MCMORAN EXPLORATION CO. 2,250,000 Shares Underwriting Agreement November 1, 2007
MCMORAN
EXPLORATION CO.
6.75%
Mandatory Convertible Preferred Stock
2,250,000
Shares
November
1, 2007
Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
X.X.
Xxxxxx Securities Inc.
As
Representatives of the
several
Underwriters listed
in
Schedule 1 hereto
c/o
Merrill Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0
Xxxxx
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
X.X.
Xxxxxx Securities Inc.
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
McMoRan
Exploration Co., 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 representatives (the “Representatives”), an aggregate of 2,250,000
shares of 6.75% Mandatory Convertible Preferred Stock, par value $0.01 per
share, of the Company (the “Underwritten Shares”) and, at the option of the
Underwriters, up to an additional 337,500 shares of 6.75% Mandatory Convertible
Preferred Stock of the Company (the “Option Shares”). The
Underwritten Shares and the Option Shares are herein referred to as the
“Shares”.
The
Company hereby confirms its
agreement with the several Underwriters concerning the purchase and sale of
the
Shares, as follows:
2
registration
statement on Form S-3 (File No. 333-144496) including a prospectus, relating
to
the Shares and the shares (the “Underlying Shares”) of common stock, par value
$0.01 per share, of the Company (the “Common Stock”) into which the Shares are
convertible. Such registration statement, as amended at the time it
becomes 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 each prospectus included in such registration
statement (and any amendments thereto) before it becomes effective, any
prospectus filed with the Commission pursuant to Rule 424(a) under the
Securities Act and the prospectus included in the Registration Statement at
the
time of its effectiveness that omits Rule 430 Information, and the term
“Prospectus” means the 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 Shares. 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 Shares were first made (the “Time of Sale”), the Company had prepared the
following information (collectively, the “Time of Sale Information”): a
Preliminary Prospectus dated October 25, 2007, and each “free-writing
prospectus” (as defined pursuant to Rule 405 under the Securities Act) listed on
Annex B hereto.
In
addition, the Company agrees to issue and sell the Option Shares 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
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have
the
option to purchase, severally and not jointly, from the Company the Option
Shares at the Purchase Price.
If
any Option Shares are to be
purchased, the number of Option Shares to be purchased by each Underwriter
shall
be the number of Option Shares which bears the same ratio to the aggregate
number of Option Shares being purchased as the number of Underwritten Shares
set
forth opposite the name of such Underwriter in Schedule 1 hereto (or such number
increased as set forth in Section 10 hereof) bears to the aggregate number
of
Underwritten Shares being purchased from the Company by the several
Underwriters, subject, however, to such adjustments to eliminate any fractional
Shares as the Representatives in their sole discretion shall make.
The
Underwriters may exercise the
option to purchase the Option Shares 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 Representatives to the Company. Such notice
shall set forth the aggregate number of Option Shares as to which the option
is
being exercised and the date and time when the Option Shares 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 Shares as soon after the effectiveness of this Agreement as in the judgment
of the Representatives is advisable, and initially to offer the Shares on the
terms set forth in the Prospectus. The Company acknowledges and
agrees that the Underwriters may offer and sell Shares to or through any
affiliate of an Underwriter and that any such affiliate may offer and sell
Shares purchased by it to or through any Underwriter.
(c) Payment
for the Shares shall be made by wire transfer in immediately available funds
to
the account specified by the Company to the Representatives in the case of
the
Underwritten Shares, at the offices of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at 9:30 A.M. New York City time on November
7, 2007, or at such other time or place on the same or such other date, not
later than the fifth business day thereafter, as the Representatives and the
Company may agree upon in writing, or, in the case of the Option Shares, on
the
date and at the time and place specified by the Representatives in the written
notice of the Underwriters’ election to purchase such Option Shares. The time
and date of such payment for the Underwritten Shares is referred to herein
as
the “Closing Date” and the time and date for such payment for the Option Shares,
if other than the Closing Date, is herein referred to as the “Additional Closing
Date”.
