NEWPARK RESOURCES, INC. Underwriting Agreement
Exhibit 1.1
NEWPARK RESOURCES, INC.
4.00% Convertible Senior Notes due 2017
September 28, 2010
X.X. Xxxxxx Securities LLC
As Representative of the
several Underwriters listed
in Schedule 1 hereto
c/o X.X. Xxxxxx Securities LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representative of the
several Underwriters listed
in Schedule 1 hereto
c/o X.X. Xxxxxx Securities LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Newpark Resources, Inc., a Delaware corporation (the “Company”), proposes to issue and sell to
the several Underwriters listed in Schedule 1 hereto (the “Underwriters”), for whom you are acting
as representative (the “Representative”), $150,000,000 principal amount of its 4.00% Convertible
Senior Notes due 2017 (the “Underwritten Securities”) and, at the option of the Underwriters, up to
an additional $22,500,000 principal amount of its 4.00% Convertible Senior Notes due 2017 (the
“Option Securities”) if and to the extent that the Underwriters shall have determined to exercise
the option to purchase such 4.00% Convertible Senior Notes due 2017 granted to the Underwriters in
Section 2 hereof. The Underwritten Securities and the Option Securities are herein referred to as
the “Securities”. The Securities will be convertible into shares (the “Underlying Securities”) of
common stock of the Company, par value $0.01 per share (the “Common Stock”). The Securities will
be issued pursuant to an indenture (the “Base Indenture”) to be dated as of October 4, 2010 between
the Company and Xxxxx Fargo Bank, National Association, as trustee (the “Trustee”), as amended and
supplemented by the first supplemental indenture (the “First Supplemental Indenture”) to be dated
as of October 4, 2010 between the Company and the Trustee (the Base Indenture, as so amended and
supplemented by the First Supplemental Indenture, the “Indenture”).
The Company hereby confirms its agreement with the several Underwriters concerning the
purchase and sale of the Securities, as follows:
1. Registration Statement. The Company has prepared and filed with the Securities and
Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended, and the rules
and regulations of the Commission thereunder (collectively, the “Securities Act”), a registration
statement (File No. 333-166776) including a prospectus, registering shares of Common Stock,
preferred stock, warrants, debt securities (including the Securities), guarantees of debt
securities and units. Such registration statement, as amended at the time it became effective,
including the information, if any, deemed pursuant to Rule 430A, 430B or 430C under the Securities
Act to be part of the registration statement at the time of its effectiveness (“Rule
430 Information”), is referred to herein as the “Registration Statement”; and as used herein,
the term “Preliminary Prospectus” means any preliminary prospectus supplement relating to the
Securities filed with the Commission pursuant to Rule 424(b) under the Securities Act that amends
or supplements the Base Prospectus (as hereinafter defined) and the prospectus included in the
Registration Statement at the time of its effectiveness that omits Rule 430 Information (the “Base
Prospectus”), and the term “Prospectus” means the prospectus supplement and the Base Prospectus in
the form first used (or made available upon request of purchasers pursuant to Rule 173 under the
Securities Act) in connection with confirmation of sales of the Securities. If the Company has
filed an abbreviated registration statement pursuant to Rule 462(b) under the Securities Act (the
“Rule 462 Registration Statement”), then any reference herein to the term “Registration Statement”
shall be deemed to include such Rule 462 Registration Statement. Any reference in this Agreement
to the Registration Statement, any Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form
S-3 under the Securities Act, as of the effective date of the Registration Statement or the date of
such Preliminary Prospectus or the Prospectus, as the case may be, and any reference to “amend”,
“amendment” or “supplement” with respect to the Registration Statement, any Preliminary Prospectus
or the Prospectus shall be deemed to refer to and include any documents filed after such date under
the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Exchange Act”) that are deemed to be incorporated by reference
therein. Capitalized terms used but not defined herein shall have the meanings given to such terms
in the Registration Statement and the Prospectus.
At or prior to the time when sales of the Securities were first made at 7:00 P.M., New York
City time, on September 28, 2010 (the “Time of Sale”), the Company had prepared the following
information (collectively, the “Time of Sale Information”): a Preliminary Prospectus dated
September 27, 2010, and each “free-writing prospectus” (as defined pursuant to Rule 405 under the
Securities Act) listed on Annex B hereto.
2. Purchase of the Securities by the Underwriters. (a) The Company agrees to issue
and sell the Underwritten Securities to the several Underwriters as provided in this Agreement, and
each Underwriter, on the basis of the representations, warranties and agreements set forth herein
and subject to the conditions set forth herein, agrees, severally and not jointly, to purchase from
the Company the respective principal amount of Underwritten Securities set forth opposite such
Underwriter’s name in Schedule 1 hereto at a price equal to 97.00% of the principal amount thereof
(the “Purchase Price”) plus accrued interest, if any, from October 4, 2010 to the Closing Date (as
defined below). The public offering price of the Securities is not in excess of the price
recommended by Xxxxxxx Xxxxx & Associates, Inc., acting as a “qualified independent underwriter”
within the meaning of NASD Rule 2720 of the Financial Industry Regulatory Authority, Inc.
(“FINRA”).
In addition, the Company agrees to issue and sell the Option Securities to the several
Underwriters as provided in this Agreement, and the Underwriters, on the basis of the
representations, warranties and agreements set forth herein and subject to the conditions set forth
herein, shall have the option to purchase, severally and not jointly, from the Company the Option
Securities at the Purchase Price plus accrued interest, if any, from the Closing Date to the date
of payment and delivery.
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If any Option Securities are to be purchased, the principal amount of Option Securities to be
purchased by each Underwriter shall be the principal amount of Option Securities which bears the
same ratio to the aggregate principal amount of Option Securities being purchased as the principal
amount of Underwritten Securities set forth opposite the name of such Underwriter in Schedule 1
hereto (or such principal amount increased as set forth in Section 10 hereof) bears to the
aggregate principal amount of Underwritten Securities being purchased from the Company by the
several Underwriters, subject, however, to such adjustments to eliminate Securities in
denominations other than $1,000 as the Representative in its sole discretion shall make.
The Underwriters may exercise the option to purchase the Option Securities at any time in
whole, or from time to time in part, on or before the thirtieth day following the date of this
Agreement, by written notice from the Representative to the Company. Such notice shall set forth
the aggregate principal amount of Option Securities as to which the option is being exercised and
the date and time when the Option Securities are to be delivered and paid for which may be the same
date and time as the Closing Date (as hereinafter defined) but shall not be earlier than the
Closing Date nor later than the tenth full business day (as hereinafter defined) after the date of
such notice (unless such time and date are postponed in accordance with the provisions of Section
10 hereof). Any such notice shall be given at least two business days prior to the date and time
of delivery specified therein.
(b) The Company understands that the Underwriters intend to make a public offering of the
Securities as soon after the effectiveness of this Agreement as in the judgment of the
Representative is advisable, and initially to offer the Securities on the terms set forth in the
Prospectus. The Company acknowledges and agrees that the Underwriters may offer and sell
Securities to or through any affiliate of an Underwriter and that any such affiliate may offer and
sell Securities purchased by it to or through any Underwriter.
(c) Payment for the Securities shall be made by wire transfer in immediately available funds
to the account specified by the Company to the Representative in the case of the Underwritten
Securities. Closing of the purchase and sale of the Underwritten Securities shall occur at the
offices of Xxxxx Xxxx & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 A.M.,
New York City time, on October 4, 2010, or at such other time or place on the same or such other
date, not later than the fifth business day thereafter, as the Representative and the Company may
agree upon in writing or, in the case of the Option Securities, on the date and at the time and
place specified by the Representative in the written notice of the Underwriters’ election to
purchase such Option Securities. The time and date of such payment for the Underwritten Securities
is referred to herein as the “Closing Date,” and the time and date for such payment for the Option
Securities, if other than the Closing Date, is herein referred to as the “Additional Closing Date”.
Payment for the Securities to be purchased on the Closing Date or the Additional Closing Date,
as the case may be, shall be made against delivery to the nominee of The Depository Trust Company
(“DTC”), for the respective accounts of the several Underwriters of the Securities to be purchased
on such date, of one or more global notes representing the Securities (collectively, the “Global
Note”), with any transfer taxes payable in connection with the sale of such Securities duly paid by
the Company. The Global Note will be made available for inspection by the Representative at the
office of X.X. Xxxxxx Securities LLC set forth above not later than
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1:00 P.M., New York City time, on the business day prior to the Closing Date or the Additional
Closing Date, as the case may be.
(d) The Company acknowledges and agrees that the Underwriters are acting solely in the
capacity of an arm’s length contractual counterparty to the Company with respect to the offering of
Securities contemplated hereby (including in connection with determining the terms of the offering)
and not as a financial advisor or a fiduciary to, or an agent of, the Company or any other person.
Additionally, neither the Representative nor any other Underwriter is advising the Company or any
other person as to any legal, tax, investment, accounting or regulatory matters in any
jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be
responsible for making its own independent investigation and appraisal of the transactions
contemplated hereby, and the Underwriters shall have no responsibility or liability to the Company
with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated
hereby or other matters relating to such transactions will be performed solely for the benefit of
the Underwriters and shall not be on behalf of the Company.
3. Representations and Warranties of the Company. The Company represents and warrants
to each Underwriter that:
(a) Preliminary Prospectus. No order preventing or suspending the use of any Preliminary
Prospectus has been issued by the Commission, and each Preliminary Prospectus included in the Time
of Sale Information, at the time of filing thereof, complied in all material respects with the
Securities Act, and no Preliminary Prospectus, at the time of filing thereof, contained any untrue
statement of a material fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Company makes no representation and
warranty with respect to any statements or omissions made in reliance upon and in conformity with
information relating to any Underwriter furnished to the Company in writing by such Underwriter
through the Representative expressly for use in any Preliminary Prospectus, it being understood and
agreed that the only such information furnished by any Underwriter consists of the information
described as such in Section 7(b) hereof.
(b) Time of Sale Information. The Time of Sale Information, at the Time of Sale, did not, and
as of the Closing Date and as of the Additional Closing Date, as the case may be, will not, contain
any untrue statement of a material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided that the Company makes no
representation and warranty with respect to any statements or omissions made in reliance upon and
in conformity with information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representative expressly for use in such Time of Sale Information, it
being understood and agreed that the only such information furnished by any Underwriter consists of
the information described as such in Section 7(b) hereof. No statement of material fact included
in the Prospectus has been omitted from the Time of Sale Information and no statement of material
fact included in the Time of Sale Information that is required to be included in the Prospectus has
been omitted therefrom.
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(c) Issuer Free Writing Prospectus. Other than the Registration Statement, the Preliminary
Prospectus and the Prospectus, the Company (including its agents and representatives, other than
the Underwriters in their capacity as such) has not made, used, prepared, authorized, approved or
referred to, and will not prepare, make, use, authorize, approve or refer to, any “written
communication” (as defined in Rule 405 under the Securities Act) that constitutes an offer to sell
or solicitation of an offer to buy the Securities (each such communication by the Company or its
agents and representatives (other than a communication referred to in clause (i) below) an “Issuer
Free Writing Prospectus”) other than (i) any document not constituting a prospectus pursuant to
Section 2(a)(10)(a) of the Securities Act or Rule 134 under the Securities Act or (ii) the
documents listed on Annex B hereto, each electronic road show and any other written communications
approved in writing in advance by the Representative. Each such Issuer Free Writing Prospectus
complied in all material respects with the Securities Act, has been or will be (within the time
period specified in Rule 433) filed in accordance with the Securities Act (to the extent required
thereby) and, when taken together with the Preliminary Prospectus accompanying, or delivered prior
to delivery of, or filed prior to the first use of such Issuer Free Writing Prospectus, did not,
and as of the Closing Date and as of the Additional Closing Date, as the case may be, will not,
contain any untrue statement of a material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances under which they were made, not
misleading; provided that the Company makes no representation and warranty with respect to
any statements or omissions made in each such Issuer Free Writing Prospectus in reliance upon and
in conformity with information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representative expressly for use in such Issuer Free Writing
Prospectus, it being understood and agreed that the only such information furnished by any
Underwriter consists of the information described as such in Section 7(b) hereof.
