Superior Offshore International, Inc. (Delaware corporation) 10,166,667 Shares of Common Stock PURCHASE AGREEMENT
Exhibit 1.1
Superior Offshore International, Inc.
(Delaware corporation)
10,166,667 Shares of Common Stock
Dated: April 19, 2007
Superior Offshore International, Inc.
(Delaware corporation)
10,166,667 Shares of Common Stock
(Par Value $0.01 Per Share)
April 19, 2007
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
X.X. Xxxxxx Securities Inc.
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
X.X. Xxxxxx Securities Inc.
as Representatives of the several Underwriters
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Superior Offshore International, Inc., a Delaware corporation (the “Company”), and the persons
listed on Schedule B hereto (the “Selling Stockholders”) confirm their respective agreements with
Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx Xxxxx”) and each
of the other Underwriters named in Schedule A hereto (collectively, the “Underwriters,” which term
shall also include any underwriter substituted as hereinafter provided in Section 10 hereof), for
whom Xxxxxxx Xxxxx and X.X. Xxxxxx Securities Inc. are acting as representatives (in such capacity,
the “Representatives”), with respect to (i) the sale by the Company and the Selling Stockholders,
acting severally and not jointly, and the purchase by the Underwriters, acting severally and not
jointly, of the respective numbers of shares of Common Stock, par value $0.01 per share, of the
Company (“Common Stock”) set forth in Schedule A hereto and (ii) the grant by Xxxxx X. Xxxxxxxx,
Xx. to the Underwriters of the option described in Section 2(b) hereof to purchase all or any part
of 1,525,000 additional shares of Common Stock to cover overallotments, if any. The aforesaid
10,166,667 shares of Common Stock (the “Initial Securities”) to be purchased by the Underwriters
and all or any part of the 1,525,000 shares of Common Stock subject to the option described in
Section 2(b) hereof (the “Option Securities”) are hereinafter called, collectively, the
“Securities.”
The Company and the Selling Stockholders understand that the Underwriters propose to make a
public offering of the Securities as soon as the Representatives deem advisable after this
Agreement has been executed and delivered.
The Company, the Selling Stockholders and the Underwriters agree that up to 433,333 shares of
the Initial Securities to be purchased by the Underwriters (the “Reserved Securities”) shall be
reserved for sale by the Underwriters to certain eligible employees and persons having business
relationships with the
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Company (the “Invitees”), as part of the distribution of the Securities by the Underwriters,
subject to the terms of this Agreement, the applicable rules, regulations and interpretations of
the National Association of Securities Dealers, Inc. and all other applicable laws, rules and
regulations. To the extent that such Reserved Securities are not orally confirmed for purchase by
Invitees by the end of the first business day after the date of this Agreement, such Reserved
Securities may be offered to the public as part of the public offering contemplated hereby.
The Company has filed with the Securities and Exchange Commission (the “Commission”) a
registration statement on Form S-1 (No. 333-136567), including the related preliminary prospectus
or prospectuses, covering the registration of the Securities under the Securities Act of 1933, as
amended (the “1933 Act”). Promptly after execution and delivery of this Agreement, the Company
will prepare and file a prospectus in accordance with the provisions of Rule 430A (“Rule 430A”) of
the rules and regulations of the Commission under the 1933 Act (the “1933 Act Regulations”) and
paragraph (b) of Rule 424 (“Rule 424(b)”) of the 1933 Act Regulations. The information included in
such prospectus that was omitted from such registration statement at the time it became effective
but that is deemed to be part of such registration statement at the time it became effective
pursuant to paragraph (b) of Rule 430A is referred to as “Rule 430A Information.” Each prospectus
used before such registration statement became effective, and any prospectus that omitted the Rule
430A Information, that was used after such effectiveness and prior to the execution and delivery of
this Agreement, is herein called a “preliminary prospectus.” Such registration statement,
including the amendments thereto, the exhibits and any schedules thereto, at the time it became
effective, and including the Rule 430A Information, is herein called the “Registration Statement.”
Any registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations is herein
referred to as the “Rule 462(b) Registration Statement,” and after such filing the term
“Registration Statement” shall include the Rule 462(b) Registration Statement. The final
prospectus in the form first furnished to the Underwriters for use in connection with the offering
of the Securities is herein called the “Prospectus.” For purposes of this Agreement, all
references to the Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the copy filed with the
Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“XXXXX”).
SECTION 1. Representations and Warranties.
(i) Compliance with Registration Requirements. Each of the Registration
Statement, any Rule 462(b) Registration Statement and any post-effective amendment thereto
has become effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement, any Rule 462(b) Registration Statement or any post-effective
amendment thereto has been issued under the 1933 Act and no proceedings for that purpose
have been instituted or are pending or, to the knowledge of the Company, are contemplated by
the Commission, and any request on the part of the Commission for additional information has
been complied with.
At the respective times the Registration Statement, any Rule 462(b) Registration
Statement and any post-effective amendments thereto became effective and at the Closing Time
(and, if any Option Securities are purchased, at the Date of Delivery), the Registration
Statement, any Rule 462(b) Registration Statement and any amendments and supplements thereto
complied and will comply in all material respects with the requirements of the 1933 Act and
the 1933 Act
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Regulations and did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, and the Prospectus, any preliminary prospectus and any
supplement thereto or prospectus wrapper prepared in connection therewith, at their
respective times of issuance and at the Closing Time, complied and will comply in all
material respects with any applicable laws or regulations of foreign jurisdictions in which
the Prospectus and such preliminary prospectus, as amended or supplemented, if applicable,
are distributed in connection with the offer and sale of Reserved Securities. Neither the
Prospectus nor any amendments or supplements thereto (including any prospectus wrapper), at
the time the Prospectus or any such amendment or supplement was issued and at the Closing
Time (and, if any Option Securities are purchased, at the Date of Delivery), included or
will include an untrue statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
As of the Applicable Time (as defined below), neither (x) the Issuer General Use Free
Writing Prospectus (as defined below) issued at or prior to the Applicable Time and the
Statutory Prospectus (as defined below) as of the Applicable Time and the information
included on Schedule F hereto, all considered together (collectively, the “General
Disclosure Package”), nor (y) any individual Issuer Limited Use Free Writing Prospectus,
when considered together with the General Disclosure Package, included any untrue statement
of a material fact or omitted to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made, not
misleading.
As used in this subsection and elsewhere in this Agreement:
“Applicable Time” means 7:00 a.m. (Eastern time) on April 20, 2007 or such other time
as agreed in writing by the Company and the Representatives.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined
in Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the Securities that (i) is
required to be filed with the Commission by the Company, (ii) is a “road show that is a
written communication” within the meaning of Rule 433(d)(8)(i) whether or not required to be
filed with the Commission or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i)
because it contains a description of the Securities or of the offering that does not reflect
the final terms, in each case in the form filed or required to be filed with the Commission
or, if not required to be filed, in the form required to be retained in the Company’s
records pursuant to Rule 433(g).
“Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors (other than a Bona Fide
Electronic Road Show (as defined below)), as evidenced by its being specified in Schedule E
hereto.
“Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is not an Issuer General Use Free Writing Prospectus.
“Statutory Prospectus” as of any time means the prospectus relating to the Securities
that is included in the Registration Statement immediately prior to that time, including any
document incorporated by reference therein.
The Company has made available a “bona fide electronic road show,” as defined in Rule
433, in compliance with Rule 433(d)(8)(ii) (the “Bona Fide Electronic Road Show”) such
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that no filing of any “road show” (as defined in Rule 433(h)) is required in connection
with the offering of the Securities.
Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent times
through the completion of the public offer and sale of the Securities or until any earlier
date that the Company notified or notifies the Representatives as described in Section 3(e),
did not, does not and will not include any information that conflicted, conflicts or will
conflict with the information contained in the Registration Statement or the Prospectus, and
any preliminary or other prospectus deemed to be a part thereof that has not been superseded
or modified.
The representations and warranties in this subsection shall not apply to statements in
or omissions from the Registration Statement, the Prospectus or any Issuer Free Writing
Prospectus made in reliance upon and in conformity with written information furnished to the
Company by any Underwriter through the Representatives expressly for use therein.
Each preliminary prospectus (including the prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto) complied when so filed in
all material respects with the 1933 Act Regulations and each preliminary prospectus and the
Prospectus delivered to the Underwriters for use in connection with this offering was
identical to the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
At the time of filing the Registration Statement, any 462(b) Registration Statement and
any post-effective amendments thereto and at the date hereof, the Company was not and is not
an “ineligible issuer,” as defined in Rule 405 of the 1933 Act Regulations.
(ii) Independent Accountants. The accountants who certified the financial
statements and supporting schedules included in the Registration Statement are independent
public accountants as required by the 1933 Act and the 1933 Act Regulations.
(iii) Financial Statements. The financial statements included in the
Registration Statement, the General Disclosure Package and the Prospectus, together with the
related schedules and notes, present fairly the financial position of the Company and its
consolidated Subsidiaries at the dates indicated and the statement of operations,
stockholders’ equity and cash flows of the Company and its consolidated Subsidiaries for the
periods specified; said financial statements have been prepared in conformity with generally
accepted accounting principles (“GAAP”) applied on a consistent basis throughout the periods
involved. The supporting schedules, if any, present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data and the summary
financial information included in the Prospectus present fairly the information shown
therein and have been compiled on a basis consistent with that of the audited financial
statements included in the Registration Statement. All disclosures contained in the
Registration Statement, the General Disclosure Package or the Prospectus regarding “non-GAAP
financial measures” (as such term is defined by the rules and regulations of the Commission)
comply with Regulation G of the 1934 Act and Item 10 of Regulation S-K of the 1933 Act, to
the extent applicable.
(iv) No Material Adverse Change in Business. Since the respective dates as of
which information is given in the Registration Statement, the General Disclosure Package or
the Prospectus, except as otherwise stated therein, (A) there has been no material adverse
change in the condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its Subsidiaries considered as one enterprise, whether
or not arising in the
5
ordinary course of business (a “Material Adverse Effect”), (B) there have been no
transactions entered into by the Company or any of its Subsidiaries, other than those in the
ordinary course of business, which are material with respect to the Company and its
Subsidiaries considered as one enterprise, and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any class of its capital
stock.
(v) Good Standing of the Company. The Company has been duly organized and is
validly existing as a corporation in good standing under the laws of the State of Delaware
and has corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the General Disclosure Package and the Prospectus and
to enter into and perform its obligations under this Agreement; and the Company is duly
qualified as a foreign corporation to transact business and is in good standing in each
other jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the failure so to
qualify or to be in good standing would not result in a Material Adverse Effect.
(vi) Good Standing of Subsidiaries. Each “significant subsidiary” of the
Company (as such term is defined in Rule 1-02 of Regulation S-X) (each a “Subsidiary” and,
collectively, the “Subsidiaries”) has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its properties and to conduct its
business as described in the Prospectus and is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good standing would not result
in a Material Adverse Effect; except as otherwise disclosed in the General Disclosure
Package and the Prospectus, all of the issued and outstanding capital stock of each such
Subsidiary has been duly authorized and validly issued, is fully paid and non-assessable and
is owned by the Company, directly or through Subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; none of the outstanding
shares of capital stock of any Subsidiary was issued in violation of the preemptive or
similar rights of any securityholder of such Subsidiary. The only Subsidiaries of the
Company are the Subsidiaries listed on Exhibit 21 to the Registration Statement.
(vii) Capitalization. The authorized, issued and outstanding capital stock of
the Company is as set forth in the Prospectus in the column entitled “Actual” under the
caption “Capitalization” (except for subsequent issuances, if any, pursuant to this
Agreement, pursuant to reservations, agreements or employee benefit plans referred to in the
General Disclosure Package and the Prospectus or pursuant to the exercise of convertible
securities or options referred to in the General Disclosure Package and the Prospectus or
pursuant to the Reorganization referred to in the General Disclosure Package and the
Prospectus). The shares of issued and outstanding capital stock, including the Securities
to be purchased by the Underwriters from the Selling Stockholders, have been duly authorized
and validly issued and are fully paid and non-assessable; none of the outstanding shares of
capital stock, including the Securities to be purchased by the Underwriters from the Selling
Stockholders, was issued in violation of the preemptive or other similar rights of any
securityholder of the Company.
(viii) Authorization of Agreement. This Agreement has been duly authorized,
executed and delivered by the Company.
(ix) Authorization and Description of Securities. The Securities to be
purchased by the Underwriters from the Company have been duly authorized for issuance and
sale to the
6
Underwriters pursuant to this Agreement and, when issued and delivered by the Company
pursuant to this Agreement against payment of the consideration set forth herein, will be
validly issued and fully paid and non-assessable; the Common Stock conforms in all material
respects to all statements relating thereto contained in the General Disclosure Package and
the Prospectus and such description conforms in all material respects to the rights set
forth in the instruments defining the same; no holder of the Securities will be subject to
personal liability by reason of being such a holder; and the issuance of the Securities is
not subject to the preemptive or other similar rights of any securityholder of the Company.
(x) Absence of Defaults and Conflicts. Neither the Company nor any of its
Subsidiaries is in violation of its charter or by-laws 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 would not reasonably be expected to result in a Material Adverse Effect; and the
execution, delivery and performance of this Agreement and the consummation of the
transactions contemplated herein and in the General Disclosure Package and the Prospectus
(including the issuance and sale of the Securities and the use of the proceeds from the sale
of the Securities as described in the General Disclosure Package and the Prospectus under
the caption “Use of Proceeds,” and the Reorganization (as such term is defined in the
General Disclosure Package and the Prospectus)) and compliance by the Company with its
obligations hereunder 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 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, defaults or Repayment Events or liens,
charges or encumbrances that would not result in a Material Adverse Effect and for such
Repayment Events as are described in the General Disclosure Package and the Prospectus), 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 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. 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.
(xi) Absence of Labor Dispute. No labor dispute with the employees of the
Company or any Subsidiary exists or, to the knowledge of the Company, is imminent, and the
Company is not aware of any existing or imminent labor disturbance by the employees of any
of its or any Subsidiary’s principal suppliers, manufacturers, customers or contractors,
which, in either case, would reasonably be expected to result in a Material Adverse Effect.
(xii) Absence of Proceedings. There is no action, suit, proceeding, inquiry or
investigation before or brought by any court or governmental agency or body, domestic or
foreign, now pending, or, to the knowledge of the Company, threatened, against or affecting
the Company or any Subsidiary, which is required to be disclosed in the General Disclosure
Package and the Prospectus (other than as disclosed therein), or which could reasonably be
expected to result in a Material Adverse Effect, or which could reasonably be expected to
materially and
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adversely affect the properties or assets thereof or the consummation of the
transactions contemplated in this Agreement or the performance by the Company of its
obligations hereunder; the aggregate of all pending legal or governmental proceedings to
which the Company or any Subsidiary is a party or of which any of their respective property
or assets is the subject which are not described in the General Disclosure Package and the
Prospectus, including ordinary routine litigation incidental to the business, could not
result in a Material Adverse Effect.
