership contemplated
by the Underwriting Agreement and the Power of Attorney Agreement or on any
payment or distribution to be made by the Investment General Partner, the
Partnership or any other person pursuant to the Underwriting Agreement and
the Power of Attorney Agreement.
(vii) A judgment obtained in a foreign court will be recognized and
enforced in the courts of the Cayman Islands without any re-examination of
the merits:
(1) at common law, by an action commenced on the foreign judgment
debt in the Grand Court of the Cayman Islands, where the judgment is
final and in respect of which the foreign court had jurisdiction over
the defendant according to Cayman Islands conflict of law rules and
which is conclusive, for a liquidated sum not in respect of penalties
or taxes or a fine or similar fiscal or revenue obligations, and which
was neither obtained in a manner, nor is of a kind enforcement of
which is contrary to natural justice or the public policy of the
Cayman Islands; or
(2) by statute, by registration in the Grand Court of the Cayman
Islands and execution as if it were a judgment of the Grand Court,
where the judgment is a judgment of a superior court of any state of
the Commonwealth of Australia which is final and conclusive for a sum
of money not in respect of taxes or other charges of a like nature or
in respect of a fine, penalty or revenue obligation and which remains
enforceable by execution in that jurisdiction.
-16-
(viii) It is not necessary or advisable under the laws of the Cayman
Islands that the Underwriting Agreement and the Power of Attorney Agreement
or any document relating thereto be registered or recorded in any public
office or elsewhere in the Cayman Islands in order to ensure the validity,
effectiveness or enforceability of any of the Underwriting Agreement, the
Power of Attorney.
(ix) Assuming the same to be so as a matter of the laws of the
jurisdiction of organization of the Investment General Partner and all
other laws (other than the laws of the Cayman Islands), the Investment
General Partner has for itself and in its capacity as general partner of
the Partnership executed an effective submission to the jurisdiction of the
courts of the various jurisdictions specified in the Underwriting
Agreement, the Power of Attorney Agreement.
(i) The Representatives shall have received from Xxxxx Xxxxx L.L.P.,
counsel for the Underwriters, such opinion or opinions, dated the Closing Date,
with respect to the incorporation of the Company, the Registration Statement,
the Prospectus and other related matters as the Representatives may require, and
the Selling Stockholders and the Company shall have furnished to such counsel
such documents as they reasonably request for the purpose of enabling them to
pass upon such matters.
(j) The Representatives shall have received a certificate, dated the
Closing Date, of the Company signed by the President or any Vice President and a
principal financial or accounting officer of the Company in which such officers,
to the best of their knowledge after reasonable investigation, shall state that:
the representations and warranties of the Company in this Agreement are true and
correct in all material respects (determined without regard to any
qualifications, provisions or exceptions for "material," "materiality," "in all
material respects" (or correlative meanings)); the Company has complied in all
material respects with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to the Closing Date; no stop
order suspending the effectiveness of any Registration Statement has been issued
and no proceedings for that purpose have been instituted or are contemplated by
the Commission; and, subsequent to the date of the most recent financial
statements incorporated by reference 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 except as set forth in or contemplated by the Prospectus or as described
in such certificate.
(k) The Representatives shall have received a letter, dated the Closing
Date, of KPMG LLP meeting the requirements of subsection (a) of this Section,
except that the specified date referred to in such subsection will be a date not
more than three days prior to the Closing Date for the purposes of this
subsection.
(l) The Representatives shall have received (i) a long-form certificate of
good standing for the Company, dated as of a recent date, from the Secretary of
State of the State of Delaware and (ii) a certificate, dated as of a recent
date, of the Secretary of State of each state in which the Company is qualified
to do business as a foreign corporation under the laws of such state.
(m) The Representatives shall have received (i) a long-form certificate of
good standing for each of the Company's subsidiaries, certified as of a recent
date by the Secretary of State of the state in which such subsidiary is
incorporated or organized and (ii) a certificate, dated as of a recent date, of
the Secretary of State of each state in which each such subsidiary is qualified
to do business as a foreign corporation or other entity under the laws of each
such state.
-17-
(n) On or prior to the date of this Agreement, the Representatives shall
have received lockup letters in the form previously agreed to from each director
of the Company who is an affiliate of a Selling Stockholder and from Energy
Income Fund, L.P.
(o) The Custodian will deliver to the Representatives a letter stating that
they will deliver to each Selling Stockholder a United States Treasury
Department Form 1099 (or other applicable form or statement specified by the
United States Treasury Department regulations in lieu thereof) on or before
January 31 of the year following the date of this Agreement.
(p) The NASD shall have confirmed that it has not raised any objection with
respect to the fairness and reasonableness of the underwriting terms and
arrangements.