(d) Registration Statement and Prospectus. The Registration Statement has been declared
effective by the Commission. No order suspending the effectiveness of the Registration Statement
has been issued by the Commission, and no proceeding for that purpose or pursuant to Section 8A of
the Securities Act against the Company or related to the offering of the Securities has been
initiated or, to the Company’s knowledge, threatened by the Commission; as of the applicable
effective date of the Registration Statement and any post-effective amendment thereto, the
Registration Statement complied and will comply in all material respects with the Securities Act
and the Trust Indenture Act of 1939, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Trust Indenture Act”), and did not and will not contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading; and as of the date of the
Prospectus and any amendment or supplement thereto and as of the Closing Date and as of the
Additional Closing Date, as the case may be, the Prospectus does not and will not contain any
untrue statement of a material fact or omit to state a material fact required to be stated therein
or necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided that the Company makes no representation and
warranty with respect to (i) that part of the Registration Statement that constitutes the Statement
of Eligibility and Qualification (Form T-1) of the Trustee under the Trust Indenture Act or (ii)
any statements or omissions made in reliance upon and in conformity with information relating to
any Underwriter furnished to the Company in writing by such Underwriter through the Representative
expressly for use in the Registration Statement and the
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Prospectus and any amendment or supplement thereto, it being understood and agreed that the
only such information furnished by any Underwriter consists of the information described as such in
Section 7(b) hereof.
(e) Incorporated Documents. The documents incorporated by reference in the Registration
Statement, the Prospectus or the Time of Sale Information, when they were filed with the
Commission, conformed in all material respects to the requirements of the Exchange Act, and, when
read together, none of such documents contained any 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 the light of the circumstances under which they were made, not misleading; and any further
documents so filed and incorporated by reference in the Registration Statement, the Prospectus or
the Time of Sale Information, when such documents are filed with the Commission, will conform in
all material respects to the requirements of the Exchange Act, and, when read together, will not
contain any untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(f) Financial Statements. The financial statements (including the related notes thereto) of
the Company and its consolidated subsidiaries included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the Prospectus comply in all material
respects with the applicable requirements of the Securities Act and the Exchange Act, as
applicable, and present fairly in all material respects the financial position of the Company and
its consolidated subsidiaries as of the dates indicated and the results of their operations and the
changes in their cash flows for the periods specified; such financial statements have been prepared
in conformity with U.S. generally accepted accounting principles (“GAAP”) applied on a consistent
basis throughout the periods covered thereby except as otherwise noted therein, and the supporting
schedules included or incorporated by reference in the Registration Statement present fairly in all
material respects the information required to be stated therein; and the other financial
information of the Company and its consolidated subsidiaries included or incorporated by reference
in the Registration Statement, the Time of Sale Information and the Prospectus has been derived
from the accounting records of the Company and its consolidated subsidiaries and presents fairly in
all material respects the information shown thereby.
(g) No Material Adverse Change. Since the date of the most recent financial statements of the
Company included or incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus, (i) there has not been any material change in the capital stock,
long-term debt, notes payable or current portion of long-term debt of the Company or any of its
subsidiaries, or any dividend or distribution of any kind declared, set aside for payment, paid or
made by the Company on any class of capital stock, or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the business,
properties, management, financial position, stockholders’ equity, results of operations or
prospects of the Company and its subsidiaries taken as a whole; (ii) neither the Company nor any of
its subsidiaries has entered into any transaction or agreement (other than those in the ordinary
course of business) that is material to the Company and its subsidiaries taken as a whole or
incurred any liability or obligation, direct or contingent, that is material to the Company and its
subsidiaries taken as a whole; and (iii) neither the Company nor any of its subsidiaries has
sustained any loss or interference with its business that is material to the Company and its
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subsidiaries taken as a whole and that is either from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor disturbance or dispute or any
action, order or decree of any court or arbitrator or governmental or regulatory authority, except
in each case as otherwise disclosed in the Registration Statement, the Time of Sale Information and
the Prospectus.
(h) Organization and Good Standing. The Company and each of its subsidiaries have been duly
organized and are validly existing and in good standing under the laws of their respective
jurisdictions of organization, are duly qualified to do business and are in good standing in each
jurisdiction in which their respective ownership or lease of property or the conduct of their
respective businesses requires such qualification, and have all power and authority necessary to
own or hold their respective properties and to conduct the businesses in which they are engaged,
except where the failure to be so qualified or in good standing or have such power or authority
could not reasonably be expected, individually or in the aggregate, to have a material adverse
effect on the business, properties, management, financial position, stockholders’ equity, results
of operations or prospects of the Company and its subsidiaries taken as a whole or on the
performance by the Company of its obligations under the Transaction Documents (as defined below) (a
“Material Adverse Effect”). The Company does not own or control, directly or indirectly, any
material corporation, association or other entity other than the subsidiaries listed in Exhibit
21.1 to the Company’s Annual Report on Form 10-K for the year ended December 31, 2009. The
subsidiaries listed in Schedule 2 to this Agreement are the only significant subsidiaries of the
Company.
(i) Capitalization. The Company has authorized capital stock as set forth in the Registration
Statement, the Time of Sale Information and the Prospectus under the heading “Capitalization”; all
the outstanding shares of capital stock of the Company have been duly and validly authorized and
issued and are fully paid and non-assessable and are not subject to any pre-emptive or similar
rights; except as described in or expressly contemplated by the Time of Sale Information and the
Prospectus, there are no outstanding rights (including, without limitation, pre-emptive rights),
warrants or options to acquire, or instruments convertible into or exchangeable for, any shares of
capital stock or other equity interest in the Company or any of its subsidiaries, or any contract,
commitment, agreement, understanding or arrangement of any kind relating to the issuance of any
capital stock of the Company or any such subsidiary, any such convertible or exchangeable
securities or any such rights, warrants or options (other than those issued or issuable under the
Company Stock Plans (as defined below) or otherwise described in the Registration Statement, the
Time of Sale Information and the Prospectus); the capital stock of the Company conforms in all
material respects to the description thereof contained in the Registration Statement, the Time of
Sale Information and the Prospectus; and all the outstanding shares of capital stock or other
equity interests of each subsidiary owned, directly or indirectly, by the Company have been duly
and validly authorized and issued, are fully paid and non-assessable and are owned directly or
indirectly by the Company, free and clear of any lien, charge, encumbrance, security interest,
restriction on voting or transfer or any other claim of any third party, except as described in the
Registration Statement, the Time of Sale Information and the Prospectus.
(j) Stock Options. With respect to the stock options (the “Stock Options”) granted since
January 1, 2007 pursuant to the stock-based compensation plans of the Company and its
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subsidiaries (the “Company Stock Plans”), (i) each grant of a Stock Option was duly authorized
no later than the date on which the grant of such Stock Option was by its terms to be effective
(the “Grant Date”) by all necessary corporate action, including, as applicable, approval by the
board of directors of the Company (or a duly constituted and authorized committee thereof) and any
required stockholder approval by the necessary number of votes or written consents, and the award
agreement governing such grant (if any) was duly executed and delivered by each party thereto, (ii)
each such grant was made in accordance with the terms of the Company Stock Plans, the Exchange Act
and all other applicable laws and regulatory rules or requirements, including the rules of the New
York Stock Exchange and any other exchange on which Company securities are traded, (iii) the per
share exercise price of each Stock Option was equal to the fair market value of a share of Common
Stock on the applicable Grant Date and (iv) each such grant was properly accounted for in
accordance with GAAP in the financial statements (including the related notes) of the Company and
disclosed in the Company’s filings with the Commission in accordance with the Exchange Act and all
other applicable laws. Since January 1, 2007, the Company has not knowingly granted, and there is
no and has been no policy or practice of the Company of granting, Stock Options prior to, or
otherwise coordinating the grant of Stock Options with, the release or other public announcement of
material information regarding the Company or its subsidiaries or their results of operations or
prospects.
(k) Due Authorization. The Company has full right, power and authority to execute and deliver
this Agreement, the Indenture and the Securities (collectively, the “Transaction Documents”) and to
perform its obligations hereunder and thereunder; and all action required to be taken for the due
and proper authorization, execution and delivery by it of each of the Transaction Documents and the
consummation by it of the transactions contemplated thereby or by the Time of Sale Information and
the Prospectus has been duly and validly taken.
(l) The Indenture. The Base Indenture has been duly qualified under the Trust Indenture Act.
The Indenture has been duly authorized by the Company and, when duly executed and delivered in
accordance with its terms by each of the parties thereto, will constitute a valid and legally
binding agreement of the Company enforceable against the Company in accordance with its terms,
except as enforceability may be limited by applicable bankruptcy, insolvency or similar laws
affecting creditors’ rights generally or by equitable principles relating to enforceability
(collectively, the “Enforceability Exceptions”).
(m) Underwriting Agreement. This Agreement has been duly authorized, executed and delivered
by the Company.
(n) The Securities. The Securities to be issued and sold by the Company hereunder have been
duly authorized by the Company and, when duly executed, authenticated, issued and delivered as
provided in the Indenture and paid for as provided herein, will be duly and validly issued and
outstanding and will constitute valid and legally binding obligations of the Company enforceable
against the Company in accordance with their terms, subject to the Enforceability Exceptions, and
will be entitled to the benefits of the Indenture.
(o) The Underlying Securities. Upon issuance and delivery of the Securities in accordance
with this Agreement and the Indenture, the Securities will be convertible at the option of the
holder thereof in accordance with the terms of the Indenture; the Underlying
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Securities to be issued upon conversion of the Securities have been duly authorized and
reserved and, when issued upon conversion of the Securities in accordance with the terms of the
Indenture, will be validly issued, fully paid and non assessable, and the issuance of the
Underlying Securities will not be subject to any preemptive or similar rights.
(p) Descriptions of the Transaction Documents. Each Transaction Document conforms in all
material respects to the description thereof contained in the Registration Statement, the Time of
Sale Information and the Prospectus.
(q) No Violation or Default. Neither the Company nor any of its subsidiaries is (i) in
violation of its charter or by-laws or similar organizational documents; (ii) in default, and, to
the knowledge of the Company, no event has occurred that, with notice or lapse of time or both,
would constitute such a default, in the due performance or observance of any term, covenant or
condition contained in any indenture, mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound or to which any of the property or assets of the Company or any of
its subsidiaries is subject; or (iii) in violation of any applicable law or statute or any
applicable judgment, order, rule or regulation of any court or arbitrator or governmental or
regulatory authority, except, in the case of clauses (ii) and (iii) above, for any such default or
violation that could not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect.
(r) No Conflicts. The execution, delivery and performance by the Company of each of the
Transaction Documents, the issuance and sale of the Securities (including the issuance of the
Underlying Securities upon conversion thereof) and the consummation of the transactions
contemplated by the Transaction Documents will not (i) conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any of its subsidiaries pursuant to, any indenture, mortgage, deed of trust, loan
agreement or other agreement or instrument to which the Company or any of its subsidiaries is a
party or by which the Company or any of its subsidiaries is bound or to which any of the property
or assets of the Company or any of its subsidiaries is subject, (ii) result in any violation of the
provisions of the charter or by-laws or similar organizational documents of the Company or any of
its subsidiaries or (iii) result in the violation of any applicable law or statute or any
applicable judgment, order, rule or regulation of any court or arbitrator or governmental or
regulatory authority, except, in the cause of clauses (i) and (iii) above, for any such conflict,
breach, violation, default, lien, charge or encumbrance that could not reasonably be expected,
individually or in the aggregate, to have a Material Adverse Effect.
(s) No Consents Required. No consent, approval, authorization, order, registration or
qualification of or with any court or arbitrator or governmental or regulatory authority is
required for the execution, delivery and performance by the Company of each of the Transaction
Documents, the issuance and sale of the Securities (including the issuance of the Underlying
Securities upon conversion thereof) and the consummation of the transactions contemplated by the
Transaction Documents, except for the registration of the Securities under the Securities Act, the
qualification of the Indenture under the Trust Indenture Act, the listing of the Underlying
Securities with the New York Stock Exchange and such consents, approvals, authorizations,
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orders and registrations or qualifications as may be required under applicable state
securities laws in connection with the purchase and distribution of the Securities by the
Underwriters.