Payment
for the Shares to be purchased
on the Closing Date or the Additional Closing Date, as the case may be, shall
be
made against delivery to the Representatives for the respective accounts of
the
several Underwriters of the Shares to be purchased on such date in definitive
form registered in such names and in such denominations as the Representatives
shall request in writing not later than two full business days prior to the
Closing Date or the Additional Closing
4
Date,
as
the case may be, with any transfer taxes payable in connection with the sale
of
such Shares duly paid by the Company. Delivery of the Shares shall be
made through the facilities of The Depository Trust Company unless the
Representative shall otherwise instruct. The certificates for the Shares will
be
made available for inspection and packaging by the Representatives at the office
of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP set forth above not later than 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 Shares 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 Representatives 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.
(e) The
Company hereby confirms its engagement of Xxxxxxxxx & Company, Inc. as, and
Xxxxxxxxx & Company, Inc. hereby confirms its agreement with the Company to
render services as, a “qualified independent underwriter” within the meaning of
Rule 2720(b)(15) of the National Association of Securities Dealers, Inc. with
respect to the offering and sale of the Securities. Xxxxxxxxx &
Company, Inc., in its capacity as qualified independent underwriter and not
otherwise, is referred to herein as the “QIU.”
5
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 Representatives 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.
(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 Shares (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
Representatives. Each such Issuer Free Writing Prospectus complied in
all material respects with the Securities Act, has been filed in accordance
with
the Securities Act (to the extent required thereby) and, when taken together
with the Preliminary Prospectus filed prior to the first use of such Issuer
Free
Writing Prospectus, did not, and at 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 Representatives 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. Each such Issuer Free Writing
Prospectus, as of its issue date and at all subsequent times through the
completion of the public offer and sale of the Shares or until any earlier
date
that the Company notified or notifies the Representative as described in Section
4(e), did not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the Registration
Statement or the Prospectus, including any document incorporated by reference
therein and any Preliminary Prospectus deemed to be a part thereof that has
not
been superseded or modified.
6
or
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 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 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
Representatives expressly for use in the Registration Statement and the
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.
7
in
the
Registration Statement, the Time of Sale Information and the Prospectus have
been prepared in accordance with the applicable requirements of the Securities
Act and the Exchange Act, as applicable, and the assumptions underlying such
proforma financial information are reasonable and are set forth in
the Registration Statement, the Time of Sale Information and the
Prospectus.
8
of
any
capital stock of the Company or any such subsidiary, any such convertible or
exchangeable securities or any such rights, warrants or options; 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.
(j) Stock
Options. With respect to the stock options (the “Stock Options”) granted
pursuant to the stock-based compensation plans of the Company and its
subsidiaries (the “Company Stock Plans”), (i) each Stock Option intended to
qualify as an “incentive stock option” under Section 422 of the Code so
qualifies, (ii) 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, (iii) 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, (iv)
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 (v) 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; provided, however, that the Company has granted Stock
Options pursuant to Company Stock Plans authorized by the Board of Directors
that were subsequently approved by shareholders with fair market value of a
share of Common Stock being the fair market value at the time the Board of
Directors authorized such grant. 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 coordinate 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.
(l) Underwriting
Agreement. This Agreement has been duly authorized, executed and delivered
by the Company.
9
the
Underlying Shares of the Company in accordance with their terms, and will
conform to the descriptions thereof in the Registration Statement, the Time
of
Sale Information and the Prospectus; the Underlying Shares initially issuable
upon conversion of such Shares have been duly authorized and reserved for
issuance upon such conversion and, when issued upon such conversion, will be
validly issued, fully paid and nonassessable and will confirm to the
descriptions thereof in the Time of Sale Information and the Prospectus; the
Shares, the Underlying Shares and all other shares of outstanding capital stock
of the Company are consistent with the information in the time of Sale
Information and conform to the description thereof contained in the Prospectus;
and the shareholders of the Company do not have any preemptive or similar rights
with respect to the Shares, the outstanding Underlying Shares or the Underlying
Shares issuable upon conversion of the Shares.