(q) The Representatives shall have received from each of Netherland, Xxxxxx
& Associates, Inc. and Xxxxx Xxxxx Company, L.P., each independent petroleum
engineers, letters dated, respectively, the date of this Agreement and the
Closing Date, in form and substance satisfactory to the Representatives, each
stating, as of the date of such letter (or, with respect to matters involving
changes or developments since the respective dates as of which information
regarding the oil and natural gas reserves and future net cash flows is given in
the Prospectus, as of the date not more than three days prior to the date of
such letter), the conclusions and findings of such firm with respect to the oil
and natural gas reserves of the Company estimated by such firm, as applicable,
and such other matters as the Representatives reasonably may request.
The Selling Stockholders and the Company will furnish the Representatives
with such conformed copies of such opinions, certificates, letters and documents
as the Representatives reasonably request. The Representatives may in their sole
discretion waive on behalf of the Underwriters compliance with any conditions to
the obligations of the Underwriters hereunder.
7. Indemnification and Contribution.
(a) The Company will indemnify and hold harmless each Underwriter, its
partners, directors and officers and each person, if any who controls such
Underwriter within the meaning of Section 15 of the Act, against any losses,
claims, damages or liabilities, joint or several, to which such Underwriter 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 alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter 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 an untrue statement or alleged untrue statement in or omission
or alleged omission from any of such documents in reliance upon and in
conformity with (i) written information furnished to the Company by or on behalf
of 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 as such in subsection (c)
below; or (ii) any information furnished to the Company in writing by or on
behalf of any Selling Stockholder specifically for use therein; provided further
that with respect to any untrue statement or alleged untrue statement in or
omission or alleged omission from any preliminary Prospectus, the indemnity
agreement contained in this subsection (a) shall not inure to the benefit of the
Underwriter from whom the person asserting any such losses, claims damages or
liabilities purchased the Offered Securities concerned, to the extent that a
prospectus relating to such Offered Securities was required to be delivered by
such Underwriter under the Act in connection with such purchase and any such
loss, claim, damage or liability of such Underwriter results from the fact
-18-
that there was not sent or given to such person, at or prior to the written
confirmation of the sale of such Offered Securities to such person, a copy of
the final Prospectus (exclusive of material incorporated by reference) if the
Company had previously furnished sufficient copies thereof to such Underwriter
as required by Section 5(e) hereof.
(b) The Selling Stockholders, jointly and severally, will indemnify and
hold harmless each Underwriter and the Company, their respective partners,
directors and officers and each person who controls such Underwriter or the
Company within the meaning of Section 15 of the Act, against any losses, claims,
damages or liabilities, joint or several, to which such Underwriter or 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 alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other expenses
reasonably incurred by such Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are
incurred; provided, however, that each Selling Stockholder will only indemnify
the Underwriters and the Company to the extent that any statements in or
omissions from a Registration Statement or the Prospectus are based on written
information furnished to the Company by such Selling Stockholder specifically
for use therein.
(c) 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, and each
Selling Stockholder against any losses, claims, damages or liabilities to which
the Company or such Selling Stockholder 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 or on behalf of
such Underwriter through the Representatives specifically for use therein, and
will reimburse any legal or other expenses reasonably incurred by the Company
and each Selling Stockholder 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 or on
behalf of any Underwriter consists of the following information in the
Prospectus: the concession and reallowance figures appearing in the third
paragraph under the caption "Underwriting" and the information contained in
paragraphs 5, 12 and 13 under the caption "Underwriting."
(d) Promptly after receipt by an indemnified party under this Section of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against an indemnifying party under
subsection (a), (b) or (c) above, notify the indemnifying party of the
commencement thereof; but the failure to notify the indemnifying party shall not
relieve it from any liability that it may have under subsection (a), (b) or (c)
above except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided
further that the failure to notify the indemnifying party shall not relieve it
from any liability that it may have to an indemnified party otherwise than under
subsection (a), (b) or (c) above. In case any such action is brought against any
indemnified party and it notifies an 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 reasonably
-19-
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. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such (i) settlement includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of an indemnified party.
(e) If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an indemnified party under subsection (a), (b) or
(c) above, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of the losses, claims, damages or
liabilities referred to in subsection (a), (b) or (c) above (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other from the offering of the Securities or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of the Company and the Selling Stockholders on
the one hand and the Underwriters on the other in connection with the statements
or omissions which resulted in such losses, claims, damages or liabilities as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the Selling Stockholders 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
Selling Stockholders bear to the total underwriting discounts and commissions
received by the Underwriters. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Selling Stockholders or the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such untrue statement or omission. The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (e) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (e). Notwithstanding the
provisions of this subsection (e), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Securities underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages which such Underwriter has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(f) The obligations of the Company and the Selling Stockholders under this
Section shall be in addition to any liability which the Company and the Selling
Stockholders may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls any Underwriters (as
hereinafter defined) within the meaning of the 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.
-20-
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 of Offered
Securities that such defaulting Underwriter or Underwriters agreed but failed to
purchase does not exceed 10% of the total number of shares of Offered Securities
that the Underwriters are obligated to purchase on such Closing Date, the
Representatives may make arrangements satisfactory to the Company and the
Selling Stockholders for the purchase of such Offered 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 Offered 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 Offered Securities with respect to which such
default or defaults occur exceeds 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date
and arrangements satisfactory to the Representatives, the Company and the
Selling Stockholders for the purchase of such Offered 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, the
Company or the Selling Stockholders, 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 Firm 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. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Selling Stockholders, of the Company or its officers and of the several
Underwriters set forth in or made pursuant to this Agreement will remain in full
force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, any Selling
Stockholder, the Company or any of their respective representatives, officers or
directors and will survive delivery of and payment for the Offered Securities.