(t) Legal Proceedings. Except as described in the Registration Statement, the Time of Sale
Information and the Prospectus, there are no legal, governmental or regulatory investigations,
actions, suits or proceedings pending to which the Company or any of its subsidiaries is or could
reasonably be expected to be made a party or to which any property of the Company or any of its
subsidiaries is or could reasonably be expected to be made the subject that, individually or in the
aggregate, if determined adversely to the Company or any of its subsidiaries, could reasonably be
expected to have a Material Adverse Effect; no such investigations, actions, suits or proceedings
are, to the knowledge of the Company, threatened or contemplated by any governmental or regulatory
authority; and (i) there are no current or pending legal, governmental or regulatory actions, suits
or proceedings that are required under the Securities Act to be described in the Registration
Statement or the Prospectus that are not so described in the Registration Statement, the Time of
Sale Information and the Prospectus and (ii) there are no statutes, regulations or contracts or
other documents that are required under the Securities Act to be filed as exhibits to the
Registration Statement or described in the Registration Statement, the Time of Sale Information or
the Prospectus that are not so filed as exhibits to the Registration Statement or described in the
Registration Statement, the Time of Sale Information and the Prospectus.
(u) Independent Accountants. Deloitte & Touche LLP and Ernst & Young LLP, who have certified
certain financial statements of the Company and its subsidiaries are each an independent registered
public accounting firm with respect to the Company and its subsidiaries within the applicable rules
and regulations adopted by the Commission and the Public Company Accounting Oversight Board (United
States) and as required by the Securities Act.
(v) Title to Real and Personal Property. The Company and its subsidiaries have good and
marketable title in fee simple (in the case of real property) to, or have valid rights to lease or
otherwise use, all items of real and personal property that are material to the respective
businesses of the Company and its subsidiaries, in each case free and clear of all liens,
encumbrances, claims and defects and imperfections of title except those that (i) do not materially
interfere with the use made and proposed to be made of such property by the Company and its
subsidiaries, (ii) could not reasonably be expected, individually or in the aggregate, to have a
Material Adverse Effect or (iii) are described in the Registration Statement, the Time of Sale
Information and the Prospectus.
(w) Title to Intellectual Property. The Company and its subsidiaries own or possess adequate
rights to use all material patents, patent applications, trademarks, service marks, trade names,
trademark registrations, service xxxx registrations, copyrights, licenses and know-how (including
trade secrets and other unpatented and/or unpatentable proprietary or confidential information,
systems or procedures) necessary for the conduct of their respective businesses as currently
conducted and as currently proposed to be conducted except as could not reasonably be expected to
have a Material Adverse Effect; and the conduct of their respective businesses will not conflict
with any such rights of others except as could not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect. Neither the Company nor its subsidiaries have
received any notice of any claim of infringement of or conflict with any such
10
rights of others in connection with its patents, patent rights, licenses, inventions,
trademarks, service marks, trade names, copyrights and know-how, which could reasonably be
expected, individually or in the aggregate, to result in a Material Adverse Effect.
(x) No Undisclosed Relationships. No relationship, direct or indirect, exists between or
among the Company or any of its subsidiaries, on the one hand, and the directors, officers,
stockholders, customers or suppliers of the Company or any of its subsidiaries, on the other, that
is required by the Securities Act to be described in the Registration Statement, the Time of Sale
Information and the Prospectus and that is not so described in such documents.
(y) Investment Company Act. The Company is not and, after giving effect to the offering and
sale of the Securities and the application of the proceeds thereof as described in the Registration
Statement, the Time of Sale Information and the Prospectus, will not be required to register as an
“investment company” or an entity “controlled” by an “investment company” within the meaning of the
Investment Company Act of 1940, as amended, and the rules and regulations of the Commission
thereunder (collectively, the “Investment Company Act”).
(z) Taxes. The Company and each of its subsidiaries have filed all federal, state, local and
foreign tax returns (taking into account applicable extensions) required to be filed through the
date of this Agreement or have requested extensions thereof (except where the failure to file could
not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect)
and have paid all taxes required to be paid thereon (except for cases in which the failure to file
or pay could not reasonably be expected to have a Material Adverse Effect, or, except as currently
being contested in good faith and for which reserves required by GAAP have been established and
maintained), and no tax deficiency has been determined adversely to the Company or any of its
subsidiaries which has had (nor does the Company nor any of its subsidiaries have any notice or
knowledge of any tax deficiency which could reasonably be expected to be determined adversely to
the Company or its subsidiaries and which could reasonably be expected to have) a Material Adverse
Effect.
(aa) Licenses and Permits. The Company and its subsidiaries possess all licenses,
certificates, permits and other authorizations issued by, and have made all declarations and
filings with, the appropriate federal, state, local or foreign governmental or regulatory
authorities that are necessary for the ownership or lease of their respective properties or the
conduct of their respective businesses as described in the Registration Statement, the Time of Sale
Information and the Prospectus, except where the failure to possess or make the same could not
reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; and
except as described in the Registration Statement, the Time of Sale Information and the Prospectus,
neither the Company nor any of its subsidiaries has received notice of any revocation or
modification of any such license, certificate, permit or authorization or has any reason to believe
that any such license, certificate, permit or authorization will not be renewed in the ordinary
course except where any such revocation, modification or non-renewal could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect.
(bb) No Labor Disputes. No labor disturbance by or dispute with employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company, is contemplated or threatened,
and the Company is not aware of any existing or imminent labor disturbance by, or
11
dispute with, the employees of any of its or its subsidiaries’ principal suppliers or
contractors, except as could not reasonably be expected to have a Material Adverse Effect.
(cc) Compliance With Environmental Laws. (i) The Company and its subsidiaries (x) are in
compliance with any and all applicable federal, state, local and foreign laws, rules, regulations,
requirements, decisions and orders relating to the protection of human health or safety, the
environment, natural resources, hazardous or toxic substances or wastes, pollutants or contaminants
(collectively, “Environmental Laws”), (y) have received and are in compliance with all permits,
licenses, certificates or other authorizations or approvals required of them under applicable
Environmental Laws to conduct their respective businesses, and (z) have not received notice of any
actual or potential liability under or relating to any Environmental Laws, including for the
investigation or remediation of any disposal or release of hazardous or toxic substances or wastes,
pollutants or contaminants, and have no knowledge of any event or condition that would reasonably
be expected to result in any such notice, and (ii) there are no costs or liabilities associated
with Environmental Laws of or relating to the Company or its subsidiaries, except in the case of
each of (i) and (ii) above, for any such failure to comply, or failure to receive required permits,
licenses or approvals, or cost or liability, as could not reasonably be expected, individually or
in the aggregate, to have a Material Adverse Effect; and (iii) except as described in each of the
Registration Statement, the Time of Sale Information and the Prospectus, (x) there are no
proceedings that are pending or, to the knowledge of the Company, contemplated, against the Company
or any of its subsidiaries under any Environmental Laws in which a governmental entity is also a
party, other than such proceedings regarding which it is reasonably believed no monetary sanctions
of $100,000 or more will be imposed, (y) the Company and its subsidiaries are not aware of any
issues regarding compliance with Environmental Laws, or liabilities or other obligations under
Environmental Laws or concerning hazardous or toxic substances or wastes, pollutants or
contaminants, that could reasonably be expected to have a Material Adverse Effect, and (z) none of
the Company and its subsidiaries anticipates material capital expenditures relating to any
Environmental Laws.
(dd) Hazardous Substances. There has been no storage, generation, transportation, handling,
treatment, disposal, discharge, emission, or other release of any kind of toxic wastes or hazardous
substances, including, but not limited to, any naturally occurring radioactive materials, brine,
drilling mud, crude oil, natural gas liquids and other petroleum materials, by, due to or caused by
the Company or any of its subsidiaries (or, to the Company’s knowledge, any other entity (including
any predecessor) for whose acts or omissions the Company or any of its subsidiaries is or could
reasonably be expected to be liable) upon any of the property now or previously owned or leased by
the Company or any of its subsidiaries, or upon any other property, in violation of any
Environmental Laws or in a manner or to a location that could reasonably be expected to give rise
to any liability under the Environmental Laws, except as disclosed in the Registration Statement,
the Time of Sale Information and the Prospectus or for any violation or liability which could not
reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect.
(ee) Compliance With ERISA. (i) Each employee benefit plan, within the meaning of Section
3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”), for which the
Company or any member of its “Controlled Group” (defined as any organization which is a member of
the Company’s controlled group of corporations within the meaning of
12
Section 414 of the Internal Revenue Code of 1986, as amended (the “Code”)) would have any
liability (each, a “Plan”) has been maintained in compliance with its terms and the requirements of
any applicable statutes, orders, rules and regulations, including but not limited to ERISA and the
Code, except for noncompliance that could not reasonably be expected to result in material
liability to the Company or its subsidiaries; (ii) no prohibited transaction, within the meaning of
Section 406 of ERISA or Section 4975 of the Code, has occurred with respect to any Plan excluding
transactions effected pursuant to a statutory or administrative exemption that could reasonably be
expected to result in a material liability to the Company or its subsidiaries; (iii) for each Plan
that is subject to the funding rules of Section 412 of the Code or Section 302 of ERISA, no
“accumulated funding deficiency” as defined in Section 412 of the Code, whether or not waived, has
occurred or is reasonably expected to occur; (iv) the fair market value of the assets of each Plan
that is subject to the funding rules of Section 412 of the Code and Section 302 of ERISA exceeds
the present value of all benefits accrued under such Plan (determined based on those assumptions
used to fund such Plan); (v) no “reportable event” (within the meaning of Section 4043(c) of ERISA)
has occurred or is reasonably expected to occur that either has resulted, or could reasonably be
expected to result, in material liability to the Company or its subsidiaries; and (vi) neither the
Company nor any member of the Controlled Group has incurred, nor reasonably expects to incur, any
liability under Title IV of ERISA (other than contributions to the Plan or premiums to the PBGC, in
the ordinary course and without default) in respect of a Plan (including a “multiemployer plan”,
within the meaning of Section 4001(a)(3) of ERISA).
(ff) Disclosure Controls. The Company and its subsidiaries maintain an effective system of
“disclosure controls and procedures” (as defined in Rule 13a-15(e) of the Exchange Act) that is
designed to ensure that information required to be disclosed by the Company in reports that it
files or submits under the Exchange Act is recorded, processed, summarized and reported within the
time periods specified in the Commission’s rules and forms, including controls and procedures
designed to ensure that such information is accumulated and communicated to the Company’s
management as appropriate to allow timely decisions regarding required disclosure. The Company and
its subsidiaries have carried out evaluations of the effectiveness of their disclosure controls and
procedures as required by Rule 13a-15 of the Exchange Act.
(gg) Accounting Controls. The Company and its subsidiaries maintain systems of “internal
control over financial reporting” (as defined in Rule 13a-15(f) of the Exchange Act) that comply
with the requirements of the Exchange Act and have been designed by, or under the supervision of,
their respective principal executive and principal financial officers, or persons performing
similar functions, to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with generally
accepted accounting principles, including, but not limited to internal accounting controls
sufficient to provide reasonable assurance that (i) transactions are executed in accordance with
management’s general or specific authorizations; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally accepted accounting
principles and to maintain asset accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences. Except as disclosed in the
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Registration Statement, the Time of Sale Information and the Prospectus, based on the
Company’s most recent evaluation of internal control over financial reporting, there are no
material weaknesses in the Company’s internal control over financial reporting. As and when
required by Section 302 of the Xxxxxxxx-Xxxxx Act, the Company’s auditors and the Audit Committee
of the Board of Directors of the Company have been advised of: (i) all significant deficiencies and
material weaknesses in the design or operation of internal controls over financial reporting which
are reasonably likely to adversely affect the Company’s ability to record, process, summarize and
report financial information; and (ii) any fraud, whether or not material, that involves management
or other employees who have a significant role in the Company’s internal control over financial
reporting.
(hh) Insurance. The Company and its subsidiaries have insurance covering their respective
properties, operations, personnel and businesses, including business interruption insurance, which
insurance is in amounts and insures against such losses and risks as are prudent in the businesses
in which they are engaged; and neither the Company nor any of its subsidiaries has (i) received
notice from any insurer or agent of such insurer that capital improvements or other expenditures
are required or necessary to be made in order to continue such insurance or (ii) any reason to
believe that it will not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage at a cost that could not reasonably be expected, individually
or in the aggregate, to have a Material Adverse Effect.
(ii) No Unlawful Payments. Neither the Company nor any of its subsidiaries nor, to the
knowledge of the Company, any director, officer, agent, employee or other person associated with or
acting on behalf of the Company or any of its subsidiaries has (i) used any corporate funds for any
unlawful contribution, gift, entertainment or other unlawful expense relating to political
activity; (ii) made any direct or indirect unlawful payment to any foreign or domestic government
official or employee from corporate funds; (iii) violated or is in violation of any provision of
the Foreign Corrupt Practices Act of 1977; or (iv) made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment.