(xiii) Accuracy of Exhibits. There are no contracts or documents which are
required to be described in the General Disclosure Package or the Prospectus or to be filed
as exhibits thereto which have not been so described and filed as required.
(xiv) Possession of Intellectual Property. The Company and its Subsidiaries
own or possess, or can acquire on reasonable terms, adequate patents, patent rights,
licenses, inventions, copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property (collectively,
“Intellectual Property”) necessary to carry on the business now operated by them, and
neither the Company nor any of its Subsidiaries has received any notice or is otherwise
aware of any infringement of or conflict with asserted rights of others with respect to any
Intellectual Property or of any facts or circumstances which would render any Intellectual
Property invalid or inadequate to protect the interest of the Company or any of its
Subsidiaries therein, and which infringement or conflict (if the subject of any unfavorable
decision, ruling or finding) or invalidity or inadequacy, singly or in the aggregate, would
result in a Material Adverse Effect.
(xv) Absence of Further Requirements. No filing with, or authorization,
approval, consent, license, order, registration, qualification or decree of, any court or
governmental authority or agency is necessary or required for the performance by the Company
of its obligations hereunder, in connection with the offering, issuance or sale of the
Securities hereunder or the consummation of the transactions contemplated by this Agreement,
except (i) such as have been already obtained or as may be required under the 1933 Act or
the 1933 Act Regulations or state securities laws, (ii) such filings with the Secretary of
State of the State of Delaware or the State of Louisiana to effect the merger of Superior
Offshore International, L.L.C. into the Company (the “Reorganization”) and (iii) such as
have been obtained under the laws and regulations of jurisdictions outside the United States
in which the Reserved Securities are offered.
(xvi) Absence of Manipulation. Neither the Company nor any affiliate of the
Company has taken, nor will the Company or any affiliate take, directly or indirectly, any
action which is designed to or which has constituted or which would be expected to cause or
result in stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.
(xvii) Possession of Licenses and Permits. The Company and its Subsidiaries
possess such permits, licenses, approvals, consents and other authorizations (collectively,
“Governmental Licenses”) issued by the appropriate federal, state, local or foreign
regulatory agencies or bodies necessary to conduct the business now operated by them, except
where the failure so to possess would not, singly or in the aggregate, reasonably be
expected to result in a Material Adverse Effect; the Company and its Subsidiaries are in
compliance with the terms and conditions of all such Governmental Licenses, except where the
failure so to comply would not, singly or in the aggregate, reasonably be expected to result
in a Material Adverse Effect; all of the Governmental Licenses are valid and in full force
and effect, except when the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not,
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singly or in the aggregate, reasonably be expected to result in a Material Adverse
Effect; and neither the Company nor any of its Subsidiaries has received any notice of
proceedings relating to the revocation or modification of any such Governmental Licenses
which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would reasonably be expected to result in a Material Adverse Effect.
(xviii) Title to Property. The Company and its Subsidiaries have good and
marketable title to all real property owned by the Company and its Subsidiaries and good
title to all other properties owned by them, in each case, free and clear of all mortgages,
pledges, liens, security interests, claims, restrictions or encumbrances of any kind except
such as (a) are described in the Prospectus or (b) do not, singly or in the aggregate,
materially affect the value of such property and do not interfere with the use made and
proposed to be made of such property by the Company or any of its Subsidiaries; and all of
the leases and subleases 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, are in full force and effect, and neither the
Company nor any Subsidiary has any notice of any material claim of any sort that has been
asserted by anyone adverse to the rights of the Company or any Subsidiary under any of the
leases or subleases mentioned above, or affecting or questioning the rights of the Company
or such Subsidiary to the continued possession of the leased or subleased premises under any
such lease or sublease.
(xix) Investment Company Act. The Company is not required, and upon the
issuance and sale of the Securities as herein contemplated and the application of the net
proceeds therefrom as described in the Prospectus will not be required, to register as an
“investment company” under the Investment Company Act of 1940, as amended (the “1940 Act”).
(xx) Environmental Laws. Except as described in the General Disclosure Package
and the Prospectus and except as would not, singly or in the aggregate, reasonably be
expected to result in a Material Adverse Effect, (A) neither the Company nor any of its
Subsidiaries is in violation of any federal, state, local or foreign statute, law, rule,
regulation, ordinance or any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent, decree or judgment, relating to pollution or
protection of the environment (including, without limitation, ambient air, surface water,
groundwater, land surface or subsurface strata) or wildlife, including, without limitation,
laws and regulations relating to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum
products or asbestos-containing materials (collectively, “Hazardous Materials”) or to the
manufacture, processing, distribution, use, treatment, storage, disposal, transport or
handling of Hazardous Materials (collectively, “Environmental Laws”), (B) the Company and
its Subsidiaries have all permits, authorizations and approvals required under any
applicable Environmental Laws and are each in compliance with their requirements, (C) there
are no pending or, to the knowledge of the Company, threatened administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of noncompliance or
violation or proceedings relating to any Environmental Law against the Company or any of its
Subsidiaries and (D) to the knowledge of the Company, there are no events or circumstances
that would reasonably be expected to form the basis of an order for clean-up or remediation,
or an action, suit or proceeding by any private party or governmental body or agency,
against or affecting the Company or any of its Subsidiaries relating to Hazardous Materials
or any Environmental Laws.
(xxi) Registration Rights. Except as described in the General Disclosure
Package and the Prospectus, there are no persons with registration rights or other similar
rights to have any
9
securities registered pursuant to the Registration Statement or otherwise registered by
the Company under the 1933 Act.
(xxii) Accounting Controls. The Company and each of its Subsidiaries maintain
a system of internal accounting controls sufficient (as defined in Rule 13a-15(f) of the
Exchange Act) to provide reasonable assurances that (A) transactions are executed in
accordance with management’s general or specific authorization; (B) transactions are
recorded as necessary to permit preparation of financial statements in conformity with GAAP
and to maintain accountability for assets; (C) access to assets is permitted only in
accordance with management’s general or specific authorization; and (D) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Except as described in the
General Disclosure Package and the Prospectus, since the end of the Company’s most recent
audited fiscal year, there has been (1) no material weakness in the Company’s internal
control over financial reporting (whether or not remediated) and (2) no change in the
Company’s internal control over financial reporting that has materially affected, or is
reasonably likely to materially affect, the Company’s internal control over financial
reporting.
(xxiii) Compliance with the Xxxxxxxx-Xxxxx Act. The Company has taken all
necessary actions to ensure that, upon the effectiveness of the Registration Statement, it
will be in compliance with all provisions of the Xxxxxxxx-Xxxxx Act of 2002 and all rules
and regulations promulgated thereunder or implementing the provisions thereof (the
“Xxxxxxxx-Xxxxx Act”) that are then in effect and which the Company is required to comply
with as of the effectiveness of the Registration Statement, and is actively taking steps to
ensure that it will be in compliance with other provisions of the Xxxxxxxx-Xxxxx Act
currently in effect or which will become applicable to the Company at such times as such
provisions become applicable to the Company.