(n) Descriptions
of the Certificate of Designations. The
Certificate of Designations conforms in all material respects to the description
thereof contained in the Registration Statement, the Time of Sale Information
and the Prospectus.
10
11
(including
trade secrets and other unpatented and/or unpatentable proprietary or
confidential information, systems or procedures) necessary for the conduct
of
their respective businesses; and the conduct of their respective businesses
will
not conflict in any material respect with any such rights of others, and the
Company and its subsidiaries have not received any notice of any claim of
infringement or conflict with any such rights of others.
12
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 would not, individually or in the aggregate, have a Material
Adverse Effect; and (iii) except as described in each of the Time of Sale
Information and the Prospectus, (x) there are no proceedings that are pending,
or that are known to be 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 on the capital expenditures, earnings or competitive position of the
Company and its subsidiaries, and (z) none of the Company and its subsidiaries
anticipates material capital expenditures relating to any Environmental
Laws.
13
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.
14
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) 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
Shares.
15
(mm) Business
With Cuba. The Company has complied with all provisions of
Section 517.075, Florida Statutes (Chapter 92-198, Laws of Florida)
relating to doing business with the Government of Cuba or with any person or
affiliate located in Cuba.
(oo) Forward-Looking
Statements. No forward-looking statement (within the meaning of
Section 27A of the Securities Act and Section 21E of the Exchange Act) contained
in the Registration Statement, the Time of Sale Information and the Prospectus
has been made or reaffirmed without a reasonable basis or has been disclosed
other than in good faith.
(qq) Xxxxxxxx-Xxxxx
Act. There is and has been no failure on the part of the Company
or any of the Company’s directors or officers, in their capacities as such, to
comply with any provision of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and
regulations promulgated in connection therewith (the “Xxxxxxxx-Xxxxx Act”),
including Section 402 related to loans and Sections 302 and 906 related to
certifications.
(rr) 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 Shares
and at the date hereof, the Company was not and is not an “ineligible issuer,”
as defined under the Securities Act in connection with the offering of the
Shares. The Company has paid the registration fee for this offering pursuant
to
Rule 457 under the Securities Act.
(ss) Reserve
Report Data.Except as otherwise described in the letter of Xxxxx Xxxxx to
be delivered pursuant to Section 6(h) hereof, the oil and gas reserve estimates
of the Company and its subsidiaries contained in the Registration Statement,
the
Time of Sale Information and the Prospectus have been prepared by independent
reserve engineers in accordance with Commission guidelines applied on a
consistent basis throughout the periods involved. Other than
production of the reserves in the ordinary course of business and intervening
product price fluctuations or as described in the Registration Statement, the
Time of Sale Information and the Prospectus, the Company is not aware of any
facts or circumstances that, taken together, would have a Material Adverse
Effect on the reserves or the present value of future net cash flows therefrom
as described in the Registration Statement, Time of Sale Information or the
Prospectus.
16
(tt) Independent
Reserve Engineering Firm. Xxxxx Xxxxx Company L.P., Petroleum
Engineers (“Xxxxx Xxxxx”) are independent reserve engineers with respect to the
Company and its subsidiaries and for the periods set forth in the Time of Sale
Information and the Prospectus.
(c) Amendments
or Supplements, Issuer Free Writing Prospectuses. Before
preparing, 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 (whether before or after the time
that
the Registration Statement becomes effective), the Company will furnish to
the
Representatives and counsel for the Underwriters a copy of the proposed Issuer
Free Writing Prospectus, amendment or supplement for review and will not
prepare, use, authorize, approve, refer to or file any such Issuer Free Writing
Prospectus or file any such proposed amendment or supplement to which the
Representatives reasonably objects.