(jj) Compliance with Money Laundering Laws. The operations of the Company and its
subsidiaries 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 jurisdictions applicable to them, the rules
and regulations thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency applicable to them (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 or any of its subsidiaries with respect
to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened.
(kk) Compliance with OFAC. None of the Company, any of its subsidiaries or, to the knowledge
of the Company, any director, officer, agent, employee or affiliate of the Company or any of its
subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign
Assets Control of the U.S. Department of the Treasury (“OFAC”); and the Company will not, directly
or indirectly, use the proceeds of the offering of the Securities hereunder, or lend, contribute or
otherwise make available such proceeds to any subsidiary, joint venture
14
partner or other person or entity, for the purpose of financing the activities of any person
currently subject to any U.S. sanctions administered by OFAC.
(ll) No Restrictions on Subsidiaries. No subsidiary of the Company is currently prohibited,
directly or indirectly, under any agreement or other instrument to which it is a party or is
subject, from paying any dividends to the Company, from making any other distribution on such
subsidiary’s capital stock, from repaying to the Company any loans or advances to such subsidiary
from the Company or from transferring any of such subsidiary’s properties or assets to the Company
or any other subsidiary of the Company, in each case in any manner that would materially impair the
Company and its subsidiaries’ ability to conduct their operations and pay their obligations as they
become due.
(mm) No Broker’s Fees. Neither the Company nor any of its subsidiaries is a party to any
contract, agreement or understanding with any person (other than this Agreement) that would give
rise to a valid claim against the Company or any of its subsidiaries or any Underwriter for a
brokerage commission, finder’s fee or like payment in connection with the offering and sale of the
Securities.
(nn) No Registration Rights. No person has the right to require the Company or any of its
subsidiaries to register any securities for sale under the Securities Act by reason of the filing
of the Registration Statement with the Commission or the issuance and sale of the Securities.
(oo) No Stabilization. The Company has not taken, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Securities.
(pp) Margin Rules. The application of the proceeds received by the Company from the issuance,
sale and delivery of the Securities as described in the Registration Statement, the Time of Sale
Information and the Prospectus will not violate Regulation T, U or X of the Board of Governors of
the Federal Reserve System or any other regulation of such Board of Governors.
(qq) Statistical and Market Data. Nothing has come to the attention of the Company that has
caused the Company to believe that the statistical and market-related data included in the
Registration Statement, the Time of Sale Information and the Prospectus is not based on or derived
from sources that are reliable and accurate in all material respects.
(rr) Xxxxxxxx-Xxxxx Act. The Company is in material compliance with the applicable provisions
of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated thereunder (the
“Xxxxxxxx-Xxxxx Act”), including Section 402 related to loans and Sections 302 and 906 related to
certifications.
(ss) Status under the Securities Act. At the time of filing the Registration Statement and
any post-effective amendments thereto, at the earliest time thereafter that the Company or any
offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the
Securities Act) of the Securities and as of the date hereof, the Company was not and is not an
“ineligible issuer,” as defined in Rule 405 under the Securities Act.
15
4. Further Agreements of the Company. The Company covenants and agrees with each
Underwriter that:
(a) Required Filings. The Company will file the final Prospectus with the Commission within
the time periods specified by Rule 424(b) and Rule 430A, 430B or 430C under the Securities Act,
will file any Issuer Free Writing Prospectus (including the term sheet substantially in the form of
Annex C hereto) to the extent required by Rule 433 under the Securities Act; and will timely file
all reports and any definitive proxy or information statements required to be filed by the Company
with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to
the date of the Prospectus and during the Prospectus Delivery Period (as defined below); and the
Company will furnish copies of the Prospectus and each Issuer Free Writing Prospectus (to the
extent not previously delivered) to the Underwriters in New York City prior to 10:00 A.M., New York
City time, on the business day next succeeding the date of this Agreement in such quantities as the
Representative may reasonably request.
(b) Delivery of Copies. The Company will deliver, without charge, (i) to the Representative,
two signed copies of the Registration Statement as originally filed and each amendment thereto, in
each case including all exhibits and consents filed therewith and documents incorporated by
reference therein; and (ii) to each Underwriter (A) a conformed copy of the Registration Statement
as originally filed and each amendment thereto (without exhibits) and (B) during the Prospectus
Delivery Period (as defined below), as many copies of the Prospectus (including all amendments and
supplements thereto and documents incorporated by reference therein) and each Issuer Free Writing
Prospectus as the Representative may reasonably request, provided that in the case of
clause (ii)(A), the Company will be deemed to have furnished such Registration Statement and
amendments thereto to the extent they are filed on the Commission’s XXXXX system (or successor
system). As used herein, the term “Prospectus Delivery Period” means such period of time after the
first date of the public offering of the Securities as in the opinion of counsel for the
Underwriters a prospectus relating to the Securities is required by law to be delivered (or
required to be delivered but for Rule 172 under the Securities Act) in connection with sales of the
Securities by any Underwriter or dealer.
(c) Amendments or Supplements, Issuer Free Writing Prospectuses. Until the expiration of the
Prospectus Delivery Period, before making, using, authorizing, approving, referring to or filing
any Issuer Free Writing Prospectus, and before filing any amendment or supplement to the
Registration Statement or the Prospectus, after the time that the Registration Statement becomes
effective, the Company will furnish to the Representative and counsel for the Underwriters a copy
of the proposed Issuer Free Writing Prospectus, amendment or supplement for review and will not
make, use, authorize, approve, refer to or file any such Issuer Free Writing Prospectus or file any
such proposed amendment or supplement to which the Representative reasonably objects.
(d) Notice to the Representative. The Company will advise the Representative promptly, and
confirm such advice in writing, (i) when any post-effective amendment to the Registration Statement
has been filed or becomes effective; (ii) when any supplement to the Prospectus or any Issuer Free
Writing Prospectus or any amendment to the Prospectus has been filed; (iii) of any request by the
Commission for any amendment to the Registration Statement or any amendment or supplement to the
Prospectus or the receipt of any comments from the
16
Commission relating to the Registration Statement or any other request by the Commission for
any additional information; (iv) of the issuance by the Commission of any order suspending the
effectiveness of the Registration Statement or preventing or suspending the use of any Preliminary
Prospectus, any of the Time of Sale Information or the Prospectus or the initiation or threatening
of any proceeding for that purpose or pursuant to Section 8A of the Securities Act; (v) of the
occurrence of any event within the Prospectus Delivery Period as a result of which the Prospectus,
the Time of Sale Information or any Issuer Free Writing Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus, the Time of Sale Information or any such Issuer Free
Writing Prospectus is delivered to a purchaser, not misleading; and (vi) of the receipt by the
Company of any notice with respect to any suspension of the qualification of the Securities for
offer and sale in any jurisdiction or the initiation or threatening of any proceeding for such
purpose; and the Company will use its best efforts to prevent the issuance of any such order
suspending the effectiveness of the Registration Statement, preventing or suspending the use of any
Preliminary Prospectus, any of the Time of Sale Information or the Prospectus or suspending any
such qualification of the Securities and, if any such order is issued, will obtain as soon as
possible the withdrawal thereof.
(e) Ongoing Compliance. (1) If during the Prospectus Delivery Period (i) any event shall
occur or condition shall exist as a result of which the Prospectus as then amended or supplemented
would include any untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, not misleading or (ii) it
is necessary to amend or supplement the Prospectus to comply with law, the Company will promptly
notify the Underwriters thereof and promptly prepare and, subject to paragraph (c) above, file with
the Commission and furnish to the Underwriters and to such dealers as the Representative may
designate, such amendments or supplements to the Prospectus as may be necessary so that the
statements in the Prospectus as so amended or supplemented will not, in the light of the
circumstances existing when the Prospectus is delivered to a purchaser, be misleading or so that
the Prospectus will comply with law and (2) if at any time prior to the Closing Date (i) any event
shall occur or condition shall exist as a result of which the Time of Sale Information as then
amended or supplemented would include any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the statements therein,
in the light of the circumstances existing when the Time of Sale Information is delivered to a
purchaser, not misleading or (ii) it is necessary to amend or supplement the Time of Sale
Information to comply with law, the Company will promptly notify the Underwriters thereof and
forthwith prepare and, subject to paragraph (c) above, file with the Commission (to the extent
required) and furnish to the Underwriters and to such dealers as the Representative may designate,
such amendments or supplements to the Time of Sale Information as may be necessary so that the
statements in the Time of Sale Information as so amended or supplemented will not, in the light of
the circumstances existing when the Time of Sale Information is delivered to a purchaser, be
misleading or so that the Time of Sale Information will comply with law.
(f) Blue Sky Compliance. The Company will use its reasonable best efforts, in cooperation
with the Underwriters, to qualify the Securities for offer and sale under the
17
applicable securities or Blue Sky laws of such jurisdictions as the Representative shall
reasonably request and will continue such qualifications in effect so long as required for
distribution of the Securities; provided that the Company shall not be required to (i)
qualify as a foreign corporation or other entity or as a dealer in securities in any such
jurisdiction where it would not otherwise be required to so qualify, (ii) file any general consent
to service of process in any such jurisdiction or (iii) subject itself to taxation in any such
jurisdiction if it is not otherwise so subject.
(g) Earning Statement. The Company will make generally available to its security holders and
the Representative as soon as practicable an earnings statement that satisfies the provisions of
Section 11(a) of the Securities Act and Rule 158 of the Commission promulgated thereunder covering
a period of at least twelve months beginning with the first fiscal quarter of the Company occurring
after the “effective date” (as defined in Rule 158) of the Registration Statement.
(h) Clear Market. For a period of 90 days after the date of the Prospectus, the Company will
not (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 to purchase, or otherwise
transfer or dispose of, directly or indirectly, or file with the Commission a registration
statement under the Securities Act relating to, any shares of Common Stock or any securities
convertible into or exercisable or exchangeable for Common Stock, or publicly disclose the
intention to make any offer, sale, pledge, disposition or filing, or (ii) enter into any swap or
other agreement that transfers, in whole or in part, any of the economic consequences of ownership
of the Common Stock or any such other securities, whether any such transaction described in clause
(i) or (ii) above is to be settled by delivery of Common Stock or such other securities, in cash or
otherwise, without the prior written consent of the Representative, other than (a) the Securities
or the Underlying Securities to be sold hereunder, (b) any shares of Common Stock of the Company
issued under the Company Stock Plans and employee stock-purchase plan, each as in effect as of the
date hereof and (c) any shares of Common Stock issued upon the exercise of warrants outstanding as
of the date hereof. Notwithstanding the foregoing, if (1) during the last 17 days of the 90-day
restricted period, the Company issues an earnings release or material news or a material event
relating to the Company occurs; or (2) prior to the expiration of the 90-day restricted period, the
Company announces that it will release earnings results during the 16-day period beginning on the
last day of the 90-day period, the restrictions imposed by this 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.
(i) Use of Proceeds. The Company will apply the net proceeds from the sale of the Securities
as described in the Registration Statement, the Time of Sale Information and the Prospectus under
the heading “Use of Proceeds”.
(j) No Stabilization. The Company will not take, directly or indirectly, any action designed
to or that could reasonably be expected to cause or result in any stabilization or manipulation of
the price of the Securities and will not take any action prohibited by Regulation M under the
Exchange Act in connection with the distribution of the Securities contemplated hereby.
18
(k) Underlying Securities. The Company will reserve and keep available at all times, free of
pre-emptive rights, shares of Common Stock for the purpose of enabling the Company to satisfy all
obligations at such time to issue the Underlying Securities upon conversion of the Securities in
accordance with the Indenture. The Company will use its best efforts to list, subject to notice of
issuance, the Underlying Securities on the New York Stock Exchange (the “Exchange”).
(l) Reports. For a period of one year following the Closing Date, the Company will furnish to
the Representative, as soon as they are available, copies of all reports or other communications
(financial or other) furnished to holders of the Securities, and copies of any reports and
financial statements furnished to or filed with the Commission or any national securities exchange
or automatic quotation system, provided that the Company will be deemed to have furnished
such information to the extent it is filed on the Commission’s XXXXX system (or successor system).