(xxiv) Payment of Taxes. All United States federal income tax returns of the
Company and its Subsidiaries required by law to be filed have been filed and all taxes shown
by such returns or otherwise assessed, which are due and payable, have been paid, except
assessments against which appeals have been or will be promptly taken and as to which
adequate reserves have been provided. The United States federal income tax returns of the
Company through the fiscal year ended December 31, 2005 have been settled and no assessment
in connection therewith has been made against the Company. The Company and its Subsidiaries
have filed all other tax returns that are required to have been filed by them pursuant to
applicable foreign, state, local or other law except insofar as the failure to file such
returns would not result in a Material Adverse Effect, and has paid all taxes due pursuant
to such returns or pursuant to any assessment received by the Company and its Subsidiaries,
except for such taxes, if any, as are being contested in good faith and as to which adequate
reserves have been provided. The charges, accruals and reserves on the books of the Company
in respect of any income and corporation tax liability for any years not finally determined
are adequate to meet any assessments or re-assessments for additional income tax for any
years not finally determined, except to the extent of any inadequacy that would not result
in a Material Adverse Effect.
(xxv) Insurance. The Company and its Subsidiaries carry or are entitled to the
benefits of insurance, with financially sound and reputable insurers, in such amounts and
covering such risks as is generally maintained by companies of established repute engaged in
the same or similar business, and all such insurance is in full force and effect. The
Company has no reason to believe that it or any Subsidiary will not be able (A) to renew its
existing insurance coverage as and when such policies expire or (B) to obtain comparable
coverage from similar institutions as may be necessary or appropriate to conduct its
business as now conducted and at a cost that
10
would not result in a Material Adverse Effect. Neither of the Company nor any
Subsidiary has been denied any insurance coverage which it has sought or for which it has
applied.
(xxvi) Statistical and Market-Related Data. Any statistical and market-related
data included in the General Disclosure Package and the Prospectus are based on or derived
from sources that the Company believes to be reliable and accurate in all material respects.
(xxvii) Foreign Corrupt Practices Act. Neither the Company nor, to the
knowledge of the Company, any director, officer, agent, employee, affiliate or other person
acting on behalf of the Company or any of its Subsidiaries is aware of or has taken any
action, directly or indirectly, that would result in a violation by such persons of the
Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder
(the “FCPA”), including, without limitation, making use of the mails or any means or
instrumentality of interstate commerce corruptly in furtherance of an offer, payment,
promise to pay or authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to any “foreign
official” (as such term is defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in contravention of the FCPA and the
Company and, to the knowledge of the Company, its affiliates have conducted their businesses
in compliance with the FCPA and have instituted and maintain policies and procedures
designed to ensure, and which are reasonably expected to continue to ensure, continued
compliance therewith.
(xxviii) Money Laundering Laws. The operations of the Company are and have
been conducted at all times in compliance with applicable financial recordkeeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all applicable jurisdictions, the rules and
regulations thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency (collectively, the “Money Laundering
Laws”) and no action, suit or proceeding by or before any court or governmental agency,
authority or body or any arbitrator involving the Company with respect to the Money
Laundering Laws is pending or, to the knowledge of the Company, threatened.
(xxix) Operation of Vessels. The description of services to be performed by
non-coastwise qualified vessels set forth in the General Disclosure Package and the
Prospectus completely and correctly describes in all material respects the manner in which
the Company and its Subsidiaries currently operate the marine vessels described in the
General Disclosure Package and the Prospectus (the “Vessels”). At no time during the
Company’s or any Subsidiary’s ownership, use or operation of the Vessels have any of the
Vessels been operated, sold, chartered or otherwise transferred by the Company or its
Subsidiaries to any person or entity in violation of any applicable laws, rules or
regulations, except for such violations which would not, singly or in the aggregate, have a
Material Adverse Effect. The Vessels and classifications of such Vessels are appropriate for
the Company’s business, except for Vessels or classifications which would not, singly or in
the aggregate, have a Material Adverse Effect.
(xxx) Reserved Securities Sales. The Company has not offered, or caused the
Representatives to offer, Reserved Securities to any person with the specific intent to
unlawfully influence (i) a customer or supplier of the Company or any of its affiliates to
alter the customer’s or supplier’s level or type of business with any such entity or (ii) a
trade journalist or publication to write or publish favorable information about the Company
or any of its affiliates, or their respective businesses or products.
11
(i) Accurate Disclosure. The information that relates specifically to such
Selling Stockholder, as set forth in the Prospectus under the caption “Principal and Selling
Stockholders”, does not contain, and as amended or supplemented, will not contain any untrue
statement of a material fact or omits 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; such Selling Stockholder is not prompted to sell the Securities to be sold by
such Selling Stockholder hereunder by any information concerning the Company or any
Subsidiary of the Company which is not set forth in the General Disclosure Package or the
Prospectus.
(ii) Authorization of this Agreement. This Agreement has been duly authorized,
executed and delivered by or on behalf of such Selling Stockholder.
(iii) Noncontravention. The execution and delivery of this Agreement and the
sale and delivery of the Securities to be sold by such Selling Stockholder and the
consummation of the transactions contemplated herein and compliance by such Selling
Stockholder with its obligations hereunder do not and will not, whether with or without the
giving of notice or passage of time or both, conflict with or constitute a breach of, or
default under, or result in the creation or imposition of any tax, lien, charge or
encumbrance upon the Securities to be sold by such Selling Stockholder or any property or
assets of such Selling Stockholder pursuant to any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, license, lease or other agreement or instrument to
which such Selling Stockholder is a party or by which such Selling Stockholder may be bound,
or to which any of the property or assets of such Selling Stockholder is subject, other than
such conflict, breach, default, tax, lien, charge or encumbrance as would not have a
Material Adverse Effect on the ability of such Selling Stockholder to consummate the
transactions contemplated hereby, nor will such action result in any violation of the
provisions of the charter or by-laws or other organizational instrument of such Selling
Stockholder, if applicable, or any applicable treaty, law, statute, rule, regulation,
judgment, order, writ or decree of any government, government instrumentality or court,
domestic or foreign, having jurisdiction over such Selling Stockholder or any of its
properties.
(iv) Certificates Suitable for Transfer. The Securities to be sold by such
Selling Stockholder pursuant to this Agreement are certificated securities in registered
form and are not held in any securities account or by or through any securities intermediary
within the meaning of the Uniform Commercial Code as in effect in the State of New York (the
“UCC”).
(v) Valid Title. Such Selling Stockholder has, and at each Date of Delivery
will have, valid title to the Securities to be sold by such Selling Stockholder free and
clear of all security interests, claims, liens, equities or other encumbrances and the legal
right and power, and all authorization and approval required by law, to enter into this
Agreement and to sell, transfer and deliver the Securities to be sold by such Selling
Stockholder.
(vi) Delivery of Securities. Upon the Underwriters’ acquiring possession of
the Securities to be sold by such Selling Stockholder and paying the purchase price therefor
pursuant to this Agreement, the Underwriters (assuming that no such Underwriter has notice
of any “adverse claim,” within the meaning of Section 8-105 of the New York Uniform
Commercial Code, to such Securities) will acquire their respective interests in such
Securities (including,
12
without limitation, all rights that such Selling Stockholder had or has the power to
transfer in such Securities) free and clear of any adverse claim within the meaning of
Section 8-102 of the New York Uniform Commercial Code.
(vii) Absence of Manipulation. Such Selling Stockholder has not taken, and
will not take, directly or indirectly, any action which is designed to or which has
constituted or would be expected to cause or result in stabilization or manipulation of the
price of any security of the Company to facilitate the sale or resale of the Securities.