(d) Notice
to the Representatives. The Company will advise the
Representatives promptly, and confirm such advice in writing, (i) when the
Registration Statement has become effective; (ii) when any amendment to the
Registration Statement has been filed or becomes
17
effective;
(iii) when any supplement to the Prospectus or any Issuer Free Writing
Prospectus or any amendment to the Prospectus has been filed; (iv) 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 Commission relating to the Registration Statement or any other request
by
the Commission for any additional information; (v) 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; (vi) 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 (vii) of the receipt
by the Company of any notice with respect to any suspension of the qualification
of the Shares 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 Shares and, if any such
order is issued, will obtain as soon as possible the withdrawal
thereof.
18
(f) Blue
Sky Compliance. The Company will qualify the Shares for offer
and sale under the securities or Blue Sky laws of such jurisdictions as the
Representatives shall reasonably request and will continue such qualifications
in effect so long as required for distribution of the Shares; 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.
19
(k) Exchange
Listing. The Company will use its best efforts to list, subject
to notice of issuance, the Shares on the New York Stock Exchange (the
“Exchange”).
(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, 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 Shares 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).
20
21
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 and (iii) to the effect set forth in paragraphs (a), (c)
and
(d) above.
(f) Ernst
& Young Comfort Letters. On the date of this Agreement and
on the Closing Date or the Additional Closing Date, as the case may be, Ernst
& Young LLP shall have furnished to the Representatives, 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 Representatives, 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 Dates, as the case may be.
(g) PricewaterhouseCoopers
Comfort Letters. On the date of this Agreement and on the
Closing Date or the Additional Closing Date, as the case may be,
PricewaterhouseCoopers LLP shall have furnished to the Representatives,
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 Representatives, 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
related to the oil and gas properties acquired from Newfield Exploration Co.
that are 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 Dates, as the case may be.
(i) Opinion
of Counsel for the Company. Jones, Walker, Waechter, Poitevent,
Carrère & Xxxxxxx, L.L.P., counsel for the Company, shall have furnished to
the Representatives, at the request of the Company, their written opinion,
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 Representatives, to the effect set forth in Annex A hereto.
22
opinion
of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Underwriters, with
respect to such matters as the Representatives 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.
(n) Lock-up
Agreements. The “lock-up” agreements, each substantially in the
form of Exhibit A hereto, between you and each of the Co-Chairman of the Board
and each of the executive officers of the Company relating to sales and certain
other dispositions of Shares, shares of Common Stock and certain other
securities, delivered to you on or before the date hereof, shall be full force
and effect on the Closing Date or the Additional Closing Date, as the case
may
be.
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.
23
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 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 Representatives 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.
24
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 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 fees and expenses shall be paid or reimbursed as they are
incurred. 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 the Representatives 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 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.
25
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 Shares 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 Shares. 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.
(f) Indemnification
of the QIU. The Company agrees to indemnify and hold harmless
Xxxxxxxxx & Company, Inc. in its capacity as QIU, its affiliates, directors
and officers and each person, if any, who controls the QIU 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, 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 or any
Time
of Sale Information, or caused by any omission or alleged omission to state
therein a material fact necessary in order to make the statements therein,
in
light of the circumstances under which they were made, not
26
misleading,
or (iii) any act or omission to act or any alleged act or omission to act by
Xxxxxxxxx & Company, Inc. as QIU in connection with any transaction
contemplated by this Agreement or undertaken in preparing for the purchase,
sale
and delivery of the Securities, except as to this clause (iii) to the extent
that any such loss, claim, damage or liability results from the gross negligence
or bad faith of Xxxxxxxxx & Company, Inc. in performing the services as
QIU.