(m) Record Retention. The Company will, pursuant to reasonable procedures developed in good
faith, retain copies of each Issuer Free Writing Prospectus that is not filed with the Commission
in accordance with Rule 433 under the Securities Act.
5. Certain Agreements of the Underwriters. Each Underwriter hereby represents and
agrees that:
(a) It has not and will not use, authorize use of, refer to, or participate in the planning
for use of, any “free writing prospectus”, as defined in Rule 405 under the Securities Act (which
term includes use of any written information furnished to the Commission by the Company and not
incorporated by reference into the Registration Statement and any press release issued by the
Company) other than (i) a free writing prospectus that contains no “issuer information” (as defined
in Rule 433(h)(2) under the Securities Act) that was not included (including through incorporation
by reference) in the Preliminary Prospectus or a previously filed Issuer Free Writing Prospectus,
(ii) any Issuer Free Writing Prospectus listed on Annex B or prepared pursuant to Section 3(c) or
Section 4(c) above (including any electronic road show), or (iii) any free writing prospectus
prepared by such Underwriter and approved by the Company in advance in writing (each such free
writing prospectus referred to in clauses (i) or (iii), an “Underwriter Free Writing Prospectus”).
(b) It has not and will not, without the prior written consent of the Company, use any free
writing prospectus that contains the final terms of the Securities unless such terms have
previously been included in a free writing prospectus filed with the Commission; provided
that Underwriters may use a term sheet substantially in the form of Annex C hereto without the
consent of the Company; provided further that any Underwriter using such term sheet
shall notify the Company, and provide a copy of such term sheet to the Company, prior to, or
substantially concurrently with, the first use of such term sheet.
(c) It is not subject to any pending proceeding under Section 8A of the Securities Act with
respect to the offering (and will promptly notify the Company if any such proceeding against it is
initiated during the Prospectus Delivery Period).
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6. Conditions of Underwriters’ Obligations. The obligation of each Underwriter to
purchase the Underwritten Securities on the Closing Date or the Option Securities on the Additional
Closing Date, as the case may be, as provided herein is subject to the performance by the Company
of its covenants and other obligations hereunder and to the following additional conditions:
(a) Registration Compliance; No Stop Order. No order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceeding for such purpose or pursuant to
Section 8A under the Securities Act shall be pending before or, to the Company’s knowledge,
threatened by the Commission; the Prospectus and each Issuer Free Writing Prospectus shall have
been timely filed with the Commission under the Securities Act (in the case of an Issuer Free
Writing Prospectus, to the extent required by Rule 433 under the Securities Act) and in accordance
with Section 4(a) hereof; and all requests by the Commission for additional information shall have
been complied with to the reasonable satisfaction of the Representative.
(b) Representations and Warranties. The representations and warranties of the Company
contained herein shall be true and correct on the date hereof and on and as of the Closing Date or
the Additional Closing Date, as the case may be; and the statements of the Company and its officers
made in any certificates delivered pursuant to this Agreement shall be true and correct on and as
of the Closing Date or the Additional Closing Date, as the case may be.
(c) No Downgrade. Subsequent to the earlier of (A) the Time of Sale and (B) the execution and
delivery of this Agreement, (i) no downgrading shall have occurred in the rating accorded any
securities or preferred stock of or guaranteed by the Company or any of its subsidiaries by any
“nationally recognized statistical rating organization”, as such term is defined by the Commission
for purposes of Rule 436(g)(2) under the Securities Act and (ii) no such organization shall have
publicly announced that it has under surveillance or review, or has changed its outlook with
respect to, its rating of any securities or preferred stock of or guaranteed by the Company or any
of its subsidiaries (other than an announcement with positive implications of a possible
upgrading).
(d) No Material Adverse Change. No event or condition of a type described in Section 3(g)
hereof shall have occurred or shall exist, which event or condition is not described in the Time of
Sale Information (excluding any amendment or supplement thereto) and the Prospectus (excluding any
amendment or supplement thereto) and the effect of which in the judgment of the Representative
makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the
Securities on the Closing Date or the Additional Closing Date, as the case may be, on the terms and
in the manner contemplated by this Agreement, the Time of Sale Information and the Prospectus.
(e) Officer’s Certificate. The Representative shall have received on and as of the Closing
Date or the Additional Closing Date, as the case may be, a certificate of the chief financial
officer or chief accounting officer of the Company and one additional senior executive officer of
the Company who is reasonably satisfactory to the Representative (i) confirming that such officers
have carefully reviewed the Registration Statement, the Time of Sale Information and the Prospectus
and, to the knowledge of such officers, the representations set forth in
20
Sections 3(b) and 3(d) hereof are true and correct, (ii) confirming that the other
representations and warranties of the Company in this Agreement are true and correct and that the
Company has complied with all agreements and satisfied all conditions on its part to be performed
or satisfied hereunder at or prior to such Closing Date or the Additional Closing Date, as the case
may be, and (iii) to the effect set forth in paragraphs (a), (c) and (d) above.
(f) Comfort Letters. On the date of this Agreement and on the Closing Date or the Additional
Closing Date, as the case may be, Deloitte & Touche LLP and Ernst & Young LLP shall have furnished
to the Representative, at the request of the Company, letters, dated the respective dates of
delivery thereof and addressed to the Underwriters, in form and substance reasonably satisfactory
to the Representative, containing statements and information of the type customarily included in
accountants’ “comfort letters” to underwriters with respect to the financial statements and certain
financial information contained or incorporated by reference in the Registration Statement, the
Time of Sale Information and the Prospectus; provided that the letter delivered on the
Closing Date or the Additional Closing Date, as the case may be, shall use a “cut-off” date no more
than three business days prior to such Closing Date or such Additional Closing Date, as the case
may be.
(g) Opinion and 10b-5 Statement of Counsel for the Company. Xxxxxxx Xxxxx LLP, counsel for
the Company, shall have furnished to the Representative, at the request of the Company, their
written opinion and 10b-5 statement, and Xxxx Xxxxxx, Vice President, General Counsel and Chief
Administrative Officer of the Company, shall have furnished to the Representative his written
opinion, each dated the Closing Date or the Additional Closing Date, as the case may be, and
addressed to the Underwriters, in form and substance reasonably satisfactory to the Representative,
to the effect set forth in Annex A-1 and Annex A-2, respectively, hereto.
(h) Opinion and 10b-5 Statement of Counsel for the Underwriters. The Representative shall
have received on and as of the Closing Date or the Additional Closing Date, as the case may be, an
opinion and 10b-5 statement of Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Underwriters, with
respect to such matters as the Representative may reasonably request, and such counsel shall have
received such documents and information as they may reasonably request to enable them to pass upon
such matters.
(i) No Legal Impediment to Issuance. No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any federal, state or foreign
governmental or regulatory authority that would, as of the Closing Date or the Additional Closing
Date, as the case may be, prevent the issuance or sale of the Securities; and no injunction or
order of any federal, state or foreign court shall have been issued that would, as of the Closing
Date or the Additional Closing Date, as the case may be, prevent the issuance or sale of the
Securities.
(j) Good Standing. The Representative shall have received on and as of the Closing Date or
the Additional Closing Date, as the case may be, satisfactory evidence of the good standing of the
Company and its significant subsidiaries in their respective jurisdictions of organization and
their good standing, if applicable, as foreign entities in such other jurisdictions
21
as the Representative may reasonably request, in each case in writing or any standard form of
telecommunication from the appropriate governmental authorities of such jurisdictions.
(k) Exchange Listing. An application for the listing of the Underlying Securities shall have
been submitted to the Exchange.
(l) Lock-up Agreements. The “lock-up” agreements, each substantially in the form of Exhibit A
hereto, between you and certain officers and directors of the Company relating to sales and certain
other dispositions of shares of Common Stock or certain other securities, delivered to you on or
before the date hereof, shall be in full force and effect on the Closing Date or Additional Closing
Date, as the case may be.
(m) Additional Documents. On or prior to the Closing Date or the Additional Closing Date, as
the case may be, the Company shall have furnished to the Representative such further certificates
and documents as the Representative may reasonably request.
All opinions, letters, certificates and evidence mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance reasonably satisfactory to counsel for the Underwriters.
7. Indemnification and Contribution.
(a) Indemnification of the Underwriters. The Company agrees to indemnify and hold harmless
each Underwriter, its affiliates, directors and officers and each person, if any, who controls such
Underwriter within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act, from and against any and all losses, claims, damages and liabilities (including, without
limitation, reasonable legal fees and other expenses incurred in connection with any suit, action
or proceeding or any claim asserted, as such fees and expenses are incurred), joint or several,
that arise out of, or are based upon, (i) any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or caused by any omission or alleged omission
to state therein a material fact required to be stated therein or necessary in order to make the
statements therein not misleading, or (ii) any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or supplement thereto), any Issuer Free
Writing Prospectus, any “issuer information” filed or required to be filed pursuant to Rule 433(d)
under the Securities Act or any Time of Sale Information (including any Time of Sale Information
that has subsequently been amended), or caused by any omission or alleged omission to state therein
a material fact required to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading, in each case except
insofar as such losses, claims, damages or liabilities arise out of, or are based upon, any untrue
statement or omission or alleged untrue statement or omission made in reliance upon and in
conformity with any information relating to any Underwriter furnished to the Company in writing by
such Underwriter through the Representative expressly for use therein, it being understood and
agreed that the only such information furnished by any Underwriter consists of the information
described as such in subsection (b) below.
22
The Company also agrees to indemnify and hold harmless, Xxxxxxx Xxxxx & Associates, Inc., its
affiliates, directors and officers and each person, if any, who controls Xxxxxxx Xxxxx &
Associates, Inc. within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act, from and against any and all losses, claims, damages and liabilities incurred as a
result of Xxxxxxx Xxxxx & Associates, Inc.’s participation as a “qualified independent underwriter”
within the meaning of NASD Rule 2720 of FINRA in connection with the offering of the Securities.
(b) Indemnification of the Company. Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who signed the Registration
Statement and each person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act to the same extent as the indemnity set forth in
paragraph (a) above, but only with respect to any losses, claims, damages or liabilities
(including, without limitation, reasonable legal fees and other expenses incurred in connection
with any suit, action or proceeding or any claim asserted, as such fees and expenses are incurred)
that arise out of, or are based upon, any untrue statement or omission or alleged untrue statement
or omission made in reliance upon and in conformity with any information relating to such
Underwriter furnished to the Company in writing by such Underwriter through the Representative
expressly for use in the Registration Statement, the Prospectus (or any amendment or supplement
thereto), any Issuer Free Writing Prospectus or any Time of Sale Information, it being understood
and agreed upon that the only such information furnished by any Underwriter consists of the
following information in the Prospectus furnished on behalf of each Underwriter: the concession and
reallowance figures appearing in the fifth paragraph under the caption “Underwriting” and the
information contained in the thirteenth, fourteenth and fifteenth paragraphs under the caption
“Underwriting” concerning price stabilization and short positions.