(viii) Absence of Further Requirements. No filing with, or consent, approval,
authorization, order, registration, qualification or decree of, any court or governmental
authority or agency, domestic or foreign, is necessary or required for the performance by
each Selling Stockholder of its obligations hereunder, or in connection with the sale and
delivery of the Securities hereunder or the consummation of the transactions contemplated by
this Agreement, except (i) such as may have previously been made or obtained or as may be
required under the 1933 Act or the 1933 Act Regulations or state securities laws, (ii) such
filings with the Secretary of State of the State of Delaware or the State of Louisiana to
effect the Reorganization and (iii) such as have been obtained under the laws and
regulations of jurisdictions outside the United States in which the Reserved Securities are
offered.
(ix) No Association with NASD. Neither such Selling Stockholder nor any of his
or its affiliates directly, or indirectly through one or more intermediaries, controls, or
is controlled by, or is under common control with, or is a person associated with (within
the meaning of Article I(dd) of the By-laws of the National Association of Securities
Dealers, Inc.), any member firm of the National Association of Securities Dealers, Inc.
(x) Reserved Securities Sales. Neither Selling Stockholder has offered, or
caused the Representatives to offer, Reserved Securities to any person with the specific
intent to unlawfully influence (i) a customer or supplier of the Company or any of its
affiliates to alter the customer’s or supplier’s level or type of business with any such
entity or (ii) a trade journalist or publication to write or publish favorable information
about the Company or any of its affiliates, or their respective businesses or products.
SECTION 2. Sale and Delivery to Underwriters; Closing.
13
provisions of Section 10 hereof, bears to the total number of Initial Securities, subject, in
each case, to such adjustments among the Underwriters as the Representatives in their sole
discretion shall make to eliminate any sales or purchases of fractional securities.
In addition, in the event that any or all of the Option Securities are purchased by the
Underwriters, payment of the purchase price for, and delivery of certificates for, such Option
Securities shall be made at the above-mentioned offices, or at such other place as shall be agreed
upon by the Representatives and the Company and Xxxxx X. Xxxxxxxx, Xx., on each Date of Delivery as
specified in the notice from the Representatives to the Company and Xxxxx X. Xxxxxxxx, Xx.
Payment shall be made to the Company and the Selling Stockholders by wire transfer of
immediately available funds to bank accounts designated by the Company or the Selling Stockholders,
as the case may be, against delivery to the Representatives for the respective accounts of the
Underwriters of certificates for the Securities to be purchased by them. It is understood that
each Underwriter has authorized the Representatives, for its account, to accept delivery of,
receipt for, and make payment of the purchase price for, the Initial Securities and the Option
Securities, if any, which it has agreed to purchase. Xxxxxxx Xxxxx, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make payment of the
purchase price for the Initial Securities or the Option Securities, if any, to be purchased by any
Underwriter whose funds have not been received by the Closing Time or the relevant Date of
Delivery, as the case may be, but such payment shall not relieve such Underwriter from its
obligations hereunder.
14
(d) Denominations; Registration. Certificates for the Initial Securities and the Option
Securities, if any, shall be in such denominations and registered in such names as the
Representatives may request in writing at least one full business day before the Closing Time or
the relevant Date of Delivery, as the case may be. The certificates for the Initial Securities and
the Option Securities, if any, will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M. (Eastern time) on the business
day prior to the Closing Time or the relevant Date of Delivery, as the case may be.
SECTION 3. Covenants of the Company and the Selling Stockholders. The Company
covenants with each Underwriter as follows:
15
amendment thereto (without exhibits) for each of the Underwriters. The copies of the
Registration Statement and each amendment thereto furnished to the Underwriters will be identical
to the electronically transmitted copies thereof filed with the Commission pursuant to XXXXX,
except to the extent permitted by Regulation S-T.
16
17
may be, is hereinafter referred to as a “Permitted Free Writing Prospectus.” Each of the
Company and each Selling Stockholder represents that it has treated or agrees that it will treat
each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule
433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted
Free Writing Prospectus, including timely filing with the Commission where required, legending and
record keeping.
SECTION 4. Payment of Expenses.
18
SECTION 5. Conditions of Underwriters’ Obligations. The obligations of the several
Underwriters hereunder are subject to the accuracy of the representations and warranties of the
Company and the Selling Stockholders contained in Section 1 hereof or in certificates of any
officer of the Company or any Subsidiary of the Company or on behalf of any Selling Stockholder
delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and
other obligations hereunder, and to the following further conditions:
(e) Opinion of Counsel for Underwriters. At Closing Time, the Representatives shall have
received the favorable opinion, dated as of Closing Time, of Xxxxxx & Xxxxxx L.L.P., counsel for
the Underwriters, in form and substance satisfactory to counsel for the Underwriters, together with
signed or reproduced copies of such letter for each of the other Underwriters. In giving such
opinion such counsel may rely, as to all matters governed by the laws of jurisdictions other than
the law of the State of New York, the federal law of the United States and the General Corporation
Law of the State of Delaware, upon the opinions of counsel satisfactory to the Representatives.
Such counsel may also state that, insofar as such opinion involves factual matters, they have
relied, to the extent they deem proper, upon certificates of officers of the Company and its
Subsidiaries and certificates of public officials.
19
the Company, dated as of Closing Time, in their capacities as officers of the Company, to the
effect that (i) there has been no such material adverse change, (ii) the representations and
warranties in Section 1(a) hereof are true and correct with the same force and effect as though
expressly made at and as of Closing Time, (iii) the Company has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied at or prior to Closing Time, and
(iv) no stop order suspending the effectiveness of the Registration Statement has been issued and
no proceedings for that purpose have been instituted or are pending or, to their knowledge,
contemplated by the Commission.
(m) Reorganization. At Closing Time, the Reorganization shall have been duly and validly
completed.
(i) Officers’ Certificate. A certificate, dated such Date of Delivery, of the
President or a Vice President of the Company and of the chief financial or chief accounting
officer of the Company confirming that the certificate delivered at the Closing Time
pursuant to Section 5(d) hereof remains true and correct as of such Date of Delivery.
20
(ii) Certificate of Xxxxx X. Xxxxxxxx, Xx. A certificate, dated such Date of
Delivery, of Xxxxx X. Xxxxxxxx, Xx. dated as of the Delivery Date, to the effect that (i)
the representations and warranties of Xxxxx X. Xxxxxxxx, Xx. contained in Section 1(b)
hereof are true and correct in all respects with the same force and effect as though
expressly made at and as of the Delivery Date and (ii) that Xxxxx X. Xxxxxxxx, Xx. has
complied in all material respects with all agreements and all conditions on its part to be
performed under this Agreement at or prior to the Delivery Date.
(iii) Opinion of Counsel for Company. The favorable opinion of Xxxxxxxxx &
Xxxxxxxx LLP, counsel for the Company, in form and substance satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option Securities to be purchased
on such Date of Delivery and otherwise to the same effect as the opinion required by Section
5(b) hereof.
(iv) Opinion of General Counsel of the Company. The favorable opinion of R.
Xxxxxx Xxxx, Xx., General Counsel of the Company, in form and substance satisfactory to
counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities
to be purchased on such Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(c) hereof.
(v) Opinion of Counsel for Xxxxx X. Xxxxxxxx, Xx. The favorable opinion of
Xxxxxxxxx & Xxxxxxxx LLP, counsel for Xxxxx X. Xxxxxxxx, Xx., in form and substance
satisfactory to counsel for the Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery.
(vi) Opinion of Counsel for Underwriters. The favorable opinion of Xxxxxx &
Xxxxxx L.L.P., counsel for the Underwriters, dated such Date of Delivery, relating to the
Option Securities to be purchased on such Date of Delivery and otherwise to the same effect
as the opinion required by Section 5(c) hereof.