If this Agreement is terminated pursuant to Section 8 or if for any reason the
purchase of the Offered Securities by the Underwriters is not consummated, the
Company shall remain responsible for the expenses to be paid or reimbursed by it
pursuant to Section 5 and the respective obligations of the Company, the Selling
Stockholders, and the Underwriters pursuant to Section 7 shall remain in effect,
and if any Offered 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 Offered 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), (v), (vi) or (vii) of Section 6(c), 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 Offered Securities.
10. Notices. All communications hereunder will be in writing and, if sent
to the Underwriters, will be mailed, delivered or faxed and confirmed to the
Underwriters c/o the Representatives at Xxxxxxx Xxxxx & Co., 0000 XxXxxxxx,
Xxxxx 0000, Xxxxxxx, Xxxxx 00000, attention of Xxx Xxxxxx with a copy to Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, 0 Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx 00000, attention of Head of CICG Legal Department. If sent to the
Company, will be mailed, delivered or faxed and confirmed to it at Energy
Partners, Ltd., 000 Xx. Xxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxx
00000, Facsimile No. (000) 000-0000, Attention: Xxxx X. Xxxxx; with a copy to
Xxxxxx Xxxxxx & Xxxxxxx LLP, 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Facsimile
No.: (000) 000-0000, Attention: Xxxx Xxxxxxxx, Esq., or, if sent to the Selling
Stockholders or any of them, will be mailed, delivered or faxed and confirmed to
Evercore Partners, L.L.C. at 00 Xxxx 00xx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx
00000, Facsimile No. (000) 000-0000, Attn: Xxxxx Xxxxxx; with a copy to Xxxxxxx
Xxxxxxx & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Facsimile No. (000) 000-0000, Attn: Xxxxxx X. Xxxx, Esq. provided, however, that
any notice to an Underwriter pursuant to Section 7 will be mailed, delivered or
faxed 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 personal representatives and
successors and the officers and directors and
-21-
controlling persons referred to in Section 7, 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 will be
binding upon all the Underwriters.
13. Counterparts. This Agreement may be executed 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 Agreement.
14. Applicable Law. This Agreement shall 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.
-22-
If the foregoing is in accordance with the Underwriters' understanding
of our agreement, kindly sign and return to the Company one of the counterparts
hereof, whereupon it will become a binding agreement among the Selling
Stockholders, the Company and the Underwriters in accordance with its terms.
Very truly yours,
ENERGY PARTNERS, LTD.
By: /s/ Xxxx X. Xxxxx
----------------------------------------------------
Xxxx X. Xxxxx
Executive Vice President, General Counsel
and Corporate Secretary
EVERCORE CAPITAL PARTNERS L.P.
By: Evercore Partners L.L.C.,
its General Partner,
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Member
EVERCORE CAPITAL PARTNERS (NQ) L.P.
By: Evercore Partners L.L.C.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Member
EVERCORE CAPITAL OFFSHORE PARTNERS L.P.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Attorney-in-Fact
EVERCORE CO-INVESTMENT PARTNERSHIP L.P.
By: Evercore Co-Investment G.P. L.L.C.,
its General Partner,
By: Evercore Partners L.L.C.,
its Managing Member,
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Managing Member
-23-
CONFIRMED AND ACCEPTED, as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
CREDIT SUISSE FIRST BOSTON LLC
DEUTSCHE BANK SECURITIES
XXXXXXXXX & COMPANY, INC.
BY: XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
BY: /s/ Xxxxx Xxxx
-----------------------------
Authorized Signatory
For themselves and as Representatives of the Other Underwriters named in
Schedule B hereto.
-24-
SCHEDULE A
Number of
Securities Purchase
Selling Stockholder to be Sold Price
----------- -----------
Evercore Capital Partners L.P.............................. 2,978,852 $33,251,436
Evercore Capital Offshore Partners L.P..................... 785,663 $8,769,963
Evercore Capital Partners (NQ) L.P......................... 715,368 $7,985,295
Evercore Co-Investment Partnership L.P..................... 64,689 $ 722,091
Total...................................................... 4,544,572 $50,728,785
----------- -----------
SCHEDULE B
Number of
Name of Underwriters Securities
----------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated................................ 1,363,371
Credit Suisse First Boston LLC 1,363,371
Deutsche Bank Securities 681,695
Xxxxxxxxx & Company, Inc. 681,695
Xxxxxx Xxxx, a division of Xxxx Xxxxx Xxxx Xxxxxx, Inc. 151,480
Xxxxxxx Rice & Company L.L.C. 151,480
Xxxxxxxxx Capital Partners 151,480
Total...................................................... 4,544,572
---------