(c) Notice and Procedures. If any suit, action, proceeding (including any governmental or
regulatory investigation), claim or demand shall be brought or asserted against any person in
respect of which indemnification may be sought pursuant to either paragraph (a) or (b) above, such
person (the “Indemnified Person”) shall promptly notify the person against whom such
indemnification may be sought (the “Indemnifying Person”) in writing; provided that the
failure to notify the Indemnifying Person shall not relieve it from any liability that it may have
under paragraph (a) or (b) 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 Person shall not relieve it from any
liability that it may have to an Indemnified Person otherwise than under paragraph (a) or (b)
above. If any such proceeding shall be brought or asserted against an Indemnified Person and it
shall have notified the Indemnifying Person thereof, the Indemnifying Person shall retain counsel
reasonably satisfactory to the Indemnified Person (who shall not, without the consent of the
Indemnified Person, be counsel to the Indemnifying Person) to represent the Indemnified Person in
such proceeding and shall pay the fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, any Indemnified Person shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified
Person unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to
the contrary; (ii) the Indemnifying Person has failed within a reasonable time to retain counsel
reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have
23
reasonably concluded that there may be legal defenses available to it that are different from
or in addition to those available to the Indemnifying Person; or (iv) the named parties in any such
proceeding (including any impleaded parties) include both the Indemnifying Person and the
Indemnified Person and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interest between them. It is understood and agreed that the
Indemnifying Person shall not, in connection with any proceeding or related proceeding in the same
jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to
any local counsel) for all Indemnified Persons, and that all such reasonable fees and expenses
shall be paid or reimbursed as they are incurred; provided, however that if indemnity may
be sought pursuant to the second paragraph of Section 7(a) above in respect of such proceeding,
then in addition to such separate firm for the Underwriters, their affiliates and such control
persons of the Underwriters, the indemnifying party shall be liable for the fees and expenses of
not more than one separate firm (in addition to any local counsel) for Xxxxxxx Xxxxx & Associates,
Inc., in its capacity as a “qualified independent underwriter”, its affiliates and all persons, if
any, who control Xxxxxxx Xxxxx & Associates, Inc. within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act. Any such separate firm for any Underwriter, its
affiliates, directors and officers and any control persons of such Underwriter shall be designated
in writing by X.X. Xxxxxx Securities LLC and any such separate firm for the Company, its directors,
its officers who signed the Registration Statement and any control persons of the Company shall be
designated in writing by the Company. The Indemnifying Person shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with such consent
or if there be a final judgment for the plaintiff, the Indemnifying Person agrees to indemnify each
Indemnified Person from and against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested
that an Indemnifying Person reimburse the Indemnified Person for reasonable fees and expenses of
counsel as contemplated by this paragraph, the Indemnifying Person shall be liable for any
settlement of any proceeding effected without its written consent if (i) such settlement is entered
into more than 30 days after receipt by the Indemnifying Person of such request and (ii) the
Indemnifying Person shall not have reimbursed the Indemnified Person in accordance with such
request prior to the date of such settlement. No Indemnifying Person shall, without the written
consent of the Indemnified Person, effect any settlement of any pending or threatened proceeding in
respect of which any Indemnified Person is or could have been a party and indemnification could
have been sought hereunder by such Indemnified Person, unless such settlement (x) includes an
unconditional release of such Indemnified Person, in form and substance reasonably satisfactory to
such Indemnified Person, from all liability on claims that are the subject matter of such
proceeding and (y) does not include any statement as to or any admission of fault, culpability or a
failure to act by or on behalf of any Indemnified Person.
(d) Contribution. If the indemnification provided for in paragraphs (a) and (b) above is
unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or
liabilities referred to therein, then each Indemnifying Person under such paragraph, in lieu of
indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by
such Indemnified Person as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the Company, on the one
hand, and the Underwriters, on the other, 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
24
such proportion as is appropriate to reflect not only the relative benefits referred to in
clause (i) but also the relative fault of the Company, on the one hand, and the Underwriters, on
the other, in connection with the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable considerations. The relative
benefits received by the Company, on the one hand, and the Underwriters, on the other, shall be
deemed to be in the same respective proportions as the net proceeds (before deducting expenses)
received by the Company from the sale of the Securities and the total underwriting discounts and
commissions received by the Underwriters in connection therewith, in each case as set forth in the
table on the cover of the Prospectus, bear to the aggregate offering price of the Securities. The
relative fault of the Company, on the one hand, and the Underwriters, on the other, 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 or by the Underwriters and the parties’ relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
(e) Limitation on Liability. The Company 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 that does not take account of the equitable considerations
referred to in paragraph (d) above. The amount paid or payable by an Indemnified Person as a
result of the losses, claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any reasonable legal or other
expenses incurred by such Indemnified Person in connection with any such action or claim.
Notwithstanding the provisions of this Section 7, in no event shall an Underwriter be required to
contribute any amount in excess of the amount by which the total underwriting discounts and
commissions received by such Underwriter with respect to the offering of the Securities exceeds the
amount of any damages that such Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations to contribute pursuant to this Section 7 are several in proportion to
their respective purchase obligations hereunder and not joint.
(f) Non-Exclusive Remedies. The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any Indemnified Person
at law or in equity.
8. Effectiveness of Agreement. This Agreement shall become effective upon the
execution and delivery hereof by the parties hereto.
9. Termination. This Agreement may be terminated in the absolute discretion of the
Representative, by notice to the Company, if after the execution and delivery of this Agreement and
prior to the Closing Date or, in the case of the Option Securities, prior to the Additional Closing
Date (i) trading generally shall have been suspended or materially limited on or by any of the New
York Stock Exchange or the Nasdaq Stock Market; (ii) trading of any securities issued or guaranteed
by the Company shall have been suspended on the New York Stock Exchange or the Nasdaq Stock Market;
(iii) a general moratorium on commercial banking
25
activities shall have been declared by federal or New York State authorities; or (iv) there
shall have occurred any outbreak or escalation of hostilities or any change in financial markets or
any calamity or crisis, either within or outside the United States, that, in the judgment of the
Representative, is material and adverse and makes it impracticable or inadvisable to proceed with
the offering, sale or delivery of the Securities on the Closing Date or the Additional Closing
Date, as the case may be, on the terms and in the manner contemplated by this Agreement, the Time
of Sale Information and the Prospectus.
10. Defaulting Underwriter. (a) If, on the Closing Date or the Additional Closing
Date, as the case may be, any Underwriter defaults on its obligation to purchase the Securities
that it has agreed to purchase hereunder on such date, the non-defaulting Underwriters may in their
discretion arrange for the purchase of such Securities by other persons satisfactory to the Company
on the terms contained in this Agreement. If, within 36 hours after any such default by any
Underwriter, the non-defaulting Underwriters do not arrange for the purchase of such Securities,
then the Company shall be entitled to a further period of 36 hours within which to procure other
persons satisfactory to the non-defaulting Underwriters to purchase such Securities on such terms.
If other persons become obligated or agree to purchase the Securities of a defaulting Underwriter,
either the non defaulting Underwriters or the Company may postpone the Closing Date or the
Additional Closing Date, as the case may be, for up to five full business days in order to effect
any changes that in the opinion of counsel for the Company or counsel for the Underwriters may be
necessary in the Registration Statement and the Prospectus or in any other document or arrangement,
and the Company agrees to promptly prepare any amendment or supplement to the Registration
Statement and the Prospectus that effects any such changes. As used in this Agreement, the term
“Underwriter” includes, for all purposes of this Agreement unless the context otherwise requires,
any person not listed in Schedule 1 hereto that, pursuant to this Section 10, purchases Securities
that a defaulting Underwriter agreed but failed to purchase.
(b) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate principal amount of Securities that remain
unpurchased on the Closing Date or the Additional Closing Date, as the case may be, does not exceed
one-eleventh of the aggregate principal amount of Securities to be purchased on such date, then the
Company shall have the right to require each non-defaulting Underwriter to purchase the principal
amount of Securities that such Underwriter agreed to purchase hereunder on such date plus such
Underwriter’s pro rata share (based on the principal amount of Securities that such Underwriter
agreed to purchase on such date) of the Securities of such defaulting Underwriter or Underwriters
for which such arrangements have not been made.
(c) If, after giving effect to any arrangements for the purchase of the Securities of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and the Company as
provided in paragraph (a) above, the aggregate principal amount of Securities that remain
unpurchased on the Closing Date or the Additional Closing Date, as the case may be, exceeds
one-eleventh of the aggregate principal amount of Securities to be purchased on such date, or if
the Company shall not exercise the right described in paragraph (b) above, then this Agreement or,
with respect to any Additional Closing Date, the obligation of the Underwriters to purchase
Securities on the Additional Closing Date, as the case may be, shall terminate without liability on
the part of the non-defaulting Underwriters. Any termination of this Agreement pursuant to this
26
Section 10 shall be without liability on the part of the Company, except that the Company will
continue to be liable for the payment of expenses as set forth in Section 11 hereof and except that
the provisions of Section 7 hereof shall not terminate and shall remain in effect.
(d) Nothing contained herein shall relieve a defaulting Underwriter of any liability it may
have to the Company or any non-defaulting Underwriter for damages caused by its default.
11. Payment of Expenses. (a) Whether or not the transactions contemplated by this
Agreement are consummated or this Agreement is terminated, the Company will pay or cause to be paid
all costs and expenses incident to the performance of its obligations hereunder, including without
limitation, (i) the costs incident to the authorization, issuance, sale, preparation and delivery
of the Securities and any taxes payable in that connection; (ii) the costs incident to the
preparation, printing and filing under the Securities Act of the Registration Statement, the
Preliminary Prospectus, any Issuer Free Writing Prospectus, any Time of Sale Information and the
Prospectus (including all exhibits, amendments and supplements thereto) and the distribution
thereof; (iii) the costs of reproducing and distributing each of the Transaction Documents; (iv)
the fees and expenses of the Company’s counsel and independent accountants; (v) the fees and
expenses incurred in connection with the registration or qualification and determination of
eligibility for investment of the Securities under the laws of such jurisdictions as the
Representative may designate and the preparation, printing and distribution of a Blue Sky
Memorandum (including the related fees and expenses of counsel for the Underwriters); (vi) any fees
charged by rating agencies for rating the Securities; (vii) the fees and expenses of the Trustee
and any paying agent (including related fees and expenses of any counsel to such parties); (viii)
all reasonable expenses and application fees incurred in connection with any filing with, and
clearance of the offering by, FINRA (including the reasonable expenses and application fees, if
any, of Xxxxxxx Xxxxx & Associates, Inc. acting as “qualified independent underwriter” within the
meaning of the aforementioned NASD Rule 2720 of FINRA) and the approval of the Securities for
book-entry transfer by DTC; (ix) all expenses incurred by the Company in connection with any “road
show” presentation to potential investors; and (x) all expenses and application fees related to the
listing of the Underlying Securities on the Exchange.
(b) If (i) this Agreement is terminated pursuant to Section 9, (ii) the Company for any reason
fails to tender the Securities for delivery to the Underwriters or (iii) the Underwriters decline
to purchase the Securities for any reason permitted under this Agreement (other than a termination
pursuant to Section 10), the Company agrees to reimburse the Underwriters for all out-of-pocket
costs and expenses (including the fees and expenses of their counsel) reasonably incurred by the
Underwriters in connection with this Agreement and the offering contemplated hereby.
12. Persons Entitled to Benefit of Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective successors and the officers
and directors and any controlling persons referred to in Section 7 hereof. Nothing in this
Agreement is intended or shall be construed to give any other person any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision contained herein. No
purchaser of Securities from any Underwriter shall be deemed to be a successor merely by reason of
such purchase.
27
13. Survival. The respective indemnities, rights of contribution, representations,
warranties and agreements of the Company and the Underwriters contained in this Agreement or made
by or on behalf of the Company or the Underwriters pursuant to this Agreement or any certificate
delivered pursuant hereto shall survive the delivery of and payment for the Securities and shall
remain in full force and effect, regardless of any termination of this Agreement or any
investigation made by or on behalf of the Company or the Underwriters.
14. Certain Defined Terms. For purposes of this Agreement, (a) except where otherwise
expressly provided, the term “affiliate” has the meaning set forth in Rule 405 under the Securities
Act; (b) the term “business day” means any day other than a day on which banks are permitted or
required to be closed in New York City; (c) the term “subsidiary” has the meaning set forth in Rule
405 under the Securities Act; and (d) the term “significant subsidiary” has the meaning set forth
in Rule 1-02 of Regulation S-X under the Exchange Act.
15. Miscellaneous.
(a) Authority of the Representative. Any action by the Underwriters hereunder may be taken by
X.X. Xxxxxx Securities LLC on behalf of the Underwriters, and any such action taken by X.X. Xxxxxx
Securities LLC shall be binding upon the Underwriters.
(b) Notices. All notices and other communications hereunder shall be in writing and shall be
deemed to have been duly given if mailed or transmitted and confirmed by any standard form of
telecommunication. Notices to the Underwriters shall be given to the Representative c/o X.X.
Xxxxxx Securities LLC, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (fax: (000) 000-0000);
Attention: Debt Syndicate Desk. Notices to the Company shall be given to it at Newpark Resources,
Inc., 0000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxx Xxxxxxxxx, Xxxxx 00000, (fax: (000) 000-0000);
Attention: Xxxx Xxxxxx.
(c) Governing Law. This Agreement and any claim, controversy or dispute arising under or
related to this Agreement shall be governed by and construed in accordance with the laws of the
State of New York.
(d) Counterparts. This Agreement may be signed in counterparts (which may include
counterparts delivered by any standard form of telecommunication), each of which shall be an
original and all of which together shall constitute one and the same instrument.
(e) Amendments or Waivers. No amendment or waiver of any provision of this Agreement, nor any
consent or approval to any departure therefrom, shall in any event be effective unless the same
shall be in writing and signed by the parties hereto.
(f) Headings. The headings herein are included for convenience of reference only and are not
intended to be part of, or to affect the meaning or interpretation of, this Agreement.
28
If the foregoing is in accordance with your understanding, please indicate your acceptance of
this Agreement by signing in the space provided below.
Very truly yours, NEWPARK RESOURCES, INC. |
||||
By: | /s/ Xxxxx X. Xxxxx | |||
Name: | Xxxxx X. Xxxxx | |||
Title: | Vice President and Chief Financial Officer | |||
Accepted: September 28, 2010 X.X. XXXXXX SECURITIES LLC For itself and on behalf of the several Underwriters listed in Schedule 1 hereto. |
||||
By: | /s/ illegible | |||
Name: | ||||
Title: | ||||
Schedule 1
Underwriter | Principal Amount | |||
X.X. Xxxxxx Securities LLC |
$ | 97,500,000 | ||
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated |
30,000,000 | |||
Xxxxx Fargo Securities, LLC |
15,000,000 | |||
Xxxxxxx Xxxxx & Associates, Inc. |
7,500,000 | |||
Total |
$ | 150,000,000 | ||
Schedule 2
Significant Subsidiaries
1. | NEWPARK MATS & INTEGRATED SERVICES LLC | |
2. | EXCALIBAR MINERALS LLC | |
3. | NEWPARK CANADA, INC. | |
4. | NEWPARK DRILLING FLUIDS LLC | |
5. | NEWPARK ENVIRONMENTAL SERVICES LLC | |
6. | AVA, S.P.A. | |
7. | AVA EASTERN EUROPE D.F.& S., S.R.L. | |
8. | AVA TUNISIE S.A.R.L. | |
9. | AVA ALGERIE E.U.R.L. | |
10. | NEWPARK DRILLING FLUIDS do BRASIL TRATAMENTO de FLUIDOS LTDA. |
Annex A-1
[Form of Opinion of Xxxxxxx Xxxxx LLP, Counsel for the Company]
1. The Issuer is validly existing as a corporation and in good standing under the laws of the
State of Delaware.
2. The Issuer has the corporate power and corporate authority under the laws of the State of
Delaware to (i) execute and deliver, and incur and perform all of its obligations under, the
Transaction Documents and (ii) carry on its business and own its properties as described in the
Registration Statement and the Prospectus.
3. Each of the Transaction Documents has been duly authorized, executed and delivered by the
Issuer.
4. None of (i) the execution and delivery of, or the incurrence or performance by the Issuer
of its obligations under, each of the Transaction Documents, each in accordance with its terms, or
(ii) the offering, issuance, sale and delivery of the Firm Securities pursuant to the Underwriting
Agreement, (A) constituted, constitutes or will constitute a violation of the Issuer Certificate of
Incorporation or the Issuer Bylaws, (B) constituted, constitutes or will constitute a breach or
violation of, or a default (or an event which, with notice or lapse of time or both, would
constitute such a default) under, any Applicable Agreement, (C) resulted, results or will result in
the creation of any security interest in, or lien upon, any of the property or assets of the Issuer
pursuant to any Applicable Agreement, (D) resulted, results or will result in any violation of (i)
applicable laws of the State of New York, (ii) applicable laws of the State of Texas, (iii)
applicable laws of the United States of America, (iv) the General Corporation Law of the State of
Delaware or (v) Regulation T, U or X of the Board of Governors of the Federal Reserve System, or
(E) resulted, results or will result in the contravention of any Applicable Order.
5. No Governmental Approval or Filing, which has not been obtained or made and is not in full
force and effect, is required to authorize, or is required for the execution and delivery by the
Issuer of, the Transaction Documents or the incurrence or performance of its obligations
thereunder, or the enforceability of any of such Transaction Documents against the Issuer. As used
in this paragraph, “Governmental Approval or Filing” means any consent, approval, license,
authorization or validation of, or filing, recording or registration with, any executive,
legislative, judicial, administrative or regulatory body of the State of New York, the State of
Texas, the State of Delaware or the United States of America pursuant to (i) applicable laws of the
State of New York, (ii) applicable laws of the State of Texas, (iii) applicable laws of the United
States of America or (iv) the General Corporation Law of the State of Delaware.
6. The statements under the captions “Description of Capital Stock”, “Description of Debt
Securities”, “Description of notes” and “Underwriting—No sales of similar securities” in the
Preliminary Prospectus, the Disclosure Package and the Prospectus, insofar as such statements
purport to summarize certain provisions of documents referred to therein and reviewed by us as
described above, fairly summarize such provisions in all material respects, subject to the
qualifications and assumptions stated therein.
7. The statements in the Preliminary Prospectus and the Prospectus under the caption “Certain
United States federal tax considerations,” insofar as they refer to statements of law or legal
conclusions, fairly summarize the matters referred to therein in all material respects, subject to
the qualifications and assumptions stated therein.
8. The Indenture constitutes a valid and binding obligation of the Issuer, enforceable against
the Issuer in accordance with its terms, under applicable laws of the State of New York.
9. When authenticated by the Trustee in the manner provided in the Indenture and delivered to
and paid for by the Underwriters in accordance with the Underwriting Agreement, the Firm Securities
will constitute valid and binding obligations of the Issuer, entitled to the benefits of the
Indenture and enforceable against the Issuer in accordance with their terms, under applicable laws
of the State of New York.
10. The holders of outstanding shares of capital stock of the Issuer are not entitled to any
preemptive rights under the Issuer Certificate of Incorporation or the Issuer Bylaws, the General
Corporation Law of the State of Delaware or any Applicable Agreement to subscribe for the
Securities or the shares of Common Stock issuable upon the conversion of any of the Securities; and
the shares of Common Stock into which the Firm Securities are convertible at the initial conversion
price provided in the Indenture have been duly authorized by the Issuer and reserved for issuance
upon such conversion and, upon issuance of such shares of Common Stock on conversion of the Firm
Securities in accordance with the terms of the Indenture and the terms of the Firm Securities at
conversion prices at or in excess of the par value of such shares of Common Stock, will be validly
issued, fully paid and nonassessable.
11. The Issuer is not and, immediately after giving effect to the issuance and sale of the
Securities occurring today and the application of proceeds therefrom as described in the Disclosure
Package and the Prospectus, will not be, an “investment company” within the meaning of said term as
used in the Investment Company Act of 1940, as amended.
In addition, we have participated in conferences with officers and other representatives of
the Issuer, the independent registered public accounting firm for the Issuer, your counsel and your
representatives at which the contents of the Registration Statement, the Disclosure Package and the
Prospectus (including the Incorporated Documents) and related matters were discussed and, although
we have not independently verified, are not passing upon, and do not assume any responsibility for,
the accuracy, completeness or fairness of the statements contained or incorporated by reference in
the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent
set forth in paragraphs 6 and 7 above), on the basis of the foregoing (relying with respect to
factual matters to the extent we deem appropriate upon statements by officers and other
representatives of the Issuer), we confirm to you that (a) in our opinion, each of the Registration
Statement, as of its effective date, the Disclosure Package, as of the Applicable Time, and the
Prospectus, as of its date, appeared on its face to be appropriately responsive in all material
respects to the requirements of the Securities Act and the Rules and Regulations (except that we
express no statement or belief as to Regulation S-T), (b) in our opinion, each of the Incorporated
Documents, when they were filed with the SEC, appeared on its face to be appropriately responsive
in all material respects with the requirements of the Exchange Act and the rules and regulations
thereunder, (c) we have not become aware of any
documents that are required to be filed as exhibits to the Registration Statement or any of the
Incorporated Documents and are not so filed or of any documents that are required to be summarized
in the Preliminary Prospectus or the Prospectus or any of the Incorporated Documents, and are not
so summarized and (d) furthermore, no facts have come to our attention that have led us to believe
that (i) the Registration Statement, at the time it became effective, contained an untrue statement
of a material fact or omitted to state any material fact required to be stated therein or necessary
to make the statements therein not misleading, (ii) the Disclosure Package (including the
Incorporated Documents), as of the Applicable Time, contained an untrue statement of a material
fact or omitted to state any material fact necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading, or (iii) the Prospectus (including
the Incorporated Documents), as of its date and as of the date hereof, contained or contains an
untrue statement of a material fact or omitted or omits to state any material fact necessary to
make the statements therein, in light of the circumstances under which they were made, not
misleading, it being understood that we express no opinion, statement or belief in this letter with
respect to (i) the financial statements and related schedules, including the notes and schedules
thereto and the auditor’s report thereon, (ii) any other financial or accounting data, included or
incorporated or deemed incorporated by reference in, or excluded from, the Registration Statement
or the Prospectus or the Disclosure Package, (iii) the Form T-1 included as an exhibit to the
Registration Statement and (iv) representations and warranties and other statements of fact
included in the exhibits to the Registration Statement or Incorporated Documents.
Furthermore, we advise you that (i) the Indenture has been qualified under the Trust Indenture
Act of 1939, as amended, and (ii) the Registration Statement was declared effective under the
Securities Act on May 19, 2010. In addition, we have been orally advised by the SEC that no stop
order suspending the effectiveness of the Registration Statement has been issued. To our
knowledge, based solely upon such oral communication with the SEC, no proceedings for that purpose
have been instituted or are pending or threatened by the SEC.
Annex A-2
[Form of Opinion of Xxxx Xxxxxx, Vice President,
General Counsel and Chief Administrative Officer of the Company]
General Counsel and Chief Administrative Officer of the Company]
Based upon the foregoing, and subject to the limitations, qualifications, exceptions and
assumptions set forth herein, I am of the opinion that, to my knowledge, there is no action, suit
or proceeding before or by any government, governmental instrumentality or court, domestic or
foreign, now pending or threatened against or affecting the Company or any of its subsidiaries, or
to which any of their respective properties are subject that would reasonably be expected to result
in a Material Adverse Effect, or which could reasonably be expected to materially and adversely
affect the consummation of the transactions contemplated in the Underwriting Agreement and the
Indenture or the performance by the Company of its obligations thereunder.
Annex B
a. Time of Sale Information
Pricing term sheet dated as of September 28, 2010, containing the terms of the Securities
filed pursuant to Rule 433 under the Securities Act.
Annex C
Pricing Term Sheet
Newpark Resources, Inc.
Offering of
$150,000,000 aggregate principal amount of
4.00% Convertible Senior Notes due 2017
(the “Convertible Senior Notes Offering”)
Offering of
$150,000,000 aggregate principal amount of
4.00% Convertible Senior Notes due 2017
(the “Convertible Senior Notes Offering”)
The information in this pricing term sheet relates only to the Convertible Senior Notes
Offering and should be read together with (i) the preliminary prospectus supplement dated September
27, 2010, including the documents incorporated by reference therein (the “Preliminary Prospectus
Supplement”), and (ii) the related base prospectus dated May 19, 2010 (forming part of Registration
Statement No. 333-166776), each filed pursuant to Rule 424(b) under the Securities Act of 1933, as
amended, and supersedes the information in the Preliminary Prospectus Supplement to the extent
inconsistent with the information in the Preliminary Prospectus Supplement. In all other respects,
this term sheet is qualified in its entirety by reference to the Preliminary Prospectus Supplement,
including all other documents incorporated by reference therein. Terms used herein but not defined
herein shall have the respective meanings as set forth in the Preliminary Prospectus Supplement.
All references to dollar amounts are references to U.S. dollars.