(vii) Bring-down Comfort Letter. A letter from KPMG LLP, in form and substance
reasonably satisfactory to the Representatives and dated such Date of Delivery,
substantially in the same form and substance as the letter furnished to the Representatives
pursuant to Section 5(f) hereof, except that the “specified date” in the letter furnished
pursuant to this paragraph shall be a date not more than five days prior to such Date of
Delivery.
21
party to any other party except as provided in Section 4 and except that Sections 1, 6, 7 and
8 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification.
(i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement (or any amendment thereto), including the Rule 430A
Information, or the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material fact included in any
preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any
amendment or supplement thereto), or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission; provided that (subject to Section 6(d) below) any such
settlement is effected with the written consent of the Company and the Selling Stockholders;
(iii) against any and all expense whatsoever, as incurred (including the reasonable
fees and disbursements of counsel chosen by the Representatives), reasonably incurred in
investigating, preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any such alleged untrue
statement or omission, to the extent that any such expense is not paid under (i) or (ii)
above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives expressly for
use in the Registration Statement (or any amendment thereto), including the Rule 430A Information,
or any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (or any
amendment or supplement thereto).
(2) The Selling Stockholders, severally and not jointly, agree to indemnify and hold harmless each
Underwriter, its Affiliates, its selling agents and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act to the
extent and in the manner set forth in clauses (a)(i), (ii) and (iii) above; provided,
however, that the foregoing indemnity shall only apply to the extent that the untrue
statement or omission or alleged untrue statement or omission was made in reliance upon and in
conformity with information furnished in writing by or on behalf of such Selling Stockholder
expressly for use in the Registration Statement (or any amendment thereto), including the Rule 430A
Information, or any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus
(or any amendment or supplement thereto); provided, further, that the foregoing
indemnity shall not apply to any loss, liability, claim, damage or expense to the extent arising
out of any untrue
22
statement or omission or alleged untrue statement or omission made in reliance upon and in
conformity with written information furnished to the Company by any Underwriter through Xxxxxxx
Xxxxx expressly for use in the Registration Statement (or any amendment thereto), including the
Rule 430A Information, or any preliminary prospectus, any Issuer Free Writing Prospectus or the
Prospectus (or any amendment or supplement thereto). Notwithstanding anything to the contrary
contained in this Agreement, the aggregate amount of the Selling Stockholders’ indemnity
obligations under this Section 6 and contribution obligations under Section 7 shall not exceed (i)
the amount of gross proceeds received by the Company from the sale of the Initial Securities
pursuant to this Agreement that is used to pay the cash dividend paid to the Selling Stockholders
immediately prior to the consummation of the offering of the Securities and (ii) the gross proceeds
received by the Selling Stockholders from the sale of the Securities pursuant to this Agreement.
23
contemplated by Section 6(a)(1)(ii) or settlement of any claim in connection with any
violation referred to in Section 6(e) effected without its written consent if (i) such settlement
is entered into more than 45 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall
not have reimbursed such indemnified party in accordance with such request prior to the date of
such settlement.
SECTION 7. Contribution. If the indemnification provided for in Section 6 hereof is
for any reason unavailable to or insufficient to hold harmless an indemnified party in respect of
any losses, liabilities, claims, damages or expenses referred to therein, then in lieu of
indemnifying such indemnified party thereto each indemnifying party shall contribute to the
aggregate amount of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Selling Stockholders on the one hand and the Underwriters
on the other hand from the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company and the Selling Stockholders on the one hand and of the Underwriters
on the other hand in connection with the statements or omissions, or in connection with any
violation of the nature referred to in Section 6(e) hereof, which resulted in such losses,
liabilities, claims, damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company and the Selling Stockholders on the one hand and
the Underwriters on the other hand in connection with the offering of the Securities pursuant to
this Agreement shall be deemed to be in the same respective proportions as the total net proceeds
from the offering of the Securities pursuant to this Agreement (before deducting expenses) received
by the Company and the Selling Stockholders and the total underwriting discount received by the
Underwriters, in each case as set forth on the cover of the Prospectus bear to the aggregate
initial public offering price of the Securities as set forth on the cover of the Prospectus.
The relative fault of the Company and the Selling Stockholders on the one hand and the
Underwriters on the other hand shall be determined by reference to, among other things, whether any
such
24
untrue or alleged untrue statement of a material fact or omission or alleged omission to state
a material fact relates to information supplied by the Company or the Selling Stockholders or by
the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission or any violation of the nature referred to in
Section 6(e) hereof.
The Company, the Selling Stockholders and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations referred to above in this
Section 7. The aggregate amount of losses, liabilities, claims, damages and expenses incurred by
an indemnified party and referred to above in this Section 7 shall be deemed to include any legal
or other expenses reasonably incurred by such indemnified party in investigating, preparing or
defending against any litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason of any such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the
0000 Xxx) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person, if any, who controls an Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act and each Underwriter’s
Affiliates and selling agents shall have the same rights to contribution as such Underwriter, and
each director of the Company, each officer of the Company who signed the Registration Statement,
and each person, if any, who controls the Company or any Selling Stockholder within the meaning of
Section 15 of the 1933 Act or Section 20 of the 1934 Act shall have the same rights to contribution
as the Company or such Selling Stockholder. The Underwriters’ respective obligations to contribute
pursuant to this Section 7 are several in proportion to the number of Initial Securities set forth
opposite their respective names in Schedule A hereto and not joint.
The provisions of this Section shall not affect any agreement among the Company and the
Selling Stockholders with respect to contribution.
SECTION 8. Representations, Warranties and Agreements to Survive. All
representations, warranties and agreements contained in this Agreement or in certificates of
officers of the Company or any of its Subsidiaries or the Selling Stockholders submitted pursuant
hereto, shall remain operative and in full force and effect regardless of (i) any investigation
made by or on behalf of any Underwriter or its Affiliates or selling agents, any person controlling
any Underwriter, its officers or directors, any person controlling the Company or any person
controlling any Selling Stockholders and (ii) delivery of and payment for the Securities.
SECTION 9. Termination of Agreement.
25
given in the Prospectus or General Disclosure Package, any Material Adverse Effect, or (ii) if
there has occurred any material adverse change in the financial markets in the United States or the
international financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the effect of which is such
as to make it, in the judgment of the Representatives, impracticable or inadvisable to market the
Securities or to enforce contracts for the sale of the Securities, or (iii) if trading in any
securities of the Company has been suspended or materially limited by the Commission or the Nasdaq
Global Market, or if trading generally on the American Stock Exchange or the New York Stock
Exchange or in the Nasdaq Global Market has been suspended or materially limited, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices have been required, by any
of said exchanges or by such system or by order of the Commission, the NASD or any other
governmental authority, or (iv) a material disruption has occurred in commercial banking or
securities settlement or clearance services in the United States or (v) if a banking moratorium has
been declared by either Federal or New York authorities.
SECTION 10. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail at the Closing Time or a Date of Delivery to purchase the Securities which
it or they are obligated to purchase under this Agreement (the “Defaulted Securities”), the
Representatives shall have the right, within 24 hours thereafter, to make arrangements for one or
more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less
than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms
herein set forth; if, however, the Representatives shall not have completed such arrangements
within such 24-hour period, then:
(i) if the number of Defaulted Securities does not exceed 10% of the number of
Securities to be purchased on such date, each of the non-defaulting Underwriters shall be
obligated, severally and not jointly, to purchase the full amount thereof in the proportions
that their respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(ii) if the number of Defaulted Securities exceeds 10% of the number of Securities to
be purchased on such date, this Agreement or, with respect to any Date of Delivery which
occurs after the Closing Time, the obligation of the Underwriters to purchase and of the
Selling Stockholders to sell the Option Securities to be purchased and sold on such Date of
Delivery shall terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting Underwriter from
liability in respect of its default.
In the event of any such default which does not result in a termination of this Agreement or,
in the case of a Date of Delivery which is after the Closing Time, which does not result in a
termination of the obligation of the Underwriters to purchase and the Selling Stockholders to sell
the relevant Option Securities, as the case may be, either the (i) Representatives or (ii) the
Company and the Selling Stockholders shall have the right to postpone the Closing Time or the
relevant Date of Delivery, as the case may be, for a period not exceeding seven days in order to
effect any required changes in the Registration Statement or Prospectus or in any other documents
or arrangements. As used herein, the term “Underwriter” includes any person substituted for an
Underwriter under this Section 10.
26
SECTION 11. Default by one or more of the Selling Stockholders or the Company. (a) If
a Selling Stockholder shall fail at a Date of Delivery to sell and deliver the number of Securities
which such Selling Stockholder is obligated to sell hereunder, and neither the remaining Selling
Stockholder nor the Company exercises the right hereby granted to increase, pro rata or otherwise,
the number of Securities to be sold by such Selling Stockholder or the Company hereunder, as
applicable, to the total number to be sold by all Selling Stockholders as set forth in Schedule B
hereto, then the Underwriters may, at option of the Representatives, by notice from the
Representatives to the Company and the non-defaulting Selling Stockholder, either (i) terminate
this Agreement without any liability on the fault of any non-defaulting party except that the
provisions of Sections 1, 4, 6, 7 and 8 shall remain in full force and effect or (ii) elect to
purchase the Securities which the non-defaulting Selling Stockholder and the Company have agreed to
sell hereunder. No action taken pursuant to this Section 11 shall relieve any Selling Stockholder
so defaulting from liability, if any, in respect of such default.
In the event of a default by a Selling Stockholder as referred to in this Section 11, each of
the Representatives and the Company and the non-defaulting Selling Stockholder shall have the right
to postpone the relevant Date of Delivery for a period not exceeding seven days in order to effect
any required change in the Registration Statement or Prospectus or in any other documents or
arrangements.
(b) If the Company shall fail at Closing Time to sell the number of Securities that it is
obligated to sell hereunder, then this Agreement shall terminate without any liability on the part
of any nondefaulting party; provided, however, that the provisions of Sections 1,
4, 6, 7 and 8 shall remain in full force and effect. No action taken pursuant to this Section
shall relieve the Company from liability, if any, in respect of such default.
SECTION 12. Tax Disclosure. Notwithstanding any other provision of this Agreement,
immediately upon commencement of discussions with respect to the transactions contemplated hereby,
the Company (and each employee, representative or other agent of the Company) may disclose to any
and all persons, without limitation of any kind, the tax treatment and tax structure of the
transactions contemplated by this Agreement and all materials of any kind (including opinions or
other tax analyses) that are provided to the Company relating to such tax treatment and tax
structure. For purposes of the foregoing, the term “tax treatment” is the purported or claimed
federal income tax treatment of the transactions contemplated hereby, and the term “tax structure”
includes any fact that may be relevant to understanding the purported or claimed federal income tax
treatment of the transactions contemplated hereby.
SECTION 13. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by any standard form
of telecommunication. Notices to the Underwriters shall be directed to the Representatives at 4
World Financial Center, New York, New York 10080, attention of Xxxxx Xxxxxxxxxxx and X.X. Xxxxxx
Securities Inc., 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Syndicate Desk; notices to the Company shall be directed to it at 000 X. Xxxxxxx Xxxx, Xxxxx 000,
Xxxxxxxxx, Xxxxxxxxx 00000, attention of President, with a copy (which copy shall not constitute
notice) to Xxxxxxx X. Xxxxxxxx, Esq., Bracewell & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxx 00000-0000; and notices to the Selling Stockholders shall be directed to R. Xxxxxx
Xxxx, Xx., Xxxxxxxx Holdings, LP, 0000 Xxxxxxxxx Xxxx, Xxxxxxx, Xxxxx 00000, with a copy (which
copy shall not constitute notice) to Xxxxxxx X. Xxxxxxxx, Esq., Bracewell & Xxxxxxxx LLP, 000
Xxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000-0000.
SECTION 14. No Advisory or Fiduciary Relationship. Each of the Company and each
Selling Stockholder acknowledges and agrees that (a) the purchase and sale of the Securities
pursuant to this Agreement, including the determination of the public offering price of the
Securities and any related
27
discounts and commissions, is an arm’s-length commercial transaction between the Company and
the Selling Stockholder, on the one hand, and the several Underwriters, on the other hand, (b) in
connection with the offering contemplated hereby and the process leading to such transaction each
Underwriter is and has been acting solely as a principal and is not the agent or fiduciary of the
Company or any Selling Stockholder, or its respective partners, stockholders, creditors, employees
or any other party, (c) no Underwriter has assumed or will assume an advisory or fiduciary
responsibility in favor of the Company or any Selling Stockholder with respect to the offering
contemplated hereby or the process leading thereto (irrespective of whether such Underwriter has
advised or is currently advising the Company or any Selling Stockholder on other matters) and no
Underwriter has any obligation to the Company or any Selling Stockholder with respect to the
offering contemplated hereby except the obligations expressly set forth in this Agreement, (d) the
Underwriters and their respective affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of each of the Company and each Selling Stockholder, and
(e) the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect
to the offering contemplated hereby and the Company and each Selling Stockholder has consulted his
or its own respective legal, accounting, regulatory and tax advisors to the extent he or it deemed
appropriate.
SECTION 15. Parties. This Agreement shall each inure to the benefit of and be binding
upon the Underwriters, the Company and the Selling Stockholders and their respective successors.
Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriters, the Company and the Selling Stockholders
and their respective successors and the controlling persons and officers and directors referred to
in Sections 6 and 7 and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein contained. This Agreement
and all conditions and provisions hereof are intended to be for the sole and exclusive benefit of
the Underwriters, the Company and the Selling Stockholders and their respective successors, and
said controlling persons and officers and directors and their heirs and legal representatives, and
for the benefit of no other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 16. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 17. TIME. TIME SHALL BE OF THE ESSENCE OF THIS AGREEMENT. EXCEPT AS OTHERWISE
SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.
SECTION 18. 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.
SECTION 19. Effect of Headings. The Section headings herein are for convenience only
and shall not affect the construction hereof.
[Signature page follows.]
28
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to the Company and the Selling Stockholders a counterpart hereof, whereupon this instrument,
along with all counterparts, will become a binding agreement among the Underwriters, the Company
and the Selling Stockholders in accordance with its terms.
Very truly yours, | ||||||
SUPERIOR OFFSHORE INTERNATIONAL, INC. | ||||||
By: | /s/ Xxxxx X. Xxxxxxxx, Xx. | |||||
Name: Xxxxx X. Xxxxxxxx, Xx. | ||||||
Title: Chairman | ||||||
XXXXXXXX HOLDINGS, LP | ||||||
By: Xxxxxxxx Holdings GP, LLC, its General Partner | ||||||
By: | /s/ R. Xxxxxx Xxxx, Xx. | |||||
R. Xxxxxx Xxxx, Xx. | ||||||
Manager | ||||||
XXXXX X. XXXXXXXX, XX. | ||||||
/s/ Xxxxx X. Xxxxxxxx, Xx. | ||||||
Xxxxx X. Xxxxxxxx, Xx. |
Signature Page to Purchase Agreement
CONFIRMED AND ACCEPTED,
as of the date first above written:
as of the date first above written:
XXXXXXX XXXXX & CO.
