EXECUTION VERSION
2,500,000 Shares
ENERGY PARTNERS, LTD.
Common Stock
UNDERWRITING AGREEMENT
August 7, 2003
CREDIT SUISSE FIRST BOSTON LLC
Eleven Madison Avenue
New York, N.Y. 10010-3629
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 2,500,000
outstanding shares of Common Stock, par value $.01 per share ("Securities"), of
Energy Partners, Ltd., a Delaware Corporation (the "Company"). Such 2,500,000
shares of Securities are hereinafter referred to as the "Offered Securities".
The Company and the Selling Stockholders hereby agree with Credit Suisse First
Boston LLC (the "Underwriter") as follows:
2. Representations and Warranties of the Company and the Selling
Stockholders. (a) The Company represents and warrants to, and agrees with, the
Underwriter that:
(i) A registration statement (No. 333-106809) 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 August 7, 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 Underwriter 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 March 31, 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 March 31, 2003. The issued and outstanding
capital stock of the Company as of July 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 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
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owned by such person or to require the Company to include such securities
in the securities registered pursuant to a Registration Statement or in any
securities being registered pursuant to any other registration statement
filed by the Company under the Act 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 their respective subsidiaries, on the one hand, and
the directors, officers, shareholders, 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 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
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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 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;
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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 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
5
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 Underwriter 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 Underwriter
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) Each Selling Stockholder has duly executed and delivered the
Custody Agreement in the form heretofore furnished to the Underwriter, and
the Custodian is authorized to deliver the Offered Securities to be sold by
each Selling Stockholder hereunder.
(vi) Except as set forth in an annex to the Custody Agreement, 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.
(vii) 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 in stabilization or manipulation
of the price of any security of the Company to facilitate the sale or
resale of the Offered Securities.
(viii) 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 the Custody Agreement, or in connection with the offer, sale and
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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 the Underwriter, and the Underwriter
agrees to purchase from each Selling Stockholder, at a purchase price of $ 10.04
per share, the Offered Securities set forth opposite the name of such Selling
Stockholder in Schedule A hereto.
Certificates in negotiable form for the Offered Securities to be sold by
the Selling Stockholders hereunder have been placed in custody, for delivery
under this Agreement, under Custody Agreements made with the Custodian. Each
Selling Stockholder agrees that the shares represented by the certificates held
in custody for each Selling Stockholder under such Custody Agreements are
subject to the interests of the Underwriter hereunder, that the arrangements
made by each Selling Stockholder for such custody are to that extent
irrevocable, and that the obligations of each Selling Stockholder hereunder
shall not be terminated by operation of law, whether by the death of any
individual Selling Stockholder or the occurrence of any other event, or in the
case of a trust, by the death of any trustee or trustees or the termination of
such trust. If any individual Selling Stockholder or any such trustee or
trustees should die, or if any other such event should occur, or if any of such
trusts should terminate, before the delivery of the Offered Securities
hereunder, certificates for such Offered Securities shall be delivered by the
Custodian in accordance with the terms and conditions of this Agreement as if
such death or other event or termination had not occurred, regardless of whether
or not the Custodian shall have received notice of such death or other event or
termination.
The Custodian will deliver the Offered Securities to the Underwriter for
the account of the Underwriter, 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 Underwriter 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 August
13, 2003, or at such other time not later than seven full business days
thereafter as the Underwriter 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 Underwriter 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 Underwriter. It is understood that the Underwriter proposes
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 Underwriter 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 Underwriter promptly of any proposal
to amend or supplement the Registration Statement or the Prospectus and
will not effect such amendment or supplement without the Underwriter's
consent, which consent shall not be unreasonably withheld or delayed; and
the Company will also advise the Underwriter 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
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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 the 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, or if it is necessary at any
time to amend the Prospectus to comply with the Act, the Company will
promptly notify the Underwriter 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 Underwriter nor the
Underwriter's 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 Underwriter 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 the Underwriter or any dealer, the Prospectus and
all amendments and supplements to such documents, in each case in such
quantities as the Underwriter reasonably requests. The Prospectus shall be
so furnished on or prior to 3:00 P.M., New York time, on the business day
following the later of the execution and delivery of this Agreement or the
Effective Time of the Registration Statement. All other such documents
shall be so furnished as soon as available. The Company will pay the
expenses of reproduction and distributing to the Underwriter all such
documents.
(f) The Company will use its reasonable efforts, in cooperation with
the Underwriter, to arrange for the qualification of the Offered Securities
for sale under the laws of such jurisdictions as the Underwriter designates
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 the
Underwriter, 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 Underwriter that the Company will pay
all expenses incident to the performance of the obligations of the Company
and the Selling
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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 Underwriter designates and the reproduction by the
Underwriter, 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 transfer taxes on the sale by the Selling
Stockholders of the Offered Securities to the Underwriter and for expenses
incurred in distributing preliminary prospectuses and the Prospectus
(including any amendments and supplements thereto) to the Underwriter.
(i) The Selling Stockholders agree, for a period of 45 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 Underwriter. The obligations of the
Underwriter 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 Underwriter 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
9
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;
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 Underwriter, 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 the
Underwriter, 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 the Underwriter, 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 the Underwriter, the effect of any such attack, outbreak,
escalation, act, declaration, calamity or emergency makes it impractical
10
or inadvisable to proceed with completion of the public offering or the
sale of and payment for the Offered Securities.
(d) The Underwriter shall have received an opinion, dated the Closing
Date, of Xxxxxx Xxxxxx & Xxxxxxx LLP, outside counsel for the Company to
the effect that:
(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 jurisdiction of its organization.
(iii) The Underwriting Agreement has been duly authorized,
executed and delivered by the Company.
(iv) Based on oral confirmation from the SEC, the Registration
Statement has been declared effective under the Act; any 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 or any Rule 462(b) 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, supporting schedules, reserve or statistical information
included 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 Offered Securities and all other outstanding shares of
capital stock of the Company 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
11
obtained, or as may be required under the securities or blue sky laws
of the various states, 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 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
Underwriter, officers and other representatives of the Company, counsel for
the Company 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 contains an untrue statement of a material fact or
omitted or omits 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 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 Underwriter 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:
12
(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.
(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 not
rendering an 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.
13
(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 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
Underwriter, officers and other representatives of the Company,
counsel for the Company 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 contains an untrue statement of a
material fact or omitted or omits 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 Underwriter 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 we express no opinion), has been reviewed by us and is,
to our knowledge, correct in all material respects subject to the
qualifications and assumptions stated therein.
(g) The Underwriter shall have received the opinion dated the Closing
Date of Simpson, Thacher & Xxxxxxxx with respect to Selling Stockholders to
the effect that:
(i) Each of 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 2,067,397 Offered Securities (the "Delaware Shares") and
the 432,603 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
14
such Delaware Shares; and upon payment for and delivery of the
Delaware Shares and Offshore Shares in accordance with the
Underwriting Agreement, the Underwriter will acquire all of the rights
of each of the Delaware Evercore Entities and Evercore Offshore in the
Delaware 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 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
Underwriter;
(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 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 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 or court having jurisdiction over any Delaware Evercore
Entity or any of their properties;
(iv) The Power of Attorney Agreement and each of the Custody
Agreements have been duly authorized, executed and delivered by each
of the Delaware Evercore Entities party thereto and Evercore Partners
L.L.C.
(v) The Underwriting Agreement has been duly authorized, executed
and delivered by or on behalf of the Delaware Evercore Entities.
(h) The Underwriter 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 Partners Ltd. 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.
(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
15
performance of the Underwriting Agreement, the Power of Attorney
Agreement and the Custody 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:
(1) contravene or conflict with any law or regulation of the
Cayman Islands applicable to the Partnership; or
(2) 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 relevant laws (other than the laws of the
Cayman Islands), the Partnership Agreement.
(iv) Neither the execution, delivery or performance of the
Underwriting Agreement, the Power of Attorney Agreement and the
Custody 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, the Power of Attorney Agreement and the
Custody 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, the Power of Attorney Agreement and the
Custody 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, the Power
of Attorney Agreement and the Custody Agreement to govern their
respective interpretations would be upheld as a valid choice of law in
any action on the Underwriting Agreement, the Power of Attorney
Agreement and the Custody 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, the Power of Attorney Agreement and the
Custody Agreement, activities of the Partnership contemplated by the
Underwriting Agreement, the Power of Attorney Agreement and the
Custody 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, the Power of Attorney
Agreement and the Custody 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
16
(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.
(viii) It is not necessary or advisable under the laws of the
Cayman Islands that the Underwriting Agreement, the Power of Attorney
Agreement and the Custody 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 Agreement and the Custody Agreement.
(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 and the
Custody Agreement.
(i) The Underwriter shall have received from Xxxxx Xxxxx L.L.P.,
counsel for the Underwriter, 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 Underwriter 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 Underwriter 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 Underwriter 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 Underwriter 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.
17
(m) The Underwriter 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.
(n) On or prior to the date of this Agreement, the Underwriter 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.
(o) The Custodian will deliver to the Underwriter 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 Underwriter 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
Underwriter, 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 Underwriter reasonably may request.
The Selling Stockholders and the Company will furnish the Underwriter with
such conformed copies of such opinions, certificates, letters and documents as
the Underwriter reasonably requests. The Underwriter may in its sole discretion
waive compliance with any conditions to the obligations of the Underwriter
hereunder.
7. Indemnification and Contribution.(a) The Company will indemnify and
hold harmless the Underwriter, its partners, directors and officers and
each person, if any who controls the Underwriter within the meaning of
Section 15 of the Act, against any losses, claims, damages or liabilities,
joint or several, to which the 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 the 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 the
Underwriter specifically for use therein, it being understood and agreed
that the only such information furnished by the 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
18
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 the Underwriter under the Act in connection with such purchase
and any such loss, claim, damage or liability of the Underwriter results
from the fact 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 the Underwriter as required by Section 5(e) hereof.
(b) The Selling Stockholders, jointly and severally, will indemnify
and hold harmless the Underwriter and the Company, their respective
partners, directors and officers and each person who controls the
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 the 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 the Underwriter for any legal or
other expenses reasonably incurred by the 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 Underwriter 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) The Underwriter will 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 the Underwriter
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 the Underwriter consists
of the following information in the Prospectus furnished on behalf of the
Underwriter: the concession and reallowance figures appearing in the third
paragraph under the caption "Underwriting" and the information contained in
paragraphs 9, 10 and 11 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
19
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
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 Underwriter 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
Underwriter 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
Underwriter 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 Underwriter. 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 Underwriter 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), the Underwriter shall not 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 the 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.
(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 Underwriter
(as hereinafter defined) within the meaning of the Act; and the obligations
of the Underwriter under this Section shall be in addition to any liability
which the Underwriter 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. 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
Underwriter 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 the 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
Underwriter 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
Underwriter 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
Underwriter is not consummated for any reason other than the occurrence of
any event specified in clause (iii), (iv), (v), (vi) or (vii) of Section
6(c), the Company will reimburse the Underwriter for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred
by it in connection with the offering of the Offered Securities.
9. Notices. All communications hereunder will be in writing and, if
sent to the Underwriter, will be mailed, delivered or faxed and confirmed
to the Underwriter c/o Credit Suisse First Boston LLC, Eleven Madison
Avenue, New York, N.Y. 10010-3629, Facsimile No. (000) 000-0000, Attention:
Transactions Advisory Group. 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.: (212)
269-5420, 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, 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.
10. 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
controlling persons referred to in Section 7, and no other person will have
any right or obligation hereunder.
11. 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.
12. 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.
If the foregoing is in accordance with the Underwriter's 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 Underwriter 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/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Member
EVERCORE CAPITAL PARTNERS (NQ) L.P.
By: Evercore Partners L.L.C.,
its General Partner
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Member
EVERCORE CAPITAL OFFSHORE PARTNERS L.P.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
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/ Xxxxxxx X. Xxxxx
------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Member
22
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
CREDIT SUISSE FIRST BOSTON LLC
By: /s/ Xxx Xxxxxxxx
________________________________
Authorized Signatory
23
SCHEDULE A
Number of
Securities Purchase
Selling Stockholder to be Sold Price
Evercore Capital Partners L.P..................................... 1,637,375 $16,439,245.00
Evercore Capital Offshore Partners L.P............................ 432,603 $ 4,343,334.12
Evercore Capital Partners (NQ) L.P................................ 394,436 $ 3,960.137.44
Evercore Co-Investment Partnership L.P............................ 35,586 $ 357,283.44
Total........................................................... 2,500,000 $25,100,000.00