(g) Notice
and Procedures for Indemnification of the QIU. If any suit, action,
proceeding (including any governmental or regulatory investigation), claim
or
demand shall be brought or asserted against the QIU in respect of which
indemnification may be sought pursuant to paragraph (f) above, the QIU shall
promptly notify the Company in writing; provided that the failure to notify
the
Company shall not relieve it from any liability that it may have under paragraph
(f) 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 Company shall not relieve it from any
liability that it may have to the QIU otherwise than under paragraph (f)
above. If any such proceeding shall be brought or asserted against
the QIU and it shall have notified the Company thereof, the Company shall retain
counsel reasonably satisfactory to the QIU (who shall not, without the consent
of the QIU, be counsel to the Company) to represent the QIU and shall pay the
fees and expenses of such counsel related to such proceeding, as
incurred. In any such proceeding, the QIU shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be
at
the expense of the QIU unless (i) the Company and the QIU shall have mutually
agreed to the contrary; (ii) the Company has failed within a reasonable time
to
retain counsel reasonably satisfactory to the QIU; (iii) the QIU shall have
reasonably concluded that there may be legal defenses available to it that
are
different from or in addition to those available to the Company; or (iv) the
named parties in any such proceeding (including any impleaded parties) include
both the Company and the QIU and representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interest
between them. The Company 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 Company agrees
to
indemnify the QIU from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at
any time the QIU shall have requested that the Company reimburse the QIU for
fees and expenses of counsel as contemplated by this paragraph, the Company
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 Company of such request and (ii) the Company shall not have
reimbursed the QIU in accordance with such request prior to the date of such
settlement. The Company shall not, without the written consent of the
QIU, effect any settlement of any pending or threatened proceeding in respect
of
which the QIU is or could have been a party and indemnification could have
been
sought hereunder by the QIU, unless such settlement (x) includes an
unconditional release of the QIU, in form and substance reasonably satisfactory
to the QIU, 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 the QIU.
27
indemnifying
the QIU thereunder, shall contribute to the amount paid or payable by the QIU
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
and
the Guarantors on the one hand and the QIU on the other from the offering of
the
Securities or (ii) if the allocation provided by clause (i) is not permitted
by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) but also the relative fault of
the
Company and the Guarantors on the one hand and the QIU 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 and the
Guarantors on the one hand and the QIU 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, as set forth in the
table on the cover of the Prospectus, bear to the total underwriting discounts
and commissions received by the QIU. The relative fault of the
Company and the Guarantors on the one hand and the QIU 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 any Guarantor
or by the QIU and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission.
9. Termination. This
Agreement may be terminated in the absolute discretion of the Representatives
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 Shares, 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, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade; (ii) trading of any securities
issued or guaranteed by the Company shall have been suspended on any exchange
or
in any over-the-counter market; (iii) a general moratorium
on
commercial banking activities shall have been declared by federal or
28
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 Representatives is material
and
adverse and makes it impracticable or inadvisable to proceed with the offering,
sale or delivery of the Shares 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.
(b) If,
after giving effect to any arrangements for the purchase of the Shares of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and
the Company as provided in paragraph (a) above, the aggregate number of Shares
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 number of Shares
to be purchased on such date, then the Company shall have the right to require
each non-defaulting Underwriter to purchase the number of Shares that such
Underwriter agreed to purchase hereunder on such date plus such Underwriter’s
pro rata share (based on the number of Shares that such Underwriter agreed
to
purchase on such date) of the Shares 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 Shares of a
defaulting Underwriter or Underwriters by the non-defaulting Underwriters and
the Company as provided in paragraph (a) above, the aggregate number of Shares
that remain unpurchased on the Closing Date or the Additional Closing Date,
as
the case may be, exceeds one-eleventh of the aggregate amount of Shares 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 Shares 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 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
29
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.
(b) If
(i) this Agreement is terminated pursuant to Section 9, (ii) the Company for
any
reason fails to tender the Shares for delivery to the Underwriters or (iii)
the
Underwriters decline to purchase the Shares for any reason permitted under
this
Agreement, 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.
30
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; and (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.
(c) Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
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,
|
MCMORAN
EXPLORATION CO.
By:
/s/ Xxxxxxxx X. Xxxxx
Name: Xxxxxxxx X. Xxxxx
Title:Senior Vice President and Treasurer
Accepted:
November 1, 2007
|
|
|
|
XXXXXXX
LYNCH, PIERCE, XXXXXX & XXXXX
|
|
INCORPORATED
|
|
|
|
For
itself and on behalf of the
|
|
several
Underwriters listed
|
|
in
Schedule 1 hereto.
|
|
|
|
By:
|
XXXXXXX
LYNCH, PIERCE, XXXXXX & XXXXX
|
|
INCORPORATED
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|
By:
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/s/
Xxx Xxxxx
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Authorized
Signatory
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Schedule
1
Underwriter Number
of Shares
X.X.