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
X.X. XXXXXX SECURITIES INC.
XXXXXX XXXX INCORPORATED
XXXXXXX RICE & COMPANY L.L.C.
XXXXXXX & COMPANY INTERNATIONAL
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
X.X. XXXXXX SECURITIES INC.
XXXXXX XXXX INCORPORATED
XXXXXXX RICE & COMPANY L.L.C.
XXXXXXX & COMPANY INTERNATIONAL
By: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
INCORPORATED
By:
|
/s/ Xxxxxx X. Xxxxx | |||
Authorized Signatory |
By: X.X. XXXXXX SECURITIES INC.
By:
|
/s/ Lackland Bloom | |||
Authorized Signatory |
For themselves and as Representatives of the other Underwriters named in Schedule A hereto.
SCHEDULE A
Number of | ||||
Name of Underwriter | Initial Securities | |||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated |
4,066,668 | |||
X.X. Xxxxxx Securities Inc. |
4,066,668 | |||
Xxxxxx Xxxx Incorporated |
677,777 | |||
Xxxxxxx Rice
& Company L.L.C. |
677,777 | |||
Xxxxxxx & Company International |
677,777 | |||
Total |
10,166,667 | |||
Schedule A
SCHEDULE B
Maximum Number | ||||||||
Number of Initial | of Option | |||||||
Securities to be | Securities to Be | |||||||
Sold | Sold | |||||||
Superior Offshore International, Inc. |
8,666,667 | |||||||
Xxxxx X. Xxxxxxxx, Xx. |
200,000 | 1,525,000 | ||||||
Xxxxxxxx Holdings, L.P. |
1,300,000 | |||||||
Total |
10,166,667 | 1,525,000 |
Schedule B
SCHEDULE C
Superior Offshore International, Inc.
10,166,667 Shares of Common Stock
(Par Value $0.01 Per Share)
10,166,667 Shares of Common Stock
(Par Value $0.01 Per Share)
1. | The initial public offering price per share for the Securities, determined as provided in said Section 2, shall be $15.00. | |
2. | The purchase price per share for the Securities to be paid by the several Underwriters shall be $13.95, being an amount equal to the initial public offering price set forth above less $1.05 per share; provided that the purchase price per share for any Option Securities purchased upon the exercise of the overallotment option described in Section 2(b) shall be reduced by an amount per share equal to any dividends or distributions declared by the Company and payable on the Initial Securities but not payable on the Option Securities. |
Schedule C
SCHEDULE D
List of persons and entities
subject to lock-up
subject to lock-up
Xxxxx X. Xxxxxxxx, Xx.
Xxxxxxxx Holdings, LP
Xxxxx X. Xxxxxx
Xxxxxxx Xxxxxx
Xxxxx X. Xxxxx
Xxxx X. Xxxxxxxx
R. Xxxxxx Xxxx, Xx.
Xxxx Xxxxxx
Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxx
Xxxx X. Xxxxx
E. Xxxxxx Xxxxx
Xxxxxxxx Holdings, LP
Xxxxx X. Xxxxxx
Xxxxxxx Xxxxxx
Xxxxx X. Xxxxx
Xxxx X. Xxxxxxxx
R. Xxxxxx Xxxx, Xx.
Xxxx Xxxxxx
Xxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxx
Xxxx X. Xxxxx
E. Xxxxxx Xxxxx
Schedule D
SCHEDULE E
1. | Free Writing Prospectus filed with the Commission on April 20, 2007. |
Schedule E
SCHEDULE F
INITIAL PUBLIC OFFERING PRICE
The initial public offering price per share for the Securities shall be $15.00.
Schedule F
Exhibit A
April 19, 2007
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
X.X. Xxxxxx Securities Inc.
as Representatives of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated,
X.X. Xxxxxx Securities Inc.
as Representatives of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
x/x Xxxxxxx Xxxxx & Xx.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0 Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Proposed Public Offering by Superior Offshore International, Inc.
Dear Sirs:
The undersigned, a stockholder, officer or director of Superior Offshore International, Inc.,
a Delaware corporation (the “Company”), understands that Xxxxxxx Xxxxx & Co., Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated (“Xxxxxxx Xxxxx”) and X.X. Xxxxxx Securities Inc. (“X.X.
Xxxxxx” and together with Xxxxxxx Xxxxx, the “Representatives”) and each of the other underwriters
named in Schedule A to the Purchase Agreement propose to enter into a Purchase Agreement (the
“Purchase Agreement”) with the Company and the Selling Stockholder providing for the public
offering of shares (the “Securities”) of the Company’s common stock, par value $0.01 per share (the
“Common Stock”). In recognition of the benefit that such an offering will confer upon the
undersigned as a stockholder, officer or director of the Company, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned agrees
with each underwriter to be named in the Purchase Agreement that, during a period of 180 days from
the date of the Purchase Agreement, the undersigned will not, without the prior written consent of
the Representatives, directly or indirectly, (i) offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant any option, right or
warrant for the sale of, or otherwise dispose of or transfer any shares of the Company’s Common
Stock or any securities convertible into or exchangeable or exercisable for Common Stock, whether
now owned or hereafter acquired by the undersigned or with respect to which the undersigned has or
hereafter acquires the power of disposition, or file, or cause to be filed, any registration
statement under the Securities Act of 1933, as amended, with respect to any of the foregoing
(collectively, the “Lock-Up Securities”) or (ii) enter into any swap or any other agreement or any
transaction that transfers, in whole or in part, directly or indirectly, the economic consequence
of ownership of the Lock-Up Securities, whether any such swap or transaction is to be settled by
delivery of Common Stock or other securities, in cash or otherwise.
Notwithstanding the foregoing, if:
(1) during the last 17 days of the 180-day lock-up period, the Company issues an earnings
release or material news or a material event relating to the Company occurs; or
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(2) prior to the expiration of the 180-day lock-up period, the Company announces that it will
release earnings results during the 16-day period beginning on the last day of the 180-day lock-up
period,
the restrictions imposed by this lock-up agreement shall continue to apply until the expiration of
the 18-day period beginning on the issuance of the earnings release or the occurrence of the
material news or material event, as applicable, unless the Representatives waive, in writing, such
extension; provided, however, that in no event shall such restrictions extend past 214 days from
the date of the Purchase Agreement.
The undersigned hereby acknowledges and agrees that written notice of any extension of the
180-day lock-up period pursuant to the previous paragraph will be delivered by the Representatives
to the Company (in accordance with Section 12 of the Purchase Agreement) and that any such notice
properly delivered will be deemed to have been given to, and received by, the undersigned. The
undersigned further agrees that, prior to engaging in any transaction or taking any other action
that is subject to the terms of this lock-up agreement during the period from the date of this
lock-up agreement to and including the 34th day following the expiration of the initial
180-day lock-up period, it will give notice thereof to the Company and will not consummate such
transaction or take any such action unless it has received written confirmation from the Company
that the 180-day lock-up period (as may have been extended pursuant to the previous paragraph) has
expired.
The undersigned also agrees and consents to the entry of stop transfer instructions with the
Company’s transfer agent and registrar against the transfer of the Lock-Up Securities except in
compliance with the foregoing restrictions.
Very truly yours, | ||||||
Signature: | ||||||
Print Name: | ||||||
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