Issuer:
|
Newpark Resources, Inc., a Delaware corporation. | |
Title of Securities:
|
4.00% Convertible Senior Notes due 2017 (the “Notes”) | |
Aggregate Principal Amount Offered:
|
$150,000,000 aggregate principal amount of Notes (plus up to an additional $22,500,000 aggregate principal amount of Notes to cover over-allotments). | |
Ticker / Exchange for Common Stock:
|
NR / The New York Stock Exchange (“NYSE”). | |
Trade Date:
|
September 29, 2010. | |
Expected Settlement Date:
|
October 4, 2010. | |
Public Offering Price:
|
$1,000 per Note / $150 million total. | |
Maturity:
|
The Notes will mature on October 1, 2017, subject to earlier repurchase or conversion. | |
Interest Rate:
|
4.00% per year. | |
Interest Payment Dates and Record Dates:
|
Interest will accrue from October 4, 2010, and will be payable semiannually in arrears on April 1 and October 1 of each year, beginning on April 1, 2011, to the person in whose name a Note is registered at the close of business on March 15 or September 15, as the case may be, immediately preceding the relevant interest payment date. | |
NYSE Last Reported Sale Price on September
28, 2010:
|
$8.09 per share of the Issuer’s common stock. | |
Conversion Premium:
|
Approximately 36% above the NYSE Last Reported Sale Price on September 28, 2010. | |
Initial Conversion Price:
|
Approximately $11.00 per share of the Issuer’s common stock. | |
Initial Conversion Rate:
|
90.8893 shares of the Issuer’s common stock per $1,000 principal amount of Notes, subject to adjustment. | |
Repurchase at the Option of the Holder upon
a Fundamental Change:
|
Upon a “fundamental change”, except as described in the Preliminary Prospectus Supplement, the holders may require the Issuer to repurchase for cash all or a portion of their Notes at a repurchase price equal to 100% of the principal amount of the Notes to be repurchased, plus accrued and unpaid interest, including additional interest, if any, to, but excluding, the “fundamental change repurchase date”. | |
Use of Proceeds:
|
The Issuer estimates that the proceeds from this offering will be approximately $145.0 million (or $166.8 million if the underwriters exercise their option to purchase additional Notes in full), after deducting fees and estimated expenses. The Issuer intends to use approximately $104 million of the net proceeds from this offering to repay existing indebtedness outstanding under our revolving and term loan credit facility and the remaining net proceeds for general corporate purposes. | |
Underwriting Discounts and Commissions:
|
$30 per Note / $4.5 million total. | |
Proceeds, Before Expenses, to the Issuer:
|
$970 per Note / $145.5 million total. | |
Commissions and Discounts:
|
The underwriters have advised the Issuer that they propose initially to offer the Notes at a price of 100% of the principal amount of Notes, plus accrued interest from the original issue date of the Notes, if any, and to dealers at a price less a concession not in excess of 1.8% of the principal amount of the Notes, plus accrued interest from the original issue date of the Notes, if any. The following table shows the public offering price, underwriting discount and proceeds before expenses (which expenses, not including the underwriting discount, are estimated to be $500,000 and are payable by the Issuer) to the Issuer. The information assumes either no exercise or full exercise by the underwriters of their over-allotment option. |
Per Note | Without Option | With Option | ||||||||||
Public offering price |
$ | 1,000 | $ | 150,000,000 | $ | 172,500,000 | ||||||
Underwriting discount |
$ | 30 | $ | 4,500,000 | $ | 5,175,000 | ||||||
Proceeds, before expenses, to the Issuer |
$ | 970 | $ | 145,500,000 | $ | 167,325,000 |
Sole Book-Running Manager:
|
X.X. Xxxxxx | |
Senior Co-Manager:
|
BofA Xxxxxxx Xxxxx | |
Co-Managers:
|
Xxxxx Fargo Securities and Xxxxxxx Xxxxx | |
CUSIP Number:
|
651718 AC2 | |
ISIN Number:
|
US651718AC25 |
Adjustment to Shares Delivered Upon
Conversion Upon a Make-whole Fundamental
Change:
|
The following table sets forth the number of additional shares to be added to the conversion rate per $1,000 principal amount of Notes in connection with a “make-whole fundamental change” for each stock price and effective date set forth below: |
Stock Price | ||||||||||||||||||||||||||||||||||||||||||||
Effective date | $8.09 | $10.00 | $15.00 | $20.00 | $25.00 | $30.00 | $35.00 | $40.00 | $45.00 | $50.00 | $55.00 | |||||||||||||||||||||||||||||||||
October 4, 2010
|
32.7200 | 26.4140 | 13.7291 | 8.5036 | 5.7829 | 4.1558 | 3.0912 | 2.3503 | 1.8118 | 1.4077 | 1.0973 | |||||||||||||||||||||||||||||||||
October 1, 2011
|
32.7200 | 26.0436 | 13.0490 | 7.9024 | 5.3021 | 3.7788 | 2.7954 | 2.1169 | 1.6261 | 1.2589 | 0.9773 | |||||||||||||||||||||||||||||||||
October 1, 2012
|
32.7200 | 25.4131 | 12.1148 | 7.1152 | 4.6914 | 3.3114 | 2.4363 | 1.8385 | 1.4085 | 1.0874 | 0.8414 | |||||||||||||||||||||||||||||||||
October 1, 2013
|
32.7200 | 24.3718 | 10.8202 | 6.0799 | 3.9157 | 2.7329 | 2.0008 | 1.5065 | 1.1524 | 0.8881 | 0.6850 | |||||||||||||||||||||||||||||||||
October 1, 2014
|
32.7200 | 22.7770 | 9.0458 | 4.7406 | 2.9545 | 2.0391 | 1.4907 | 1.1247 | 0.8620 | 0.6645 | 0.5115 | |||||||||||||||||||||||||||||||||
October 1, 2015
|
32.7200 | 20.2491 | 6.5584 | 3.0258 | 1.8029 | 1.2415 | 0.9177 | 0.7006 | 0.5416 | 0.4190 | 0.3218 | |||||||||||||||||||||||||||||||||
October 1, 2016
|
32.7200 | 16.2968 | 3.0414 | 0.9782 | 0.5583 | 0.4019 | 0.3077 | 0.2396 | 0.1869 | 0.1448 | 0.1104 | |||||||||||||||||||||||||||||||||
October 1, 2017
|
32.7200 | 9.0734 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 | 0.0000 |
The exact stock prices and effective dates may not be set forth in the table above, in which
case:
• | If the stock price is between two stock prices in the table or the effective date is between two effective dates in the table, the number of additional shares will be determined by a straight-line interpolation between the number of additional shares set forth for the higher and lower stock prices and the earlier and later effective dates, as applicable, based on a 365-day year. | |
• | If the stock price is greater than $55.00 per share (subject to adjustment in the same manner as the stock prices set forth in the column headings of the table above), no additional shares will be added to the conversion rate. | |
• | If the stock price is less than $8.09 per share (subject to adjustment in the same manner as the stock prices set forth in the column headings of the table above), no additional shares will be added to the conversion rate. |
Notwithstanding the foregoing, in no event will the total number of shares issuable upon conversion
exceed 123.6093 per $1,000 principal amount of Notes, subject to adjustments in the same manner as
the conversion rate as set forth under “Description of notes—Conversion rights—Conversion rate
adjustments” in the Preliminary Prospectus Supplement.
The Issuer has filed a registration statement (including a prospectus and a related Preliminary
Prospectus Supplement) with the U.S. Securities and Exchange Commission (SEC) for the offering to
which this communication relates. Before you invest, you should read the Preliminary Prospectus
Supplement and the accompanying prospectus and the other documents the Issuer has filed with the
SEC for more complete information about the Issuer and the offering. You may get these documents
for free by visiting XXXXX on the SEC’s website at xxxx://xxx.xxx.xxx. Alternatively, copies of the
Preliminary Prospectus Supplement and accompanying prospectus may be obtained from X.X. Xxxxxx
Securities LLC, c/o Broadridge, Integrated Distribution Services, 0000 Xxxx Xxxxxx Xxxxxx,
Xxxxxxxx, XX 00000.
This communication does not purport to be a complete description of the Notes or the offering and
should be read in conjunction with the Preliminary Prospectus Supplement and the accompanying
prospectus.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS COMMUNICATION AND
SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY GENERATED AS A RESULT
OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM.
Exhibit A
FORM OF LOCK-UP AGREEMENT
, 2010
X.X. Xxxxxx Securities LLC
As Representative of the
several Underwriters listed in
Schedule 1 to the Underwriting
Agreement referred to below
several Underwriters listed in
Schedule 1 to the Underwriting
Agreement referred to below
c/o X.X. Xxxxxx Securities LLC
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Re: Newpark Resources, Inc. — Public Offering
Ladies and Gentlemen:
The undersigned understands that you, as Representative of the several Underwriters, propose
to enter into an Underwriting Agreement (the “Underwriting Agreement”) with Newpark Resources,
Inc., a Delaware corporation (the “Company”), providing for the public offering (the “Public
Offering”) by the several Underwriters named in Schedule 1 to the Underwriting Agreement (the
“Underwriters”), of $150,000,000 principal amount of Convertible Senior Notes due 2017 of the
Company (the “Securities”). Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Underwriting Agreement.
In consideration of the Underwriters’ agreement to purchase and make the Public Offering of
the Securities, and for other good and valuable consideration receipt of which is hereby
acknowledged, the undersigned hereby agrees that, without the prior written consent of X.X. Xxxxxx
Securities LLC on behalf of the Underwriters, the undersigned will not, during the period ending 90
days after the date of the final prospectus relating to the Public Offering (the “Prospectus”),
(1) 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 to purchase, or otherwise transfer
or dispose of, directly or indirectly, any shares of common stock, $0.01 per share par value, of
the Company (the “Common Stock”) or any securities convertible into or exercisable or exchangeable
for Common Stock (including without limitation, Common Stock or such other securities which may be
deemed to be beneficially owned by the undersigned in accordance with the rules and regulations of
the Securities and Exchange Commission and securities which may be issued upon exercise of a stock
option or warrant), or publicly disclose the intention to make any offer, sale, pledge or
disposition, (2) enter into any swap or other agreement that transfers, in whole or in part, any of
the economic consequences of ownership of the Common Stock or such other securities, whether any
such transaction described in clause (1)
or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or
otherwise or (3) during the period ending 90 days after the date of the Prospectus, make any demand
for or exercise any right with respect to, the registration of any shares of Common Stock or any
security convertible into or exercisable or exchangeable for Common Stock, in each case other than
(i) transfers of shares of Common Stock as a bona fide gift or gifts, (ii) entry into any written
trading plan or agreement with a broker designed to comply with Rule 10b5-1(c)(1) promulgated
pursuant to the Securities Exchange Act of 1934, as amended and the rules and regulations
thereunder, to sell shares after the 90-day restricted period, provided that no report regarding
such plan is required or voluntarily made by the undersigned or any party thereto or the Company in
any public announcement or filing with the Securities and Exchange Commission or otherwise, (iii)
the cashless exercise or net share settlement of options to acquire shares of Common Stock
outstanding on the date hereof and (iv) the transfer to the Company of shares of Common Stock for
purposes of satisfying any tax withholding obligation that arises in connection with the vesting of
restricted stock (so long as the purpose of such transfer is noted on any public report filed with
the Securities and Exchange Commission); provided that in the case of any transfer or
distribution pursuant to clause (i), (A) you receive a signed lockup agreement for the balance of
the lockup period from each donee, (B) such transfers are not required to be reported or announced
in any public report or filing with the Securities and Exchange Commission or otherwise during the
lock-up period and (C) neither donor nor donee otherwise voluntarily effects any public filing,
report or announcement regarding such transfers (other than a filing on a Form 5 made after the
expiration of the 90-day period referred to above). Notwithstanding the foregoing, if (1) during
the last 17 days of the 90-day restricted period, the Company issues an earnings release or
material news or a material event relating to the Company occurs; or (2) prior to the expiration of
the 90-day restricted period, the Company announces that it will release earnings results during
the 16-day period beginning on the last day of the 90-day period, the restrictions imposed by this
Letter 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.
In furtherance of the foregoing, the Company, and any duly appointed transfer agent for the
registration or transfer of the securities described herein, are hereby authorized to decline to
make any transfer of securities if such transfer would constitute a violation or breach of this
Letter Agreement.
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Letter Agreement. All authority herein conferred or agreed to be
conferred and any obligations of the undersigned shall be binding upon the successors, assigns,
heirs or personal representatives of the undersigned.
The undersigned understands that, if the Underwriting Agreement does not become effective, or
if the Underwriting Agreement (other than the provisions thereof which survive termination) shall
terminate or be terminated prior to payment for and delivery of the Securities to be sold
thereunder, the undersigned shall be released from all obligations under this Letter Agreement.
The undersigned understands that the Underwriters are entering into the Underwriting Agreement and
proceeding with the Public Offering in reliance upon this Letter Agreement.
This Letter Agreement, and any claim, controversy or dispute arising under or related to this
Letter Agreement, shall be governed by and construed in accordance with the laws of the State of
New York, without regard to the conflict of laws principles thereof.
Very truly yours, [NAME OF STOCKHOLDER] |
||||
By: | ||||
Name: | ||||
Title: | ||||