Xxxxxx Securities
Inc. 1,068,750
Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated 1,068,750
Xxxxxxxxx
& Company,
Inc. 112,500
______
Total 2,250,000
Exhibit
A
LOCK-UP
AGREEMENT
November
1, 2007
X.X.
Xxxxxx Securities Inc.
Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
As
Representatives of the
several
Underwriters listed
in
Schedule 1 to the Underwriting Agreement
c/o
X.X.
Xxxxxx Securities Inc.
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
0
Xxxxx
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Re: McMoRan
Exploration Co.--- Public Offerings
Ladies
and Gentlemen:
The
undersigned understands that you,
as Representatives of the several Underwriters, propose to enter into an
Underwriting Agreement (the “Convertible Underwriting Agreement”) with McMoRan
Exploration Co., a Delaware (the “Company”), providing for the public offering
(the “Convertible Public Offering”) by the several Underwriters named in
Schedule 1 to each of the Convertible Underwriting Agreement and the Common
Underwriting Agreement (as defined below) (the “Underwriters”), of 1,500,000
shares of the Company’s Mandatory Convertible Preferred Stock of the Company
(the “Convertible Securities”) and (ii) an Underwriting Agreement (the “Common
Underwriting Agreement” and, together with the Convertible Underwriting
Agreement, the “Underwriting Agreements”) with the Company, providing for the
public offering (the “Common Public Offering” and, together with the Convertible
Public Offering, the “Public Offerings”) by the Underwriters, of 11,000,000
shares of common stock, par value $0.01 per share (the “Common Stock”), of the
Company (the “Common Securities” and, together with the Convertible Securities,
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 Offerings 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
Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and X.X. Xxxxxx
Securities Inc. on behalf of the Underwriters, the undersigned will not, during
the period ending 90 days after the date of each prospectus relating to the
Public Offerings (each, a “Prospectus”), (1) offer, pledge, announce the
intention to sell, 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 Securities of the Company or any securities convertible into
or
exercisable or exchangeable for Securities (including without limitation, Common
Stock 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 (2) enter into any swap or other agreement that transfers, in whole
or in part, any of the economic consequences of ownership of the 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. In addition, the undersigned agrees that, without the
prior written consent of Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
and X.X. Xxxxxx Securities Inc. on behalf of the
Underwriters, it will not, during the period ending 90 days after the date
of
the Prospectus relating to such Public Offering, 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. The foregoing restriction shall not apply to (i) transfers of
shares of Common Stock or options to purchase the Common Stock made as a bona
fide gift or gifts, provided that the donee or donees thereof agree to be bound
by the restrictions set forth herein, (ii) transfers of shares of Common Stock
or options to purchase the Common Stock made to any trust for the direct or
indirect benefit of the undersigned or the immediate family of the undersigned,
provided that the trustee of the trust agrees to be bound by the restrictions
set forth herein, and provided further that any such transfer shall not involve
a disposition for value or (iii) transfers of shares of Common Stock to the
Company in satisfaction of any tax withholding obligation of the undersigned
or
in payment of the exercise price for any stock option exercised by the
undersigned; provided, however, that in the case of any transfer clause (i),
(ii), or (iii) of the prior sentence, neither the undersigned nor the recipient
shall be required to, or voluntarily, file a report under Section 16 of the
Exchange Act of 1934, as amended (the “Exchange Act”), reporting a reduction in
beneficial ownership of Common Stock during the Restricted Period.
Notwithstanding
the foregoing paragraph, 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 Common
Stock
to be sold thereunder, the undersigned shall be released form all obligations
under this Letter Agreement. The undersigned understands that the
Underwriters are entering into the Underwriting Agreement and proceeding with
the Public Offerings in reliance upon this Letter Agreement.
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:
Title: